Smt. Vijayalakshmamma
& Anr Vs. B. T. Shankar [2001] Insc 170 (26 March 2001)
D.P.
Mohapatra & Doraiswamy Raju. Raju, J.
L...I...T.......T.......T.......T.......T.......T.......T.. J
The
appellants (defendants) have filed the above appeal against the judgment and
decree dated 29.5.1998 of a Division Bench of the Karnataka High Court in
R.F.A. No.14 of 1989 partly allowing their appeal but in other respects
affirming the judgment and decree dated 7.10.1988 of the Civil Judge, Madhugiri,
in Original Suit No.83 of 1987, decreeing the suit for partition and separate
possession, as prayed for.
The
case of the respondent-plaintiff is that he has been adopted on 22.6.1970 as
per the customs prevalent in the community by Sharadamma, wife of one A.T. Nanjappa
Rao, who died in the year 1968 leaving behind him the suit schedule properties
and also two widows, Smt. Sharadamma, the first wife, and Smt. Neelamma, the
second wife. It was urged for the plaintiff that since late Nanjappa Rao had no
issues through his wives, named above, the plaintiff, the son of Nanjappa Raos
elder brother, came to be adopted by both the widows and the factum of adoption
was also evidenced by an Adoption Deed written on the same day and, therefore,
he became the absolute owner of the suit schedule properties.
The
adoption so made was claimed to have been acted upon by entering the name of
the plaintiff in the revenue records as a son of late Nanjappa Rao and that he
had been managing all the properties thereafter. Sharadamma, the senior widow,
died on 25.5.1984 after prolonged illness. Since disputes arose between the
plaintiff and Sharadamma on one hand and the junior widow, Neelamma, on the
other hand, the junior widow in collusion with another brother of Nanjappa Rao
by name B.S. Krishnaoji Rao and his wife started giving trouble to the
plaintiff by projecting a claim of adoption of their daughter by name Vijayalakshmamma
in the year 1970 when she was nine years old but reduced into writing and
affirmed under a registered deed dated 26.3.1984, and further said to be
fortified by a Will dated 28.3.1984 jointly claimed to have been executed by
late Sharadamma and Neelamma. After asserting a claim for partition of his
share of the properties by issuing a notice preceding the filing of the suit, the
respondent filed Original Suit No.83/87 praying for a decree for declaration
that he is the only adopted son of late Nanjappa Rao and for partition of his
3/4th share in the suit schedule properties by metes and bounds and for
delivery of separate possession of his share and for future mesne profits from
the date of suit till the date of delivery of separate possession to be
determined under Order 20 Rule 12 of the C.P.C. The stand of the plaintiff also
was that after the death of Sharadamma, the Appellants-defendants herein with
the help of their men were able to dispossess the plaintiff from some of the
properties necessitating the suit claim as noticed above.
The
junior widow of late Nanjappa Rao was impleaded as the second defendant and the
proclaimed adopted daughter Vijayalakshmamma was impleaded as the first
defendant to the suit. The defendants filed a common written statement
disputing the facts averred as well as claims made by the plaintiff by
contending that there was no adoption of the plaintiff by Sharadamma as
claimed; that the unregistered deed of adoption was a fabricated one and no
rights can be claimed on the basis of such a document. The further stand was
that the adoption of the first defendant as evidenced by the registered
document dated 26.3.1984 (Exb. D.2) and the Will dated 28.3.1984 (Exb. D.1)
fortified the claim of adoption projected by the defendants and at no point of
time the plaintiff was the owner of the properties in question.
As an
alternate plea, it was projected that in any event the second defendant-junior
widow of late Nanjappa Rao, having not either accorded her consent or
participated in the so-called adoption of the plaintiff by Sharadamma, the
senior widow, the adoption of the plaintiff, if at all, could be for Sharadamma
only and not for or the estate of her husband, late A.T. Nanjappa Rao, and that
no adoption could have been properly or legally made of the plaintiff without
the consent of both the widows of late Nanjappa Rao.
In
support of the claim of the plaintiff, PWs. 1 to 8 were examined of whom P.W.1
being himself, P.W.2, the Purohit, who was said to have performed the adoption
ceremony, P.Ws. 7 & 8 the natural parents, P.W.6, the natural maternal
grand father of the plaintiff and P.Ws. 3 to 5 neighbours of the plaintiff, who
were said to have attended the adoption ceremony. P.Ws. 4 & 5 were also
said to have attested the adoption deed Exb. P.1, the unregistered deed of
adoption of the plaintiff. Exbs. P.1 to P.5 were also marked as material
documentary evidence.
