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CASE NO.: Appeal (civil)  7764 of 2001

PETITIONER: Brijendra Singh

RESPONDENT: State of M.P. & Anr.

DATE OF JUDGMENT: 11/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

       The present appeal involves a very simple issue but when  the background facts are considered it projects some highly  emotional and sensitive aspects of human life.

    Challenge in this appeal is to the judgment of the  Madhya Pradesh High Court at Jabalpur in a Second Appeal  under Section 100 of the Code of Civil Procedure, 1908 (in  short the \021C.P.C.\022).              Background facts sans unnecessary details are as  follows:      Sometime in 1948, one Mishri Bai, a crippled lady having  practically no legs was given in marriage to one Padam Singh.   The aforesaid marriage appears to have been solemnized  because under the village custom, it was imperative for a  virgin girl to get married.  Evidence on record shows that  Padam Singh had left Mishri Bai soon after the marriage and  since then she was living with her parents at Village Kolinja.   Seeing her plight, her parents had given her a piece of land  measuring 32 acres out of their agricultural holdings for her  maintenance.  In 1970, Mishri Bai claims to have adopted  appellant Brajendra Singh.  Padam Singh died in the year  1974.  The Sub-Divisional Officer, Vidisha served a notice on  Mishri Bai under Section 10 of the M.P. Ceiling on Agricultural  Holdings Act, 1960 (in short the \021Ceiling Act\022) indicating that  her holding of agricultural land was more than the prescribed  limit.  Mishri Bai filed a reply contended that Brajendra Singh  is her adopted son and both of them constituted a Joint family  and therefore are entitled to retain 54 acres of land.  On  28.12.1981, the Sub Divisional officer by order dated  27.12.1981 disbelieved the claim of adoption on the ground  inter alia that in the entries in educational institutions  adoptive father\022s name was not recorded.   On 10.1.1982,  Mishri Bai filed Civil Suit No. SA/82 seeking a declaration that  Brajendra Singh is her adopted son.  On 19.7.1989, she  executed a registered will bequeathing all her properties in  favour of Brajendra Singh.  Shortly thereafter, she breathed  her last on 8.11.1989.  The trial court by judgment and order  dated 3.9.1993 decreed the suit of Mishri Bai. The same was  challenged by the State. The first appellate court dismissed the  appeal and affirmed the judgment and decree of the trial  court.  It was held concurring with the view of the trial court

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that Mishri Bai had taken Brajendra Singh in adoption and in  the will executed by Mishri Bai the factum of adoption has  been mentioned.  Respondents filed Second Appeal No. 482 of  1996 before the High Court.  A point was raised that the  adoption was not valid in the absence of the consent of Mishri  Bai\022s husband.  The High Court allowed the appeal holding  that in view of Section 8(c) of Hindu Adoption and  Maintenance Act, 1956 (in short the \021Act\022) stipulated that so  far as a female Hindu is concerned, only those falling within  the enumerated categories can adopt a son.            The High Court noted that there was a great deal of  difference between a female Hindu who is divorced and who is  leading life like a divorced woman.  Accordingly the High Court  held that the claimed adoption is not an adoption and had no  sanctity in law.  The suit filed by Mishri Bai was to be  dismissed.            In support of the appeal learned counsel for the appellant  submitted that as the factual position which is almost  undisputed goes to show, there was in fact no consummation  of marriage as the parties were living separately for a very long  period practically from the date of marriage.  That being so, an  inference that Mishri Bai ceased to be a married woman, has  been rightly recorded by the trial court and the first appellate  court.  It was also pointed out that the question of law framed  proceeded on a wrong footing as if the consent of husband was  necessary.  There was no such stipulation in law.  It is  contented that the question as was considered by the High  Court was not specifically dealt with by the trial court or the  first appellate court. Strong reliance has been placed on a  decision of this Court in Jolly Das (Smt.) Alias Moulick v.  Tapan Ranjan Das [1994(4) SCC 363] to highlight the concept  of \023Sham Marriage\024.            It was also submitted that the case of invalid adoption  was specifically urged and taken note of by the trial court.   Nevertheless the trial court analysed the material and evidence  on record and came to the conclusion that Mishri Bai was  living like a divorced woman.            Learned counsel for the respondents on the other hand  submitted that admittedly Mishri Bai did not fall into any of  the enumerated categories contained in Section 8 of the Act  and therefore, she could not have validly taken Brajendra  Singh in adoption.             It is to be noted that in the suit there was no declaration  sought for by Mishri Bai either to the effect that she was not  married or that the marriage was sham or that there was any  divorce.   The stand was that Mishri Bai and her husband  were living separately for very long period.              Section 8 of the Act reads as follows:      \0238. Capacity of a female Hindu to take in  adoption \026 Any female Hindu \026      (a)        who is of sound mind,      (b)        who is not 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 capacity to take a son or daughter in

