CHAPTER-V

: 201 i

The Hindu Adoptions and Maintenance Act, 1956 received the assent of the

President on December 21,1956 and was published in the Gazette of India on December

22, 1956. The adoptions made prior to the commencement of this Act were governed

by the pre-existing law, i.e the Hindu Law as it was applicable before the commencement

of this Act.

In order to have one uniform law all over India, so far as Hindus and others to

whom this Act (HAMA, 1956) is made applicable, the said Act was enacted. The various

forms of adoptions and various customs regarding adoption has been sought to be

abolished and to have one common law for all the Hindus. The Hindu Law as it was

before its codification, was (most part of it) to be found in the various smrities, sruties,

Nibandhas and judicial decisions. They varied from State to State and among different

castes and families. In order to simplify the Hindu Law, and to bring it in tune with the

demand of time it was thought necessary to amend it and to enact the entire law as far

as possible so that one may not be required to travel over a very large number of judicial

precedents and in the absence of precedent to find out the law in the ancient texts.

Commenting on HAMA, 1956,1.D. Dua, J. in para 14 of its judgement1 said,

“All these recent enactments, which have, as their fundamental purpose, the removal of

Hindu Women’s disabilities and conferment on them of better rights for maintenance

and property, may in my opinion, be legitimately and with advantage referred to and

harmoniously construed for the purpose of ascertaing the real manifest intention and

the underlying cardinal purpose of the Parliament in enacting the Hindu Adoptions and

Maintenance Act, 1956 in response to the needs and demands of a progressive society.

Further, in para 15 of its judgement the Judge observed that these legislative measures

1. Jal KaurV. Pala Singh, A.I.R 1961 Punjab 391.

 : 202 :

appear to me clearly to reflect the modern liberal tendency of the Hindu society to

confer on Hindu women much larger rights than they had heretofore been enjoying. The

medieval conservative theory of treating women as inferior beings has, in my opinion,

has finally discarded by the Parliament in the clearest possible terms”.

From the survey of the case law from 1956 to 2002 under HAMA, the following

important propositions were evolved, which are as under;-

(i) OBJECTIVES OF ADOPTION

The adoption is no longer to be understood in the old sense or for the old

purpose. The Act (HAMA, 1956) is said to be containing a purely secular law of adoption.

On the contrary, some of the old notions of Hindu law are still retained. The Act contains

very little safeguards for securing the secular interest of the child after adoption 2. The

Courts have reiterated the ‘religious motive’ of adoptions in a number of cases. The

Supreme Court in its landmark judgement3 having a consensus view with the earlier

decisions of Privy Council has stated that the validity of an adoption has to be judged by

spiritual rather than temporal considerations and that devolution of property is only of

secondary importance. In another case4, it was held 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 adopter’s name. Therefore, the existence of a son in embryo of a

co-widow does not invalidate the adoption made by a window. Some of the judges still

insist that the object of adoption is two fold: (a) to secure performance of ones funeral
2. An adoption is said to place a child in the same position as a natural born child, in the adoptive family.
However, a child has a definite place in the family in which it is born. It has its father, its mother, its paternal
and maternal relations. If the adoption is made by a spinster, or a woman who has lost her husband, and
when such an adoption under the Act is to the woman herself, the question arises, What is the family in
which the adopted child can secure a place? The position of many a child is bound to be anomalous as a
result of sec. 12 of the Act. The Act does not provide for a complete assimilation of the boy in the adoptive
family.
3. Chandra Sekhar Mudaliar V. Kulandaivelu Mudaliar, A.I.R 1963 SC 185.
4. Guramma V. Mallapa, A.I.R 1964 SC 510
 : 203 :

rites and (b) to preserve the continuance of one’s lineage5.