To
prove the claim of the defendants, D.Ws. 1 to 5 were examined in addition to
marking Exbs. D.1 to D.7. On a consideration of the oral and documentary
evidence on record, the learned Trial Judge decreed the suit as prayed for,
after adverting to in great detail the overwhelming materials and evidence on
record, rejecting at the same time the perfunctory evidence placed on record by
the defendants.
Aggrieved,
the appellants pursued the matter in appeal before the High Court and, as
noticed earlier, the Division Bench affirmed the findings of the learned Trial
Judge on the question of factum of adoption of the plaintiff while equally
confirming the findings that the defendants miserably failed to prove the case
projected by them of adoption of the first defendant. The registered deed of
adoption (Exb.D.2) and the Will (Exb. D.1) were held to have not been proved in
respect of their genuineness and due execution as well by examining either the Attestors
or by taking any steps for proving the signature of Sharadamma, the senior
widow, on them. At the same time while considering the alternate plea of the
appellants, the High Court held that since the adoption of the plaintiff was
shown to have been made only by Sharadamma, the senior widow, without the
actual consent and participation of the junior widow, who was alive at that
time, the adoption was held to be for Sharadamma, the senior widow, alone and
not on behalf of both the widows of late Nanjappa Rao. Keeping in view the
legal position that on the death of Nanjappa Rao in the year 1968 under the
provisions of the Hindu Succession Act, 1956, the widows came to inherit the
suit schedule properties with equal share, it was held the adoption of the
plaintiff by Sharadamma alone without the consent of the second wife did not
affect the share of Neelamma in the properties and the plaintiff would be
entitled to inherit only the share of late Sharadamma alone.
To
that extent, the judgment and decree passed by the Trial Court came to be
modified into one for an half share in favour of the plaintiff as against the
3/4th share granted by the Trial Court. Not satisfied with the partial relief
granted, the appellants have come before this Court.
Mr. T.L.
Viswanatha Iyer, learned senior counsel, while inviting our attention to the
relevant provisions of the Hindu Adoptions and Maintenance Act, 1956
(hereinafter referred to as `the Act) contended that when there are two
co-widows, one widow alone cannot adopt a son or daughter without the consent
of the other co-widow, for or the estate of the late husband. The reason,
according the learned counsel, being that as per Section 12 of the Act the
adopted son or daughter shall be deemed to be the child of his or her adoptive
father or mother for all purposes with effect from the date of adoption. Argued
the learned senior counsel further that the proviso to Section 7 and the
Explanation thereto must necessarily be read into Section 8 providing for
adoption by a female Hindu and in case where there are more than one wife, the
right to adopt in such cases has to or can be exercised only either jointly by
both the widows acting together or not at all. Hence, it was urged that the
so-called adoption of the plaintiff- respondent was neither proper nor valid in
law to clothe him with any rights, as the adopted son of and that too in the
properties left behind by, late Nanjappa Rao. The judgment of the Courts below
was challenged only on these legal submissions and not based on any challenge
to the factum of proof of adoption of the plaintiff or on the question or proof
or the legality and propriety of the adoption of first defendant projected by
the appellants but rejected concurrently by the Courts below. The learned
counsel appearing for the respondent adopted the reasoning of the Courts below
to justify the conclusions arrived at and sought to sustain the decree passed
in favour of his client.
There
has been no cross appeal on the part of the plaintiff to challenge the
modification in the decree allowed by the High Court by reducing the share of
the plaintiff from 3/4th to one half only.
To
have a proper appreciation of the legal submissions of the principles of law
pleaded on behalf of the appellants, it becomes necessary to have a proper
perspective of the position of law governing the matter as on the date of
coming into force of the Hindu Adoption and Maintenance Act, since the Act in
question was not only to amend but also codify the law relating to adoption and
maintenance comprehensively dealing with every phase and aspect of the law
specifically dealt with and further more with a provision of the nature in
Section 4 of the Act giving an overriding effect to the provisions of the Act
over any text, rule or interpretation of Hindu Law or any custom or usage as
part of that law or any other law in force with respect to which any provision
has been made in the Act or insofar as it is inconsistent with any or the
provisions of the Act. The need to delve at length with the various principles
governing adoption under the Shastric Hindu Law based on the ancient texts is
considerably averted due to the law laid down by this Court on more than one
occasion, after an exhaustive review of the case law rendered by the Judicial
Committee of the Privy Council and some of the High Courts.
