Abhiraj Kuer Vs. Debendra Singh 
INSC 271 (15 September 1961)
GUPTA, K.C. DAS WANCHOO, K.N.
CITATION: 1962 AIR 351 1962 SCR (3) 627
CITATOR INFO :
R 1962 SC 356 (19) R 1981 SC 178 (58)
Hindu Law-Banaras School of Mitakshara
law--Adoption of wife's sister's daughter's son-Validity.
The appellant as reversioner sued for a
declaration that the adoption of respondent 1 by respondent 2 to her deceased
husband was invalid in law and respondent 1 acquired no right to the properties
left by the husband of respondent 2.
The parties were governed by the Banaras
School of Mitakshal a Hindu law and respondent 1 was the sister's daughter's
son of respondent 2. The question was whether a wife's sister's daughter's son
could 'be validly adopted to a person governed by the Banaras School of
Mitakshara Hindu Law. The High Court answered it in the affirmative and
dismissed the suit. Reliance wag placed on behalf of the appellant in this
Court on Nanda Pandit's Dattak Mimansa which specifically ,excluded a wife's
sister's daughter's son for the purpose of adoption on the ground of
incongruous relationship (Viruddha Sambandha) as also on the text of
Ashvalayana interdicting marriage with a sapinda, sagotra and viruddha
sambandha girl such as a wife's sister's daughter on which the author of Dattak
Mimansa had relied.
It was-contended that when a positive
statement in the text was followed by a negative one, the latter 628 containing
the prohibition must be held to be mandatory and that in any case since the
prohibition against marriage to a sapinda or sagotra girl was mandatory, the
prohibition against marriage to a Viruddha Sambandha girl must also be equally
Held, that the contentions were without
substance and must fail.
Adoption of a wife's sister's daughter's son
is legally valid under the Banaras School of Mitakshara Hindu law.
None of the reasons which rendered marriage
to a sapinda or sagotra girl invalid were present in the case of a marriage to
a Viruddha Sambandha girl and the rule against marrying a Viruddha Sambandha
girl was not intended by its author to be mandatory. The extension of the rule
of Viruddha Sambandha to adoption made by Nanda Pandit was not meant by him to
Minakshi v. Ramanada, (1886) I.L.R. 11 Mad.
Held, further, that the marriage of a Hindu
with his wife's sister's daughter is not invalid in Hindu law.
Ragavendra Rau v.Jayaram Rau, (1897) I.L.R.
20 Mad. 283, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 379 of 1958.
Appeal from the judgment and decree dated
January 17, 1956 of the Patna High Court in Appeal from Original Decree No.
169 of 1947.
L. K. Jha, D. P. Singh, R. K. Garg, M. K.
Ramamurthi and S. C. Agarwal, for the appellant.
R. C. Prasad, for the respondent.
1961. September 15. The Judgment of the Court
was delivered by DAS GUPTA, J.-Can a wife's sister's daughter's son be validly
adopted to a person governed by the Benaras School of the Mitakshara Hindu Law
? That is the main question raised in this appeal brought on a certificate
granted by the High Court at Patna. The plaintiffs who would succeed to the
properties left by Babu Ram Singh on the death 629 of his widow but for the
adoption of Devendra Singh which this widow made on June 9, 1935, brought the
present suit for a declaration that Devendra Singh was not adopted by the
second defendant, Babu Ram Singh's widow and that in any case, the adoption is
invalid in law and so Devendra Singh acquired no right in the properties left
by Babu Ram Singh.
The main ground on which the adoption is
attacked as invalid is based on the fact that Devendra Singh is Babu Ram
Singh's widow's sister's daughter's son. The other ground raised in the plaint
based on the plaintiff's allegation that Babu Ram Singh was governed by Mithila
School of Hindu Law was negatived by the courts below and has been abandoned
before us. No dispute is also raised now as regards the factum of adoption. The
only question that arises in this appeal therefore is whether the adoption of a
wife's sister's daughters son is valid in law. The High Court answered this
question in the affirmative and dismissed the suit. It is against that decision
that the present appeal has been preferred.