The Court has put the secular objectives in second position in some of the

decisions. In a case6, 7it 8was held that, “Adoption under the Hindu law was recognized

by the ancient Hindu philosophers as the presence of a son was considered essential

to achieve religious salvation. The object of adoption has been considered to be two

fold : The first is religious intended to secure spiritual benefit to the adopter and his

ancestors by having a son for the purpose of offering funeral cakes and libation of. water

to the manes of the adopter and his ancestors. The second is secular, intended to

secure an heir to perpetuate the adopters name and his family. However, Mayne is of

opinion that spiritual motive was not so largely responsible for the increasing vogue of

the dattak as generally imagined. He is of opinion that the institution of adoption has

been more due to secular reasons than to any religious necessity. Mr.Sarkar is also of

opinion that the spiritual benefit is secondary motive for adoption and in support of this

he cites the example of the practice of adoption amongst the Jainas and other Hindu

dissenters who have not adopted the Brahminical view of the importance of sons for

spiritual purposes, and do not perform ‘Sradh’ ceremonies that form the foundation of

the spiritual benefit conferred by sons and concludes that it proves beyond all.doubt

that the usage of adoption did not owe its origin to the religious belief that a son is
7 8
necessary for the salvation of a son . In a judgement pertaining to adoption ,

Gajendragadkar, C.J. of the Supreme Court said that Hindu Law is to be applied to

Jainas in absence of proof of special customs and usages varying that law. Jains do not

subscribe to the theory that a son confers spiritual benefit upon his father and therefore,

5. Inder Singh Vrs. Kartar Singh, A.I.R 1966 Punjab. 258

6. Vijay Vrs. State of Jammu, A.I.R. 1989 Jammu and Kashmir P-10
7. R.N.Tewary, commentary on HAMA, 1956, 1957 Edi. At PP. 18-19
8. Shuganchand V. Prakash Chand, A.I.R 1967 SC 506
 : 204 :

jains regard it as a wholly secular affair. In Suraj Mai V. Babu lal9, it was held that the

object of adoption amongst jains is purely secular, i.e to secure a heir and perpetuate

the adopter’s name. It has no religious significance whatsoever.

(ii) CAPACITY TO GIVE AND TAKE IN ADOPTION

Before the coming into force of the Hindu Adoptions and Maintenance Act,

1956 a view was expressed that in the presence of widowed daughter-in-law, a widow

could not make an adoption. And whether on the remarriage of the widowed daughter-

in-law, the power of the mother revived was answered negatively by the Supreme Court10.

The Hon’ble Supreme Court in this case held that on the remarriage of the son’s widow,

the power of the son’s mother to adopt did not revive. The Court observed, “that the

interposition of a grandson, or the son’s widow, competent to continue the line by adoption

brings the mother’s power of adoption to an end.”This rule was being followed for a very

long time and has become a part of Hindu law. The argument has been advanced by

taking it a step further. In Bhima Kotha V. Sarat Chandra*11, the argument was that not

merely the widow but the father of the deceased son could not make an adoption of a

son in the presence of the widowed daughter-in-law.

But the argument did not prevail and it was held that, a Hindu male otherwise

competent to make an adoption does not lose it because of the presence of a widowed

daughter-in-law. Under the modern Hindu Law, a sonless widowed mother has power

to adopt if the sonless widowed daugher-in-law has not made an adoption,

notwithstanding her remarriage or otherwise. If the sonless widowed daughter-in-law

makes an adoption, the widowed mother has no power to make an adoption and in

9. A.I.R, 1985 Delhi, 95

10. Asha Bai Kate V. Vittal Bhika Nade, A.I.R 1990 SC 670
11. A.I.R. 1988 Orissa 14.
 ; 205 :

such a situation she will be leaving a son’s son

R.N. Mishra, J. in K.Laxmi Narayan Subudhi V. K.Padmanav 12(a), held that

the widow was fully competent to adopt a son. This case shows how the concepts of

traditional Hindu law are sought to be revived with a view to abridging the rights conferred

by Hindu Adoption and Maintenance Act. The main question raised in this case was

whether the widow of a Hindu could adopt a son while her own son died leaving behind

his widow. As per traditional Hindu law, such a widow is disqualified from making an

adoption on the ground that no sooner the son left behind his own widow, the power of

the senior widow to take a son in adoption comes to an end, Mishra. J. rejected this view

and held that, there is no dispute that the widow has a statutory right to adopt. Even if

the contention that in law the capacity of the widow to adopt to her husband was

extinguished under the old law, by virtue of the right conferred under the Adoption Act,

she was entitled to make the adoption.