Every
male Hindu who is of sound mind and has attained the age of discretion though
he be a minor was held entitled to, subject to the provisions of any law for
the time being in force, take a son in adoption provided he has no son,
grandson or great grandson, natural or adopted living at the time of such
adoption. When a Hindu makes an adoption during his life time, his wife would
necessarily join him in the essential religious ceremonies to be performed therefor
and, therefore, he was not obliged to take the consent of the wife and the
assent of the wife has never been considered to be a condition precedent for
the exercise of the right by the husband. The nature and character as also the
purport and object of an adoption came to be considered in great detail while dealing
with the capacity or a right of a Hindu woman to adopt, in V.T.S. Chandrasekhara
Mudaliar vs Kulandaivelu Mudaliar & Ors. (AIR 1963 SC 185), K.Subba Rao,
J., as the learned Judge then was, on an elaborate consideration of the
relevant case law, held as follows:
12. It
is common place that a widow adopts a boy to her husband and that nobody except
a widow can make an adoption to her husband. The reason is that Hindu law recognises
her not merely as an agent of her husband but, to use the felicitous Hindu
metaphor, as his surviving half;
see Brihaspati
XXV, II and Yagnavalkya I, 156. In Sarkar Sastris Hindu Law, 8th Edn. Pp
161-162 it is stated that though according to the commentaries the widow adopts
in her own right, the modern view is that she acts merely as a delegate or
representative of her husband, that is to say, she is only an instrument
through whom the husband is supposed to act. Mulla in his book Principles of
Hindu Law stated that she acts as a delegate of her husband. The Judicial
Committee in Balusu Gurulingaswami vs Balusu Ramalakshmamma, ILR 22 Mad. 398 at
p.408 (PC), pointed out that if the consent of the husbands kinsmen has been
obtained, the widows power to adopt is co-extensive with that of her husband.
It is, therefore, clear that a Hindu widow in making an adoption exercises a
power which she alone can exercise, though her competency is conditioned by
other limitations which we shall consider at a later stage.
Whether
she was authorised by her husband to take a boy in adoption or whether she
obtained the assent of the sapindas, her discretion to make an adoption, or not
to make it, is absolute and uncontrolled. She is not bound to make an adoption
and she cannot be compelled to do so. But if she chooses to take a boy in
adoption there is an essential distinction between the scope of the authority
given by her husband and that of the assent given by the sapindas. As the widow
acts only as a delegate or representative of her husband, her discretion in
making an adoption is strictly conditioned by the terms of the authority
conferred on her.
But in
the absence of any specific authorization by her husband, her power to take a
boy in adoption is coterminus with that of her husband, subject only to the
assent of the sapindas. To put it differently, the power to adopt is that of
the widow as the representative of her husband and the requirement of assent of
the sapindas is only a protection against the misuse of it. It is not,
therefore, right to equate the authority of a husband with the assent of the sapindas.
If this distinction is borne in mind, it will be clear that in essence the
adoption is an act of the widow and the role of the sapindas is only that of
advisers.
As to
what is the object of an adoption, the learned Judge proceeded further to
observe that it would be unnecessary and even be pedantic to consider the old
Hindu Law texts at such a late stage in the evolution of the Hindu law when the
subject was fully and adequately considered from time to time by the Judicial
Committee of the Privy Council and came to be categorically held that the
substitution of a son of the deceased, for the failure of a male issue, for
spiritual reasons is the essence of adoption and the devolution of property is
a mere accessory to it.
Reference
has also been made to the decision in G. China Ramasubbayya vs M. Chenchuramayya
(AIR 1947 PC 124) wherein the two-fold object of adoption was stated to be
(a) to
secure the performance of the funeral rites of the person to whom the adoption
is made; and
(b) to
preserve the continuance of his lineage and reiterated the position that the
validity of the adoption has to be judged by spiritual rather than temporal
considerations and that devolution of property is only of secondary importance.
While
adverting to the question as to why does the Hindu Law insist upon the assent
of the sapinda as a pre-requisite for the validity of an adoption made by a
widow, the learned Judge, on an elaborate consideration of the principles laid
down in the various texts and the catena of case law, held as follows:
17. It
will be seen that the reason for the rule is not the possible deprivation of
the proprietary interests of the reversioners but the state of perpetual
tutelage of women, and the consent of kinsmen was considered to be an assurance
that it was bona fide performance of a religious duty and a sufficient
guarantee against any capricious action by the widow in taking a boy in
adoption.
