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PETITIONER: ABHIRAJ KUER

       Vs.

RESPONDENT: DEBENDRA SINGH

DATE OF JUDGMENT: 15/09/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS WANCHOO, K.N. SHAH, J.C.

CITATION:  1962 AIR  351            1962 SCR  (3) 627  CITATOR INFO :  R          1962 SC 356  (19)  R          1981 SC 178  (58)

ACT: Hindu  Law-Banaras  School of  Mitakshara  law--Adoption  of wife’s sister’s daughter’s son-Validity.

HEADNOTE: 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 go. 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

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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  be mandatory. Minakshi  v.  Ramanada, (1886) I.L.R. 11  Mad.  49,  distin- guished. 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. Case-law reviewed.

JUDGMENT: 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.

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             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 their order.               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

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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

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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 comment:               (Viruddha   Sambandha   is   that    Sambandha               (relation) which is viruddha (contrary or  im-               proper)  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

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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

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             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 not. We  are not aware of any decision in any of the High  Courts 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 Courts  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

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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 invalid. 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. 64).               "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  above): "’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.                                  Appeal dismissed. 641