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adoption.\024            We are concerned in the present case with clause (c) of  Section 8.  The Section brings about a very important and far  reaching change in the law of adoption as used to apply earlier  in case of Hindus.  It is now permissible for a female Hindu  who is of sound mind and has completed the age of 18 years  to take a son or daughter in adoption to herself in her own  right provided that (a) she is not married; (b) or is a widow; (c)  or  is a divorcee  or after marriage her husband has finally  renounced the world or is ceased to be a Hindu or has been  declared to be of unsound mind by a court having jurisdiction  to pass a declaratory decree to that effect.  It follows from  Clause (c) of Section 8 that Hindu wife cannot adopt a son or  daughter to herself even with the consent of her husband  because the Section expressly provides for cases in which she  can adopt a son or daughter to herself  during the life time of  the husband.  She can only make an adoption in the cases  indicated in clause (c). It is important to note that Section 6(1)  of the Act requires that the person who wants to adopt a son  or a daughter must have the capacity and also the right to  take in adoption.  Section 8 speaks of what is described as  \021capacity\022.  Section 11 which lays down the condition for a  valid adoption requires that in case of adoption of a son, the  mother by whom the adoption is made must not have a Hindu  son or son\022s son or grand son by legitimate blood relationship  or by adoption living at the time of adoption.  It follows from  the language of Section 8 read with Clauses (i)& (ii) of Section  11 that the female Hindu has the capacity and right to have  both adopted son and adopted daughter provided there is  compliance of the requirements and conditions of such  adoption laid down in the Act.  Any adoption made by a female  Hindu who does not have requisite capacity to take in  adoption or the right to take in adoption is null and void.  It is  clear that only a female Hindu who is married and whose  marriage has been dissolved i.e. who is a divorcee has the  capacity to adopt.  Admittedly in the instant case there is no  dissolution of the marriage.  All that the evidence led points  out is that the husband and wife were staying separately for a  very long period and Mishri Bai was living a life like a divorced  woman.  There is conceptual and contextual difference  between a divorced woman and one who is leading life like a  divorced woman.  Both cannot be equated.  Therefore in law  Mishri Bai was not entitled to the declaration sought for.  Here  comes the social issue.  A lady because of her physical  deformity lived separately from her husband and that too for a  very long period right from the date of marriage. But in the eye  of law they continued to be husband and wife because there  was no dissolution of marriage or a divorce in the eye of law.    Brajendra Singh was adopted by Mishri Bai so that he can  look after her.  There is no dispute that Brajendra Singh was  in fact doing so.  There is no dispute that the property given to  him by the will executed by Mishri Bai is to be retained by  him.  It is only the other portion of the land originally held by  Mishri Bai which is the bone of contention.              Section 5 provides that adoptions are to be regulated in  terms of the provisions contained in Chapter II. Section 6  deals with the requisites of a valid adoption. Section 11  prohibits adoption; in case it is of a son, where the adoptive  father or mother by whom the adoption is made has a Hindu  son, son\022s son, or son\022s son\022s son, whether by legitimate blood  relationship or by adoption, living at the time of adoption.  Prior to the Act under the old Hindu law, Article 3 provided as  follows:  