In support of his contention that such an
adoption is invalid in Hindu Law reliance is placed by the learned counsel on
the following passage of Nanda Pandit's Dattak Mimansa :(see Whitley Stokes's
Hindu Law Books at pp. 590 and 591).
17. Accordingly, the brother, paternal and
maternal uncles, the daughter's son, and that of the sister, are excluded : for
they bear no resemblance to a son.
18. Intending this very position, it is
declared in the sequel, by the same author:
"The daughter's son, and the sister's
son, are declared to be the sons of Cudras. For the three superior tribes, a
sister's son, is no.
where mentioned as a son. Here even the 630
term "sister's son" is illustrative of the whole not resembling a
son, for prohibited connection is common to them all. Now, prohibited
connection is the unfitness of the son proposed to be adopted to have been
begotten by the individual himself through appointment to raise issue on the
wife of another.
19. The mutual relation between a couple,
being analogous to the one, being the father or mother of the other, connection
is forbiden: as for instance-the daughter of the wife's sister, and the sister
of the paternal uncle's wife". The meaning of the text is this. Where, the
relation of the couple, that is of the bride and bridegroom, bears analogy to
that of father or mother ; if the bridegroom be, as it were, father of the
bride, or the bride stand in the light of mother, to the bridegroom, such a
marriage is a prohibited connection. The two examples illustrate these cases in
20. In the same manner as in the above text,
of the Grihaparisistha, on marriage, prohibited connection, in the case of
marriage, is excepted and so in the case in question, one who if begotten by
the adopter, would have been the son of a prohibited connection, must be
excepted; in other words, such person in to be adopted, as with the mother of
whom, the adopter might have carnal knowledge.
It is urged that in view of this specific
exclusion of a wife's sister's daughter's son from the list of those who are
fit for adoption there is no escape from the conclusion that such an adoption
would be invalid in law. Learned Counsel-has emphasised that great authority
attaches to all statements of law as regards adoption that are contained in
Dattak Mimansa. There is no doubt that for many years now the Dattak Chandrika
of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to 631 be of
great authority on all questions of adoption. It is true that Prof. Jolly in
his Tagore Law Lectures had in no uncertain terms characterised the latter to
be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra
Sarkar while writing in the latter part of the last century subjected many of
Nanda Pandit's views to unfavorable criticism. In spite of all this the Privy
Council in Bhagwan Singh v. Bhagwan Singh(1) did recognise that both the Dattak
Mimansa and Dattak Chandrika had been received in courts of law including the
Privy Council as high authorities and after drawing attention to Lord
Kingsdown's statements as regards these in Rungama v. Atchama (2) and Sir James
Colvile's statement in Collector of Madura v. Moottoo Ramlinga Sathupathy(3),
stated thus :",To call it (i.e., Dattak Mimansa), infallible is too strong
an expression, and the estimates of Sutherland and of West and Buhler, seem
nearer the true mark; but it is clear that both works must be accepted as
bearing high authority for so long a time that they have become embedded in the
general law." While saying this mention must also be made of the
observations of the Privy Council in Sri Balusu Gurulingaswami v. Sri Balasu
Ramalakshmamma(4) decided on the same date (March 11, 1899) but immediately
before Bhagwan Singh's Case, was decided, expressing their concurrence with the
view that caution was required in accepting the glosses in Dattaka Mimansa and
Dattak Chandrika where they deviate from or added to the Smirities.
There can be no doubt that in laying down the
rule that the adoption of the son of a woman who could not have been married by
the adoptive father because of incongruous relationship (Viruddha Sambandha)
Nanda Pandit was adding to the existing state of law. It 'is interesting to
notice here that commenting on what Saunaka had said in describing the' ritual
of adoption that a (1) (1899) L.R. 26 I.A. 153, 161.
(2) (1846) T.A. 1, 97.
(3) (1863) 12 M.I.A. 397, 437.
(4) (1899) L.R. 26 I.A. 113,136.
632 son should be adopted the Dattaka
Chandrika observed at p. 14 :(Reflection of a son-The resemblance of a son,or
in other words the capability to have been begotten, by the adopter, through
appointment, and so forth). (Sutherland's translation). The Dattak Mimansa
adopts this view, and introduces the further doctrine of (Viruddha Sambandha)
relationship as a bar to adoption.
