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PETITIONER: DHANRAJ

       Vs.

RESPONDENT: SMT.  SURAJ BAI

DATE OF JUDGMENT03/04/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KRISHNAIYER, V.R.

CITATION:  1975 AIR 1103            1975 SCR   73  1975 SCC  (2) 251

ACT: Hindu  Adoptions and Maintenance Act, 1956-Ss. 6(ii), 9  and 11-If  step-mother could give step-von In  adoption  in  the absence  of  natural parents--If a major could be  given  in adoption.

HEADNOTE: Section  6(ii)  of the Hindu Adoption and  Maintenance  Act, 1956  states  that  no adoption shall be  valid  unless  the person  giving  in  adoption  had the  capacity  to  do  so. Section 9(1) says that no person except the father or mother or the guardian of a child shall have the capacity to give a child in adoption.  Section 11(vi) says that the child to be adopted must be actually given and taken in adoption by  the parents or guardian concerned. The  appellant,  who was 21 years old, was  adopted  by  the respondent and her husband.  His natural parents having been dead,   he  was  given  in  adoption  by  his   step-mother. Subsequently, however, the respondent and her husband  filed a  suit  questioning the validity of the  adoption  and  for declaration that the adoption was illegal and invalid.   The appellant  claimed  that  under  the  Hindu  Adoptions   and Maintenance Act, 1956 the step-mother was competent to give him in adoption. The  trial court held that the adoption was invalid  on  the grounds that the appellant had been given in adoption by his step-mother,  who  was not competent to do  so.   The  High Court upheld the view of the trial court. Dismissing the appeal to this Court. HELD  :  (1) The physical act of giving  and  receiving  was absolutely  necessary to the validity of adoption under  the Hindu Law as it existed before the coming into force of  the Act.   Identical is the position under the  Hindu  Adoptions and  Maintenance Act, 1956.  Nor is it different as  to  the incapacity  of  the  step-mother to  give  her  step-son  in adoption. [76 E]. Papamma  v.  V. Appa Rau and Ors., I.L.R. 16, Mad.  384  and Haribhau  and Anr. v. Ajabrao Ramji Ingale and Ors.,  A.I.R. 1947 Nagpur 143 referred to. (2)  Under  s. 9(1) of the Act even the guardian of a  child has  the capacity to give him or her in adoption.   But  the step-mother as such has not.  The father or mother mentioned

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in  sub S. (1) must necessarily mean the natural father  and the natural mother. [76 F]. (3)  It is clear from s. 9 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 different   from  mother;  while,  generally  speaking,   an adoptive mother takes the place of mother to all intents and purposes.   The  necessity of the explanation (i)  to  s.  9 arose  to  exclude the adoptive mother from  the  expression mother  so that an adoptive mother may not be  competent  to give the adopted son in adoption to somebody else. [76 H]. (4)  Under  the  law  as engrafted in s. 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 ss. 9 and 11.   The use  of the word "person" in s. 6(iii) and at the  commence- ment  of s. 10 is not for the purpose of bringing about  any difference in                              74 law  in  regard to the giving of the child.  If  the  custom permits a pet-son 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 the absence of the father or the mother a guardian appointed  by the  will  of  the child’s father a mother  and  a  guardian appointed or declared by a court, would be competent to give the  child  in  adoption.  But in case of  a  major  in  the absence  of  the  father  or the mother,  no  body  will  be competent to give him in adoption because no such  provision has  been made in the Act to meet such a  contingency.   The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption.  Exception was made in of a custom to the contrary. [77 C-F]

JUDGMENT: 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 appellant. L.M. Singhvi, Urmila Sarur, A. Gupta and J. K. fain for  the respondent. The Judgment of the Court was delivered by UNTWALIA,  J.-In  this appeal filed by  certificate  of  the Rajasthan  High Court we are concerned with the question  of the  legality and validity of the adoption of the  appellant by  the  husband of the respondent.   Amichand,  respondents husband,  adopted  the  appellant with the  consent  of  the respondent  on  the  18th  November,  1959  and  executed  a registered  deed 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  and 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 alia, pleaded  a custom applicable to the parties according to which a person being  of  the  age of 15 years or more could  be  taken  in