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\0233. (1) A male Hindu, who has attained the age  of discretion and is of sound mind, may adopt  a son to himself provided he has no male issue  in existence at the date of the adoption.   (2) A Hindu who is competent to adopt may  authorize either his ( i ) wife, or ( ii ) widow  (except in Mithila) to adopt a son to himself.\024

    Therefore, prior to the enactment of the Act also adoption  of a son during the lifetime of a male issue was prohibited and  the position continues to be so after the enactment of the Act.  Where a son became an outcast or renounced the Hindu  religion, his father became entitled to adopt another. The  position has not changed after the enactment of the Caste  Disabilities Removal Act (21 of 1850), as the outcast son does  not retain the religious capacity to perform the obsequial rites.  In case parties are governed by Mitakshara law, additionally  adoption can be made if the natural son is a congenital lunatic  or an idiot.                   The origin of custom of adoption is lost in antiquity. The  ancient Hindu law recognized twelve kinds of sons of whom  five were adopted. The five kinds of adopted sons in early  times must have been of very secondary importance, for, on  the whole, they were relegated to an inferior rank in the order  of sons. Out of the five kinds of adopted sons, only two survive  today, namely, the dattaka form prevalent throughout India  and the kritrima form confined to Mithila and the adjoining  districts. The primary object of adoption was to gratify the  means of the ancestors by annual offerings and, therefore, it  was considered necessary that the offerer should be as much  as possible a reflection of a real descendant and had to look as  much like a real son as possible and certainly not be one who  would never have been a son. Therefore, the body of rules was  evolved out of a phrase of Saunaka that he must be \023the  reflection of a son\024. The restrictions flowing from this maxim  had the effect of eliminating most of the forms of adoption.  (See Hindu Law by S.V. Gupte, 3rd Edn., at pp. 899-900.) The  whole law of dattaka adoption is evolved from two important  texts and a metaphor. The texts are of Manu and Vasistha,  and the metaphor that of Saunaka. Manu provided for the  identity of an adopted son with the family into which he was  adopted. (See Manu, Chapter IX, pp.   141-42, as translated by  Sir W. Jones.) The object of an adoption is mixed, being  religious and secular. According to Mayne, the recognition of  the institution of adoption in the early times had been more  due to secular reasons than to any religious necessity, and the  religious motive was only secondary; but although the secular  motive was dominant, the religious motive was undeniable.  The religious motive for adoption never altogether excluded the  secular motive. (See Mayne\022s Hindu Law and Usage, 12th  Edn., p.   329.)       As held by this Court in V.T.S. Chandrasekhara Mudaliar  v. Kulandaivelu Mudaliar (AIR 1963 SC 185) substitution of a  son for spiritual reasons is the essence of adoption, and  consequent devolution of property is mere accessory to it; the  validity of an adoption has to be judged by spiritual rather  than temporal considerations and devolution of property is  only of secondary importance.        In Hem Singh v. Harnam Singh (AIR 1954 SC 581) it was  observed by this Court that under the Hindu law adoption is  primarily a religious act intended to confer spiritual benefit on  the adopter and some of the rituals have, therefore, been held  to be mandatory, and compliance with them regarded as a

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condition of the validity of the adoption. The first important  case on the question of adoption was decided by the Privy  Council in the case of Amarendra Man Singh Bhramarbar v.  Sanatan Singh (AIR 1933 PC 155). The Privy Council said:  Among the Hindus, a peculiar religious  significance has attached to the son, through  Brahminical influence, although in its origin  the custom of adoption was perhaps purely  secular. The texts of the Hindus are  themselves instinct with this doctrine of  religious significance. The foundation of the  Brahminical doctrine of adoption is the duty  which every Hindu owes to his ancestors to  provide for the continuance of the line and the  solemnization of the necessary rites.        With these observations it decided the question before it  viz. that of setting the limits to the exercise of the power of a  widow to adopt, having regard to the well-established doctrine  as to the religious efficacy of sonship.   In fact, the Privy  Council in that case regarded the religious motive as dominant  and the secular motive as only secondary.   