In Guramma
Bhratar Chanbasappa Deshmukh & Ors., etc. the very learned Judge had an
occasion to deal with the object of adoption and the limitations, if any, on
the said power and held as follows:
8. .
These texts ex facie do not equate a son in existence with a son in the womb.
If the authors of the said treatises intended to equate the one with the other,
they would not have left in the doubt, for such an extension of the doctrine
would introduce an element of uncertainty in the matter of adoption and defeat,
in some cases, the religious object underlying adoption. It is now well settled
that the main object of adoption is to secure spiritual benefit to the adopter,
though its secondary object is to secure an heir to perpetuate the adopters
name. Such being the significance of adoption, its validity shall not be made
to depend upon the contingencies that may or may not happen. It is suggested
that an adoption cannot be made unless there is certainty of not getting a son
and that if the wife is pregnant, there is a likelihood of the adopter
begetting a son and, therefore, the adoption made is void. The texts cited do
not support the said proposition.
Its
acceptance will lead to anomalies. Suppose a husband who is seriously ill and
who had no knowledge of the pregnancy of his wife, makes an adoption; in such
an event, the existence of a pregnancy, of which he has no knowledge,
invalidates the adoption, whether the pregnancy turns out to be fruitful or
not. If he has knowledge of the pregnancy, he will not be in a position to take
a boy in adoption, though ultimately the wife may have an abortion, or deliver
a still-born child or the child born may turn out to be a girl. Further, as it
is well settled law that a son includes a sons son and a grandson of the son,
the pregnancy of a sons widow or a grandsons widow, on the parity of the said
reasoning, will invalidate an adoption.
We
cannot introduce such a degree of uncertainty in the law of adoption unless
Hindu law texts or authoritative decisions compel us to do so. There are no
texts of Hindu law imposing a condition of non- pregnancy of the wife or sons
widow or a grandsons widow for the exercise of a persons power to adopt. The
decisions of the High Courts on the subject discountenance the acceptance of
any such condition. But there is a decision of Sudr Adalut in Narayana Reddi vs
Varadachala Reddi, S.A. No.223 of 1859 MSD 1859, p. 97 wherein it was observed that
it was of the essence of the power to adopt that the party adopting should be
hopeless of having issue. Mr. Mayne commenting upon the said observation drew a
distinction between a husband taking a boy in adoption knowing that his wife
was pregnant and doing so without the said knowledge and stated:
If a
wife, known to be pregnant at the time of adoption, afterwards brought forth a
son, it might fairly be held he was then in existence to the extent of
precluding an adoption .
A
Division Bench of the Madras High Court in Nagabhushanam vs Seshammagaru, ILR 3
Mad. 180 criticised the opinion of the pandits as well as the observation of
Mr. Mayne, and came to the conclusion that an adoption by a Hindu with
knowledge of his wifes pregnancy was not invalid. The Bombay High Court in Shamavahoo
vs Dwarkadas Vasanji, ILR 12 Bom. 202 (note) accepted the said view. A Division
Bench of the Allahabad High Court in Daulat Ram vs Ram Lal, ILR 29 All. 310
followed the Madras and Bombay decisions. No other decision has been brought to
our notice either taking a different view or throwing a doubt thereon.
All
textbooks-Mayne, Mulla, Sarkar Sastri-accepted the correctness of the said view
without any comment.
The question
as to how the adoption could or ought to be made when a Hindu male dies leaving
behind more than one widow came to be considered by this Court in Eramma and
others vs Muddappa (AIR 1966 SC 1137), with particular reference to the Mysore
Hindu Law Womens Rights Act 1933, stipulating that in the absence of an express
prohibition in writing by the husband, his widow, or where he has left more
widows than one, the seniormost of them shall be presumed to have his authority
to make an adoption, and this position was also found to be in conformity with
law in the Bombay others (AIR 1970 SC 1673) this Court held that the
requirement of consent from a sapinda for adoption by a widow was considered to
be necessitated only when the widow has not obtained the consent of her husband
in his lifetime.
While
dealing with the necessity or otherwise to obtain the consent of the female sapinda
in addition to male sapinda of the deceased husband, this Court observed that
if the consent of the husband or sapinda was held to be necessary for the
reason that a woman is incapable of exercising independent judgment in the
matter of deciding whether she should adopt a son to her deceased husband, she
can hardly be a competent adviser to another widow on the same matter and, therefore,
it was held that the absence of consent of a female sapinda would not
invalidate the adoption in a given case.