It is unnecessary for us to examine what
authority should be attached to this serious addition to the texts for
determining who can be adopted, as for reasons to be presently mentioned we are
of opinion that assuming that this rule should be accepted as of authority
Nanda Pandit has stated this merely as a recommendation and not as a mandatory
prohibition. For many years now courts have recognised the position that not
only the Dharma Sutras and Grihya Sutras but also the commentaries thereon and
digests mingle without hesitation statements of law which are intended to be
recommendations merely with statements which are intended to be mandatory. In
Balu Gurulingaswami's case to which reference has just been made the Privy
Council pointed out that recent extension of the study of Sanskrit had
strengthened the view of Sir William Macnaughten that "it by no means
follows that because an act has been prohibited it should therefore be
considered illegal. The distinction between the vinculum juris and the vinculum
pudoris is not always discernible," and adding to the previous statement
of the Board in Rao Balwant Singh v. Rani Kishori(1) decided in the previous
year the Privy Council observed these ,words of caution in Balusu Gurulingaswami's
case :.lm15 "They now add that the further study of the subject necessary
for the decision of these (1) (1898) L.R. 25 I.A. 69.
633 appeals has still more impressed them
with the necessity of great caution in interpreting books of mixed religion,
morality and law, lest foreign lawyers, accustomed to treat as law what they
find in authoritative books and to administer a fixed legal system, should too
hastily take for strict law precepts which are meant to appeal to the moral
sense, and ,should thus fetter individual judgments in private affairs, should
introduce restrictions into Hindu society, and impart to it an inflexible
rigidity never contemplated by the original law givers." The importance of
this caution has by no means decreased in the years that have gone by.
It is therefore necessary to examine the
words used by Nanda Pandit himself in laying down this rule against Viruddha
Sambandha adoption. It has to be noticed that while he says (One who if
begotten by the adopter would have been the son of a prohibited connection must
be excepted-Sutherland's translation), he does not say anything about what
would happen if Viruddha Sambandha Putra was adopted. If the rule was intended
to be mandatory it is reasonable to expect that the author who as the treatise
itself shows was a master of logic and well acquainted with the rules of logic
and other rules which deal with the question of mandatory injunctions would
give clear indication of that view. This was all the more reasonable to expect
as he was introducing a new rule.
But he contents himself with saying that We
do not think this language that adoption of a son of a Viruddha Sambandha girl
should be avoided, can properly be taken as mandatory so that the rule must be
obeyed on pain of the adoption being otherwise invalid in law.
Notice has necessarily to be taken in this
connection of the fact that the only authority mentioned by Nanda Pandit
himself against 634 Viruddha Sambandha marriage from which he deduces his rule
of Viruddha Sambandha in matters of adoption is to be found in the text of
Ashvalayana (The bridegroom duly qualified should marry a duly qualified maiden
who is younger in years, is not a sapinda, is not of the same gotra, and whose
marriage does not involve a viruddha sambandha) (contrary relationship).
It is followed a little later by this
(Viruddha Sambandha is that Sambandha
(relation) which is viruddha (contrary or improper) owing to the relationship
(existing) between the bride and the bridegroom (before their marriage) being
similar to that of a father or mother. As for instance the daughter of the
wife's sister (and) the sister of the maternal uncle's wife).
Is this rule mandatory? In other words, would
a marriage of a girl standing in the Viruddha Sambandha relationship to the
bridegroom be invalid. We are not satisfied that this is the position in law.
It is striking that though the numerous Dharma Sutras and Grihya Sutras, deal
at great length with the question of the girl who can be taken in marriage not
one of them with the solitary exception of Ashvalayana has anything to say
about Viruddha Sambandha.
