Dhanraj v. Smt. Suraj Bai

UNTWALIA, J.-In this appeal filed by certificate of the Rajasthan High Court we arc concerned with the question of the legality and validity of the adoption of the appellant by the husbane of the res-pondent. Amichand, respondent's husband, adopted the appellant with the consent of the respondent on the 18th November, 1959 and executed a registered c!eed evidencing the fact of adoption. The ap-pellant at that time was 21 years of age. Both his natural father and mother were dead. He had a step.mother Bhuri Bai with whom the appellant was residing at the time of the impugned adoption. The appellant was given in adoption by his step-mother. Subsequently the respondent's husband ane the respondent filed a suit in the year 1963 against the appellant impeaching his adoption on various grounds and for a declaration that the adoption was illegal and invalid. The appellant contested the suit and. inter a/ia, pleaded a custom appli-cable to the parties according to which a person being of the age of 15 years or more could be taken in adoption. The custom was pleaded in view of the provision of the law contained in clause (iv) of section 10 of the Hindu Adoptions and Maintenance Act, 1~56--;­ hereinafter referree to as the Act. The appellant also stated m his written statement that under the Act the step.mother was competent to give him in adoption.

Several issues were framed inchrding an issue regarding the cus· tom as pleaded. Issue No. 1 ·A by. agreement of t~e pa~ties without the adducing of any evidence was tned as a prehmmary ISsue by the Trial Court. The said issue runs as follows :

"Whether the ac!option of Dhanraj is invalid on the ground that he has been .given in adoption by his step-mother Mst. Bhuri Bai."

The Trial Court decided the issue in favour of the plaintiffs and A against the defendant. The latter filed a first appeal in the High Court. D11ring the pendency of the appeal, plaintiff no. 1 died. The -0nly respondent left was his wic!ow. The High Court •has held that the step-mother was not competent to give the appellant in adoption and maintained the dismissal of the. snit on that preliminary issue. Hence this appeal. B

The only point, therefore, which falls for determination in this appeal is whether the step-mother was competent to give the appel- !Jant in adoption. If not, whether the adoption is void 'I

In Mayne on Hindu Law and Usage, eleventh edition is founcl a passage at page 226 to say-

"No other relation but the father or mother can give away a boy. For instance, a step-mother cannot give away her step-son, a brother cannot give away his brother. Nor can the paternal grandfather, or any other person. Nor is a woman com-petent to give in adoption her illegitimate son born of adulterous intercourse. It is well settled that the parents cannot delegate their_ authority to another person, for instance, a son, so as to enable him, after their death, to give away his brother in adop-tion, for the act when done m11St have parental sanction. And, therefore, even an adult orphan cannot be adopted, because he can neither give himself away, nor be given by anyone with authority to do so."

In Papamma v. V Appa Rau and others(') Muttusami Ayyar and Best, JJ. have held that under the Hindu Law the step-mother could not give her step-son in ac!option. An identical view has been expressed in the case of Haribhau and another v. Ajabrao Ramji lngale and others(').

The question for consideration is whether the law that a step-mother could not give a step-son in adoption is changed after com-ing into force of the Act.

Section 4(1) of the Act provides :

"Save as otherwise exprei;sly provided in this Act,- ( a) any text, rule or interpretation of Hindu law or any custom

or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act".

Section 5 ( 1) says :

. "No adoption sh~ll be made after the commencement of this Act by or to a Hindu except in accordance with the provi- (J) I.L.R. 16, Mad. 384.

(2) A.I.R 1947, Nagpur, 143.

A sions contained in this Chapter, and any adoption made in con-

travention of the saio provisions shall be void."