Speaking
for a Division Bench of the Andhra Pradesh High Sankara Reddi & Ors. (AIR
1957 A.P. 933), K. Subba Rao, CJ., as the learned Judge then was, has
meticulously and exhaustively analysed the case law on the subject pertaining
to adoption made by a senior widow without obtaining the consent of the junior
widow and observed as hereunder :-
11. It
is therefore clear that the presumed incapacity of a woman to arrive at a
balanced and independent judgment connected with matters of adoption was the
foundation of the doctrine of consent. It is futile to enquire at this stage
whether there was any justification for that assumption. It was considered that
the advice of the nearest sapindas would enable the widow to act without any
caprice in the discharge of her religious duty. If that be the reason for the
rule, it would obviously be incongruous to hold that a widow incompetent to act
independently can, relying upon another woman suffering from the same
infirmity, make a valid adoption. It would be more anomalous if it were to be
held that a senior widow with a presumed mental incapacity could sustain her
act by invoking the aid of the junior widow who by the same party of reasoning
would be mentally deficient to a higher degree.
12.
But it is said that, as the proprietary interests of the junior widow would be
affected by the adoption, it is just and equitable that she should be consulted
before the remoter sapindas are consulted. It is true that at one time greater
emphasis was laid on the proprietary interests affected by reason of the
adoption. But that question was finally and authoritatively decided in Amarendra
Nath Man Singh v. Sanatan Singh, ILR 12 Pat 642; (AIR 1933 PC 155 (E), by the
Judicial Committee.
14.
The Judicial Committee in ILR (1948) Mad. 362: (AIR 1947 PC 124) (B), accepted
ILR 12 Pat. 642: (AIR 1933 PC 155) (E), as laying down the correct position on
this aspect of the case. It is therefore clear that the doctrine of consent is
based upon the presumed incompetency of a widow rather than upon the idea of
any interference with the proprietary rights of the sapindas.
15.
But it is contended that the word `sapinda has a comprehensive meaning so as to
take in a widow and there is no justification for excluding her when the
decided cases do not in terms do so. In the Mitakshara, the term `sapinda is
used in the sense of, one of the same body, i.e., a blood relation. But,
according to the Hindu mode of computation, this includes relations within the
seventh degree. The term `sagotra sapinda was used in respect of relations of
the same gotra and binnagotra sapinda for bandhus. Lawfully wedded wives of the
sapindas were also brought under that category. See Gopalchandra Sarkar Sastris
Hindu Law, 8th edition, p. 69. There is, therefore, justification for the
contention that the word `sapinda takes in the widow of the last male holder.
But the principle underlying the doctrine of consent cannot sustain any such
wide interpretation in the present context. The acceptance of this argument
would destroy the principle itself. Indeed all decisions which form landmarks
in the development of the doctrine, either expressly or impliedly use the word in
the sense of male sapindas. In 12 Moo Ind App 397 (PC)(A), the widow of a
divided member took a boy in adoption with the consent of her father-in-law.
Their Lordships, in dealing with that question, observed at p. 441:
In
such a case, therefore, their Lordships think that the consent of the
father-in-law to whom the law points as the natural guardian and venerable
protector of the widow would be sufficient.
22.
Learned counsel for the appellant relied upon a long catena of cases wherein
the preferential right of the senior widow to take a boy in adoption was recognised.
See Ranjit Lal V. Bijoy Krishna, ILR 39 Cal 582 (L), Chukkamma V. Punnamma, 28
Mad LJ 72: (AIR 1915 Mad 775) (M), Muthuswami Naicken V. Pulavaratal, ILR 45
Mad 266: (AIR 1922 Mad 106 (2)(N), Byra Goudu V. Muniammal, 1939-2 Mal LJ 805:
(AIR 1940 Mad 5)(O). These cases lay down a principle applicable to a different
situation altogether. A Hindu with two or more wives may take a boy in adoption
or after his death one of his widows may take a boy in adoption. In such cases
in a competition between two or more wives or two or more widows, Courts were
called upon to decide on the preferential right of the one or other of them.
Invariably, they accepted the doctrine that the elder of the two being the dharmapathni
is entitled to take a boy in adoption unless the husband expressly or by
necessary implication directed otherwise. When once the preferential right of
the senior widow is conceded it follows that the junior widow cannot take a boy
in adoption unless the senior widow agrees. The decisions in 28 Mad LJ 72: (AIR
1915 Mad ILR 39 Mad 772: (AIR 1916 Mad 919 (2) (P), where it was held that an
adoption by the junior widow with the consent of sapindas but without
consulting the senior widow was invalid, can be supported on the aforesaid
principle. As the senior widow who had a preferential right in the matter of
adoption was not consulted, the adoption was held to be invalid. Those
decisions have obviously no bearing on the doctrine of consent evolved by Hindu
Law.