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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,   1956hereinafter referred  to as the Act.  The appellant also stated  in  his written  statement  that under the Act the  step-mother  was competent to give him in adoption. Several issues were framed including an issue regarding  the custom  as  pleaded.   Issue No. I-A  by  agreement  of  the parties without the adducing of any evidence was tried as  a preliminary  issue by the Trial Court.  The said issue  runs as follows               "Whether the adoption of Dhanraj is invalid on               the ground that he has been given in  adoption               by his stepmother Mst.  Bhuri Bai."                              75 The  Trial  Court  decided  the  issue  in  favour  of   the plaintiffs  and against the defendant.  The latter  filed  a first appeal in the High Court.  During the pendency of  the appeal, plaintiff no. 1 died.  The only respondent left  was his widow.  The High Court has held that the step-mother was not  competent  to  give  the  appellant  in  adoption   and maintained  the  dismissal of the suit on  that  preliminary issue.  Hence this appeal. The only point, therefore, which falls for determination  in this appeal is whether the step-mother was competent to give the appellant in adoption.  If not, whether the adoption  is void ? In Mayne on Hindu Law aid Usage, eleventh edition is found 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 stepson, a brother               cannot  give  away his brother.  Nor  can  the               paternal  grandfather,  or any  other  person.               Nor  is a woman competent 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 adoption, for the act when done               must 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(1) Muttusami Ayyar  ,and Best, JJ. have held that under the Hindu Law the step-mother could not give her step-son in adoption.  An identical  view has  been expressed in the case of Haribhau and  another  v. Ajabrao Ramji Ingale and others(2). The  question  for consideration is whether the law  that  a stepmother could not give a step-son in adoption is  changed after coming into force of the Act.               Section 4(1) of the Act provides               "Save as otherwise expressly 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  shall  be  made   after   the               commencement  of  this Act by or  to  a  Hindu

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             except in accordance with the provi-               (1)   I.L.R. 16, Mad. 384.               (2)   A.I.R 1947, Nagpur, 143.               76               sions  contained  in  this  Chapter,  and  any               adoption  made  in contravention of  the  said               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 ;"               Other  conditions for a valid  adoption  under               the  Act  are  stated  in  section  11   which               provides :               "In  every adoption, the following  conditions               must be complied 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               abandoned 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 tinder  the  Hindu Law as it existed before coming into force of the Act : vide para  489  at  page 554 of  Mulia’s  Hindu  Law,  Fourteenth Edition.   Identical is the position under the Act.  Nor  is it different as to the incapacity of the stepmother to  give her  step-son in adoption.  Section 9 of the Act  enumerates the persons capable of giving in adoption.  Sub-section  (1) 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 law 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 has not.  The  father or mother mentioned in sub-section (1) must necessarily mean the natural father and the natural mother.  Explanation  (i) appended  to section 9 was pressed into service to say  that the step-mother is included in the term "mothers because the said  explanation  says  "the  expressions  "father"  and  " mother"  do not include an adoptive father and  an  adoptive mother."  Learned counsel for the appellant  submitted  that step-mother  has  not  been  excluded  from  the  expression "mother"  and only an adoptive mother has been so  excluded. By necessary implications, therefore, 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  and 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 different 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 77 mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption  to somebody else.  Learned  counsel for the appellant then submitted  that  in

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case of an adult orphan, as the appellant was at the time of adoption, no consent was necessary of any person except  the adopter himself.  No body could be available to give him  in adoption.   The  use of the word "child" in clause  (vi)  of section 11 and in section 9(1) read 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. Under  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 regard 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 and a guardian appointed or declared 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 provision has been made in the Act to  meet such a contingency.  The scheme of the Act was not to make a child  of  15  years  of 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 attempted to argue on the  basis of the decisions of the Bombay High Court in  the cases  of  Motilal  Mansukhram v.  Maneklal  Dayabha(1)  and Prahlad  Sheonarayan Chokhani v. Damodhar Rankaran  Vaishnao and  others,(2)  that  even  under the  old  Hindu  Law  the adoption of an orphan was not valid except by custom; but if the custom permitted it, and in 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 consent of and  the giving  by  anybody  else.   We think that  it  would  be  a ticklish and debatable question to decide whether the second part  of  clause (a) of section 4 would have such  a  custom from the overriding effects of sections 6, 9, and 11. But it will be a futile exercise her-, 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 could be taken in adoption.  Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person  above  the  age of 15 years  could  go  in  adoption without  the physical act of ’giving by anybody, on his  own and  with his consent only.  On the other hand the  pleading in sub-paras (1) and (1)  A.I.R. 1921, Bombay, 147 (2)  A.T.R. 1958.’Bombay, 79. 78 (3)  of paragraph 4 of the written statement was that  under the Act the step-mother was competent to give the defendant in  adoption and that she did give him in adoption.  It  was not open to the appellant, therefore, to take this new 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.

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P.B.R                        Appeal dismissed. 79