Coming to more recent times the only Digest
in which any reference to this Virudha Sambandha of Ashvalayana can be traced
is in Nirnaya Sindbu (late 16th century). There is no reference to this however
in Raghunandana's exhaustive treatise on marriage udhvahatattva which was
written in the early 16th century. In Nirnaya Sindhu there is only bald
reference to this in these words 635 (There is also the bar to marriage by
sayings (of sages). As in the Grihyaparishistha should not marry a girl of
Viruddha Sambandha (incongruous relationship)"--Viruddha Sambandha was
illustrated thus : "As in the case of wife',% sister's daughter; father's
brother's wife's sister." without any comments whatsoever. It is
reasonable to think that the numerous Smritikars and commentators who have
dealt with the subject of marriage were acquainted with Ashvalayana's text but
(lid not think it necessary to refer to it as it was a recommendatory rule not
considered to be of much importance.
Mr. Jha argues that when a positive statement
is followed by a negative statement, the negative statement should always be
held to contain a prohibitory mandate. Thus he says that as after saying says
next the rules contained in this latter portion should be held to be mandatory.
We can find no justification either in the modern rules of interpretation or in
the rules of interpretation of the old Hindu Shastras for such a view. One
instance where a negative rule following a positive direction on this very
subject of marriage cannot possibly be I considered to be mandatory can be
found in Yajnavalkaya's text :
(Let him, whose life as bachelor is unsullied
marry a wife who possesses good qualities, who has not been enjoyed by another,
who is beautiful, who is not his sapinda, who is younger than himself, who is
not suffering 636 from any complaints, who has brothers, and who does not
belong to the family descended from the same primitive guide." Quite clearly
the rule that a girl suffering from disease should not be married is not a
mandatory rule even though it follows some positive rules about marriage. That
this is the position has been pointed by Vigyaneshwar. It is interesting to
notice in this connection Ashvalayana's own statement about marriage rules in
the fourth section of the first Chapter of his Grihaya Sutra. After saying (a
daughter should be given to a man of understanding) he says in the next text
(that one should marry a girl of understanding, good looks, good conduct and
good qualities) and one who is not suffering from any disease. This also is a
case of a positive statement that a person should marry a girl of
understanding, good looks, good conduct and good qualities, followed by a rule
that a person should not marry a girl suffering from disease. Even so, it
cannot be imagined for a moment that this rule that one should not marry a girl
suffering from disease is a mandatory rule, implying that marriage with such a
girl would be invalid.
In any case, argues the learned counsel, when
we find the three rules against marriage to a sapinda girl and sagotra girl and
Viruddha Sambandha girl in the same text as here and admittedly the first two
are mandatory and marriage to a sapinda girl or a sagotra girl would be invalid
there is no reason why the same result should not follow on breach of the third
rule against marrying a Viruddha Sambandha girl.
The reasons why marriage to a sapinda girl or
a sagotra girl has always been held to be invalid are succinctly stated by
Raghunandana in his Udhvahatattva in a passage which has been translated thus
by Dr. Jogendra Nath Bhattacharyya in his Commentaries on Hindu Law; Third
Edition, Vol. I at P.
188:637 "The negative ordinances,
prohibiting marriage with girls of the same gotra, pravara etc., are parudasa
(exceptional clauses) having reference to a vidhi; they are also prohibitions
proper, like the prohibitory rule about the sexual union on parva days, because
they forbid such marriages by the accompaniment of condemnatory and penance
clauses, (See Texts of Apastamba. and Sumantu), (cited on p. 187) and in view
also of the fact that such marriages may spring from natural inclination.
The term wife is like the terms yupa
(sacrificial post) ahavaniya (sacrificial fire), and denotes a female taken in
marriage with occult ceremonies. Therefore, where a sapinda or a sagotra girl
is taken in marriage, she does not become a wife." It is a clear that none
of the reasons which justify the view that a breach of the first two rules in
Ashvalayana's text viz., the rules against marriage of a sapinda girl, or a
sagotra girl, should have the consequence that the marriage should be invalid
are present in the case of a breach of the third rule, which is against
marrying a Viruddha Sambandha girl.
It appears clear to us that Ashvalayana
himself did not intend the rule against marrying a Viruddha Sambandha girl as a
mandatory prohibition. This must have been even more clear to Nanda Pandit and
so when extending Viruddha Sambandha to adoption on the %-cry basis of
Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not
have but intended his rule against Viruddha Sambandha adoption as a mere
recommendation and not a mandatory prohibition.