23.
Before closing we should refer to the decision of a Division Bench of the
Madras High Court in Narayanaswami Naick v. Mangammal, ILR 28 Mad 315 (Q),
which is the only direct decision on the point. There the senior widow took a
boy in adoption after having obtained the consent of his sapindas but without
consulting the junior widow. The learned Judges, Davies and Benson, JJ., held
that the adoption was good. At p. 319, the learned Judges observed:
The
junior widow is bound, as a matter of duty, to consent and if as their
Lordships of the Privy Council say (12 Moo Ind App 397 (A)) the consent of
kinsmen is required by reason of the presumed incapacity of women for
independence rather than the necessity of procuring the consent of all those whose
interest in the estate would be defeated by the adoption it would seem that the
omission to consult the co-widow though no doubt improper, would not be a
sufficient reason for holding the adoption to be invalid.
24. We
entirely agree with the aforesaid observations.
While
for family peace and good relationship ordinarily a senior widow should do well
to consult the younger one before introducing a boy into the family, there is
nothing in law which compels her to do so. We therefore hold agreeing with the
learned Judge that the adoption in the present case is valid.
The
said decisions not only succinctly and correctly stated the law on the subject
but seem to accurately accord with the basic principles of law laid down in the
judgments of this Court, noticed supra.
Coming
to the position of law, as found codified, in the Hindu Adoptions and
Maintenance Act, 1956, it is found that apart from the overriding effect given
to the provisions of the Act, Section 5 mandates that no adoption shall be made
after the commencement of this Act by or to a HIndu except in accordance with
the provisions contained in Chapter-II, and proclaims the consequences any
contravention thereof to render such adoption void, thereby neither creating
any rights in the adoptive family nor destroying the rights in the family of
birth. While Section 6 lays down the requisites of a valid adoption, the
provisions of Section 7 deals with the capacity of a male Hindu to take in
adoption whereas Section 8 deals with the capacity of a female Hindu to take in
adoption. It is necessary to set out those provisions to properly consider the
claim made on behalf of the appellants. Section 7 reads as follows :- Capacity
of a male Hindu to take in adoption.Any male Hindu who is of sound mind and is
not a minor has the capacity to take a son or a daughter in adoption:
Provided
that, if he has a wife living, he shall not adopt except with the consent of
his wife unless the wife has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be of unsound mind.
Explanation. If a person has more than one wife
living at the time of adoption, the consent of all the wives is necessary
unless the consent of any one of them is unnecessary for any of the reasons
specified in the preceding proviso.
Section
8 reads, thus Capacity of a female Hindu to take in adoption. Any female Hindu
(a) who
is of sound mind,
(b) who
is not a minor, and
(c) who
is not married, or if married,
whose
marriage has been dissolved or whose husband is dead or has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by
a court of competent jurisdiction to be of unsound mind, has the capacity to
take a son or daughter in adoption.
A
reference to Sections 12 and 14 also become necessary and Section 12 reads as
hereunder :-
12.
Effects of adoption.An adopted child shall be deemed to be the child of his or
her adoptive father or mother for all purposes with effect from the date of the
adoption and from such date all the ties of the child in the family of his or
her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family : Provided that
(a) the
child cannot marry any person whom he or she could not have married if he or
she had continued in the family of his or her birth;
(b)
any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching
to the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth;
(c) the
adopted child shall not divest any person of any estate which vested in him or
her before the adoption.
Section
14 reads, thus
14.
Determination of adoptive mother in certain cases.(1) Where a Hindu who has a
wife living adopts a child, she shall be deemed to be the adoptive mother.
(2)
Where an adoption has been made with the consent of more than one wife, the
senior- most in marriage among them shall be deemed to be the adoptive mother
and the others to be step-mothers.
(3)
Where a widower or a bachelor adopts a child, any wife whom he subsequently
marries shall be deemed to be the step-mother of the adopted child.
(4)
Where a widow or an unmarried woman adopts a child, any husband whom she
marries subsequently shall be deemed to be the step-father of the adopted
child.