     The object is further amplified by certain observations of  this Court. It has been held that an adoption results in  changing the course of succession, depriving wife and  daughters of their rights, and transferring the properties to  comparative strangers or more remote relations. [See: Kishori  Lal v. Chaltibai (AIR 1959 SC 504)].  Though undeniably in  most of the cases, motive is religious, the secular motive is  also dominantly present. We are not concerned much with this  controversy, and as observed by Mayne, it is unsafe to embark  upon an enquiry in each case as to whether the motives for a  particular adoption were religious or secular and an  intermediate view is possible that while an adoption may be a  proper act, inspired in many cases by religious motives, courts  are concerned with an adoption, only as the exercise of a legal  right by certain persons. The Privy Council\022s decision in  Amarendra Man Singh\022s case (supra) has reiterated the well- established doctrine as to the religious efficacy of sonship as  the foundation of adoption. The emphasis has been on the  absence of a male issue. An adoption may either be made by a  man himself or by his widow on his behalf with his authority  conveyed therefor. The adoption is to the male and it is  obvious that an unmarried woman cannot adopt, for the  purpose of adoption is to ensure spiritual benefit for a man  after his death and to his ancestors by offering of oblations of  rice and libations of water to them periodically. A woman  having no spiritual needs to be satisfied, was not allowed to  adopt for herself. But in either case it is a condition precedent  for a valid adoption that he should be without any male issue  living at the time of adoption.       A married woman cannot adopt at all during the  subsistence of the marriage except when the husband 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.  If the husband is not  under such disqualification, the wife cannot adopt even with  the consent of the husband whereas the husband can adopt  with the consent of the wife.  This is clear from Section 7 of the  Act.  Proviso thereof makes it clear that a male Hindu cannot  adopt except with the consent of the 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.  It is relevant to note that  in the case of a male Hindu the consent of the wife is

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necessary unless the other contingency exists.  Though  Section 8 is almost identical, the consent of the husband is  not provided for.  The proviso to Section 7 imposes a  restriction in the right of male Hindu to take in adoption.  In  this respect the Act radically depicts from the old law where no  such bar was laid down to the exercise of the right of a male  Hindu to adopt oneself, unless he dispossess the requisite  capacity.  As per the proviso to Section 7 the wife\022s consent  must be obtained prior to adoption and cannot be subsequent  to the act of adoption.  The proviso lays down consent as a  condition precedent to an adoption which is mandatory and  adoption without wife\022s consent would be void.  Both proviso  to Sections 7 and 8(c) refer to certain circumstances which  have effect on the capacity to make an adoption.      At this juncture it would be relevant to take note of Jolly  Das\022s case (supra).  The decision in that case related to an  entirely different factual scenario.  There was no principle of  law enunciated.  That decision was rendered on the peculiar  factual background.  That decision has therefore no relevance  to the present case.      Learned counsel for the appellant submitted that in any  event, the land which is declared to be in excess of the  prescribed limit vests in the Government to be allotted to  persons selected by the Government.  It was submitted that in  view of the peculiar background, the Government may be  directed to consider the appellant\022s case for allotment of the  land from the surplus land so that the purpose for which  adoption was made and the fact that the appellant nourished  a crippled lady treating her to be his own mother would set a  healthy tradition and example.  We express no opinion in that  regard.  It is for the State Government to take a decision in the  matter in accordance with law. But while dismissing the  appeal, we permit the appellant to be in possession of land for  a period of six months by which time the Government may be  moved for an appropriate decision in the matter.  We make it  clear that by giving this protection we have not expressed any  opinion on the acceptability or otherwise of the appellant\022s  request to the State Government to allot the land to him.      The appeal is dismissed subject to the aforesaid  observations.