No adoption shall be valid as mentioned in section 6 unless-

"(ii) the person giving in adoption has the capacity to do so ;"

B

Other conditions for a valid adoption under the Act are stated in section 11 which provides :

"In every adoption, the following conoitions must be com-plied with : -

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoneo child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption : "

The physical act of giving and receiving was absolutely necessary to the validity of an adoption under the Hindu Law as it existed before coming into force of the Act : vide para 489 at page 554 of Mulla's Hindu Law, Fourteenth Edition. Identical is the position unoer the Act. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. Section 9 of the Act enu-merates the persons capable of giving in adoption. Sub-section ( l) says :

"No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption." The departure in the Jaw is that under the Act even the guardian of a child has the capacity to give him or her in adoption. But the step-mother as such bas not. The father or mother mentioned in sub-section ( 1) must necessarily mean the natural father ano the natural mother. Explanation (i) appended to section 9 was pressed into service to say that the step-mother is included in the term "mother" because the said explanation says "the expressions "father" and "mother" do not include an adoptive father and an adoptive mother." Learneo counsel for the appellant submitted that step-mother has not been excluded from the expression "mother" and only an adop-tive mother bas been so excluded. By necessary implications, there-fore, it was submitted that it ought to be held that the word "mother" in sub-section (i) includes a step-mother. We have no difficulty in rejecting this argument. Reading section 9 as a whole ano specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother" means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is. distinct and differen1 from mother; while, generally speaking, an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may A not be competent to give the adoptecl son in adoption to somebody else.

Learned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption, no consent was necessary of any person except the adoptee himself. No body could be available to give him in adoption. The use of the word "child" in claU'Sc (vi) of section 11 and in section 9(1) reacl in contra-distinction of the use of word "person" in clause (iii) of section 6' would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult. We see no substance in this argument. Unc!er the law as engrafted in section 10 of the Act, a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in sections 9 and 11. The use of the word "person" in section 6 (iii) and at the commencement of section 10 is not for the purpose of bringing about any difference in law in regarcl to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. 'Child' would not necessarily mean in that context a minor child. If the child is a minor, in absence of the father or. the mother, a guardian appointed by the will of the child's father or mother ancl a guardian appointed or dec-lared by a court, would be competent to give the child in adoption. But in case of a major in absence of the father or the mother, no body will be competent to give him in adoption because no such pro-vision has been made in the Act to meet such a contingency. of The scheme of the Act was not to make a child of 15 years age or above fit to. be taken in adoption. Exception was made in favour of a custom to the contrary.

Learned counsel for the appellant then attemptec! to argue on the basis of the decisions of the Bombay High Court in the cases of Motilal Mansukhram v. Maneklal Dayabha(') and Prahlad Sheo-narayan Chokhani v. Damodhar Rankaran Vaishnao and others,(') that even under the old Hindu Law the adoption of an orphan was not valid except by custom; but if the custom permitted it, anc! iri the case of Porwal Jains it did permit, then an orphan who was not minor could go in adoption by his own consent without the con-sent of and the giving by anybody else. We think that it would be a ticklish and debatable question to decic!e whether the second part of clause (a) of section 4 would have such a custom from the over-r~ding effects of sections 6, 9, and 11. But it will be a futile exer-cise here to embark upon the decision of this point as in our judgment it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old coulc! be taken in adop!i~n. Nothing was pleaded to say that there was a cnstom of givmg an orphan in adoption or that a p~rson above ~h~ age of 15 years could go in adoption without the physical act of g1vmg by anybody, on his own and with his con-sent anly: On the other hand the pleading in sub-paras (1) and (1) A.LR. 1921, Bombay, 147.

(2) A.l.R. 1958, Bombay, 79.

78 SUPltBMB COURT REPORTS [1975] SUPP. s.c.R.

(3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in ac!option and that she did give him in adoption. It was not open to the appel-lant, therefore, to take this n"-.W point of law for the first time in this Court without the foundation of facts to found it upon.

'

For the reasons stated above, we dismiss this appeal No costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 476(N) of 1973.

From the Judgment and decree dated the 23rd August. 1973 of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 70 of 1966. -

S. M. Jain for the appdlant.

L. M. Singhvi, Urmila Sarur, A. Gupta and .T. K. Jain for the respondent.