A
compendious reading of all the above provisions harmoniously with due regard to
the purpose sought to be achieved will inevitably lead to certain inescapable
consequences. They are
(i) a
female unmarried or if married but satisfying the requirements of clause (c) of
Section 8, conferred with a right to adopt subject to the other provisions of
Chapter-II, and
(ii)
since, unlike the position in the old Hindu Law a Hindu female is not only
adopting for the husband but rendered eligible and entitled to adopt a son or a
daughter in her own right and to herself also if unmarried, it has become
necessary for the Legislature to enact a fiction to the extent that the adopted
child shall be deemed to be the child of his or her adoptive father or mother
for all purposes with effect from the date of adoption, with certain enumerated
consequences also flowing from the same, one of such being that the adopted
child shall not divest any person of any estate which vested in him or her
before the adoption. This Court 1761) after adverting to Section 5 of this Act,
has held as follows :- 7.It is significant that, in this section, the adoption
to be made is mentioned as by or to a Hindu,.
Thus,
adoption is envisaged as being of two kinds. One is adoption by a Hindu, and
the other is adoption to a Hindu.
If the
view canvassed on behalf of the appellant be accepted, the consequence will be
that there will be only adoptions by Hindus and not to Hindus. On the face of
it, adoption to a Hindu was intended to cover cases where an adoption is by one
person, while the child adopted becomes the adopted son of another person also.
It is only in such a case that it can be said that the adoption has been made
to that other person. The most common instance will naturally be that of
adoption by a female Hindu who is married and whose husband is dead, or has
completely and finally renounced the world, or has been declared by a court of
competent jurisdiction to be of unsound mind. In such a case, the actual
adoption would be by the female Hindu, while the adoption will be not only to
herself, but also to her husband who is dead, or has completely and finally
renounced the world or has been declared to be of unsound mind.
[Emphasis
supplied] Adverting to Section 12 of the Act and as to the correctness of the
view taken by the Andhra Pradesh High Andh. Pra. 140] , it was observed as
hereunder:-
8. The
second provision, which was ignored by the Andhra Pradesh High Court, is one
contained in S. 12 itself. The section, in its principal clause, not only lays
down that the adopted child shall be deemed to be the child of his or her
adoptive father or mother for all purposes with effect from the date of the
adoption, but, in addition, goes on to define the rights of such an adopted
child. It lays down that from such date all the ties of the child in the family
of his or her birth shall be deemed to be severed and replaced by those created
by the adoption in the adoptive family. A question naturally arises what is the
adoptive family of a child who is adopted by a widow, or by a married woman
whose husband has completely and finally renounced the world or has been
declared to be of unsound mind even though alive. It is well recognised that,
after a female is married, she belongs to the family of her husband.
The child
adopted by her must also, therefore, belong to the same family. On adoption by
a widow, therefore, the adopted son is to be deemed to be a member of the
family of the deceased husband of the widow. Further still, he loses all his
rights in the family of his birth and those rights are replaced by the rights
created by the adoption in the adoptive family. The right, which the child had,
to succeed to property by virtue of being the son of his natural father, in the
family of his birth, is, thus, clearly to be replaced by similar rights in the
adoptive family, and, consequently, he would certainly obtain those rights in the
capacity of a member of that family as an adopted son of the deceased husband
of the widow, or the married female, taking him in adoption. This provision in
S. 12 of the Act, thus, itself makes it clear that, on adoption by a Hindu
female who has been married, the adopted son will, in effect, be the adopted
son of her husband also. This aspect was ignored by the Andhra Pradesh High
Court when dealing with the effect of the language used in other parts of this
section.
[Emphasis
supplied] It was also emphasised by this Court that the ultimate (supra) by the
Andhra Pradesh High Court is not in any way rendered incorrect while making it
clear at the same time that the restriction placed upon the adopted child under
clause (c) of Section 8 cannot lead to the inference that a child adopted by
the widow will not be deemed to be the adopted son of her deceased husband.
The
legality of the adoption in this case is challenged on the ground of want of
consent of the junior widow (the second wife/second appellant). Though under
Section 7 of the Act, a restriction has been specifically engrafted on the
exercise of power and right of the male Hindu not to adopt, if he has a wife
living, except with the consent of his wife unless the wife has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by
a court of competent jurisdiction to be of unsound mind and the Explanation
further enjoins the necessity of taking the consent of all the wives, if the
person has more than one wife living at the time of adoption, unless the
consent of any one of them has been rendered unnecessary for any of the reasons
specified in the main proviso itself. The question that now requires to be
considered is as to whether the plea on behalf of the appellants that the
proviso and Explanation thereto engrafted in Section 7 can and also should be
dovetailed or read into Section 8, for any justifiable reason or purpose,
deserves or merit our acceptance.