Our attention was drawn to a decision of the
Madras High Court in Minakshi v. Ramanada where the learned judges observed:(1)
(1886) I.L.R. 11 Mad. 49.
638 "In the case of marriage., there are
three prohibitions, viz., (1) The couple between whom marriage is proposed
should not be sapindas;
(2) They should not be sagotras; and (3)
There should be no Viruddha Sambandha or contrary relationship as would render
sexual connection between them incestuous." The real question which was
before the Full Bench 'Was whether there can be valid adoption under the Hindu
law if a legal marriage is not possible between the person for whom the
adoption is made and the mother of the boy who is adopted, in her maiden state.
In the case before the Full Bench, the adoptee's mother was a sagotra of the
adoptive father, and so, there could be no legal marriage between them. It was
not necessary there-"ore for the learned judges in the Minakshi's case to
consider whether the Viruddha Sambandha rule against marriage was mandatory or
We are not aware of any decision in any of
the High Courtís where Nanda Pandit's rule against Viruddha Sambandha adoption
has been considered to be a mandatory, prohibition.
For the reasons discussed above we are of
opinion that this rule introduced by Wanda Pandit is only a recommendation and
consequently it is of no avail to the appellant to show that the adoption of
wife's sister's daughter's son is invalid.
Mr. Jha then tried to take advantage of the
rule which has been accepted by almost all the High Courtís except Bombay that
there can be no valid legal adoption unless a legal marriage is possible
between the person for whom the adoption is made and the mother of the boy who
is adopted, in her maiden state, by urging that there can be no legal marriage
between a person and, his wife's sister's daughter.
Assuming for the present that it is no 630
longer open to challenge the correctness of this rule at least so far as the
Banaras School is concerned, we are still of the opinion that this argument is
of no avail, for the simple reason that we see no reason to think that there
can be no legally valid marriage between a person and his wife's mister's
daughter. For the only argument in support of the contention, that there can be
no such legal marriage between persons thus related, the learned counsel had to
fall back upon Asvalayana's Viruddha Sambandha rule. That however as we have
already shown, is in our opinion only a recommendation and cannot support a
proposition that a marriage in breach of the Viruddha Sambandha rule is
An early as 1878 Dr. Gooroodas Banerjee
(whose erudition equalled his orthodoxy) dealing with this question in his
Tagore Law Lectures on the Hindu Law of Marriage and Stridhan observed thus (p.
"The prohibition by reason of affinity,
which exsts in other systems, has no place in Hindu Law. But the prohibition of
marriage with sapindas to some extent supplies its place and so did the
prohibition of widow marriage. The Hindu Law, however, does not prohibit
marriage with the wife's sister, or even with her niece or her aunt." Dr.
Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition)
Vol. I, also stated after referring to what has been mentioned in Nirnaya
Sindhu against marriage with the wife's sister's daughter (already quoted
"'Instances of marriage with wife's
sister's daughter, and wife's brother's daughter, are also not unknown in
Bengal though, Hindu sentiment is strong against such marriages." The
question was directly raised in Ragavendra Rau v. Jayaram Rau (1). Mr. Justice
Subramania Ayyar and Mr. Justice Benson relying on Dr. Gooroodas Banerjee's
statement of the law (1) (1897) I.L.R. 20 Mad. 283.
640 and also on Syama Charan Sarkar's
VyavasthaDarpan, Dr. Bbattacharyya's commentaries on Hindu Law and certain
other text books held that marriage between a man and his wife's sister's
daughter is valid. The learned judges pointed out that in South India at least
there was little to 'indicate that such marriages are disapproved of "by
the members of any section of the community." In our opinion a marriage of
a Hindu with his wife's sister's daughter is not invalid in law even though it
may not be liked by certain people. Mr. Jha's second argument based on the rule
which we have assumed to be not open to challenge for the purpose of this case
that there can be no valid adoption unless a legal marriage is possible between
the person for whom the adoption is made and the mother of the boy who is
adopted in her maiden state, must therefore fail.
We therefore hold that the High Court was
right in its conclusion that the adoption of a wife's sister's daughter's son
is valid in law. The appeal is accordingly dismissed with costs.