The
nature, object and purpose of the Act in question has already been noticed
supra. The Parliament has consciously and deliberately effected certain vital
and substantial changes in the personal law of the Hindus on several branches
including the law relating to adoptions.
The
statement of objects and reasons, so far as it pertains to the law on adoption
reads as follows:- This part of the Hindu Code deals with the subject of
adoptions and maintenance among Hindus.
2.
With the passing of the Hindu Succession Act, 1956, which treats sons and
daughters equally in the matter of succession, it has now become possible to
simplify the law of adoption among Hindus. The Bill provides for the adoption
of boys as well as girls. There is no longer any justification for allowing a
husband to prevent his wife from taking a child in adoption after his death.
The adoption made by a Hindu widow will hereafter be in her own right. No
person need be divested of any property which has vested in him by reason only
of the fact that subsequent to such vesting an adoption has been made. This
rule of divesting has been the cause of many a ruinous litigation.
[Emphasis
supplied] This Court also endorsed the said position in the Sarangapani Chettiar
& Ors. (AIR 1978 SC 1051) vide Para
13.
The extent to which and the areas and aspects or facets of old Hindu Law which
required modernisation, modification and alteration are matters of legislative
policy and merely because a particular change has been brought into effect in
respect of one facet of law in force and a provision has been made specifically
only to that limited extent, the Courts neither by means of an interpretative
process nor under the guise of ensuring parity in what it may seem to Court
would be desirable to achieve uniformity (an area once again exclusively
pertaining to policy of legislation) add to or alter the language, structure
and content of a provision by reading into it what was not specifically
intended or what perhaps was deliberately and consciously avoided by the
Parliament itself. Section 7 bears the caption `Capacity of a male Hindu to
take in adoption in the same manner the immediately following Section 8 bears
the heading `Capacity of a female Hindu to take in adoption. When the
Parliament resolved to provide for and insist upon the obtaining of the consent
of the wife or if there are more than one living wives the consent of all of
them, unless they or any one of them suffered any of the enumerated infirmities
rendering such consent unnecessary, the conscious and positive as well as
deliberate omission to provide for a female Hindu seeking or obtaining any such
consent from a co or junior widow is a definite pointer to indicate that the
legislative intent and determination was not to impose any such clog on the
power specifically conferred upon the female Hindu - may be for the obvious
reason that under the scheme of the Act the Hindu female has been enabled and
empowered to adopt not only to herself but also to her husband, and also in
tune with the changed and modern concept of equality of women and their
capabilities to decide independently statutorily recognised, and the very
reason for insisting upon such an authority or consent from the Husband or the sapindas
under the old Hindu Law having lost its basis and thereby ceased to be of any
relevance or valid purpose whatsoever. In such circumstances, acceding to the
submission to read into Section 8 the stipulation in the proviso to Section 7
with the Explanation thereto would amount to legislation by Courts on the lines
as to what in its view the law should be, which is wholly impermissible for
Courts, dehors any justification or necessity for such a provision. In our
view, there is no necessity even for such a provision in the context of the
changed circumstances brought about by the various alterations and amendments
to the Hindu Code regulating hitherto the personal law of the Hindus. We are
also of the view that either having regard to state of law prevailing on the
eve of coming into force of the Act or the nature and extent of the changes and
alterations effected in the then existing personal law envisaged by the
Parliament could there be any justification whatsoever for Courts to re-write
Section 8 of the Act by doing violence to the language by adding something
which has been consciously and deliberately omitted by the Parliament itself.
To subject the exercise of power by the senior widow to adopt, conditioned upon
the consent of the junior widow where a Hindu male died leaving behind two
widows with no progeny of his own, would render the exercise of power more
cumbersome and paradoxical, leaving at times, such exercise of power to adopt
only next to impossibility.
Having
regard to the provisions contained in proviso (c) to Section 12 of the Act
which ensures that the adopted child shall not divest any person of any estate
which vested in him or her before the adoption and consequent protection of the
rights vested with the junior widow in the property left behind by the deceased
husband and the real and ultimate object of adoption by the widow, no injustice
could be said to be caused to the junior widow on account of the legislature
not making it obligatory for the senior widow to obtain the consent of the
junior widow to adopt a child which would be deemed to be not only for her but
also to the deceased husband as envisaged in Section 12 of the Act.
For
all the reasons stated above, we find no error of law or infirmity of any kind
in the ultimate decision of the High Court to call for any interference at our
hands. The appeal fails and is dismissed. No costs.
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