As to adoption by a bachelor, the Hindu sages felt that a secondary son is

needed only in case of failure of auras son (natural born son), and to seek a natural son

one has to get married and become a house holder, and even then if failed to get a son

he could take an adopted son. However, as the motive of adoption is secular, a man

capable of accepting property could also adopt even if he was a bachelor.

As regards adoption by an unmarried women it was held that women have

no spiritual needs to be satisfied and that was the reason why Hindu law did not recognize
13
a power by an unmarried woman to take a child in adoption .

12. Annual survey of Indian law, 1990, vol. Xxvi at P. 130

12(a). A.I.R 1973 Orissa 3
13. Arumugha Udayar V. Valliammal, A.I.R 1969 Madras 72
 : 206 :

14
But in Lalitha V. Union of India , the Court held that, Sec 8 of the HAMA,

1956 conferring the right to adopt covers women who are single in status. A married

woman stands outside that class. The right of woman in married status is covered by

Sec.7 of the Act. As a woman in married status falls into a different class she can not

complain of discrimination or violation of Art. 14 of the Constitution.

In Ram Sakhi Kuer V. Daroga Prasad Singh 15, the Court held that after

remarriage, the widow ceases to be the mother of the son and as such, she can not

give in adoption a child who was by her first husband. The Court further observed,

when a widow remarries, she looses her status as a mother, and dies a civil death (as

per Sec.2 of the Hindu Widow’s Remarriage Act, 1856) so far as the rights and interests

in the family of the previous husband are concerned. By giving in adoption, such a son

from her previous husband, she deprives her previous husband of the spiritual benefits

to which her previous husband was entitled from a son.

The Court reiterated the old principle of adoption being for spiritual purpose

not paying due importance to the secular character of the Act.

It is submitted that so long as she remains the guardian of her minor children

she should exercise her right of giving away her child from her former husband. Even if

someone else is appointed as a guardian, her right as mother still exists. She remains

their mother. It is one of those situations where the Court is to looked into whether the

adoption is for the welfare of the children or not.

Secondly, although, when married persons adopt consent of each other is

necessary, a married woman whose husband is alive has no right to make an adoption

14. A.I.R 1991 Karnataka 186

15. A.I.R 1981 Patna 204
 : 207 :

even with the consent of her husband. If an adoption is to be made, it must be made by

her husband with her consent. From the principles, the father seems to be more

priviledged than the mother, resulting a clear instance of gender bias.

In Dhanraj V. Smt. Suraj Bai16, the question for consideration was whether

the law that a step -mother could not give a step -son in adoption was changed after

coming into force of the Act. Under the old Hindu Law a step mother could not give her

step-son in adoption. It was held by the Supreme Court that the position in law is not

changed even after the coming into force of the Hindu Adoptions and Maintenance Act,

1956. In Smt. Prafulla Bala Mukherjee V. Satish Chandra Mukherjee and others16{a), it

was held that for a valid adoption not only the person adopting should be capable of

lawfully taking in adoption, but the person giving must be capable of lawfully giving in

adoption and the person adopted must be capable of being lawfully taken in adoption.

It is necessary that all these three conditions should be satisfied, and it is not sufficient

that only one of them be satisfied.

(iii) WHO CAN BE ADOPTED

In Priya Nath V. Indumati17, the Orissa High Court took the view that the

Karans in Orissa belong to the regenerate class. The effect of this position is that the

prohibition in Hindu law against adoption of a sister’s son is applicable to karans.

16. A.I.R 1975 SC 1103

16(a). A.I.R 1998 Cal. 86
17. A.I.R 1971 Orissa 211
 : 208 :

Referring to sec.11 of the HAMA, 1956, the Court in Dhanraj Jain V. Suraj
18
Bai , held that, on reading of Sections 12 and 14 of the Act, where the word ‘child’ has

been used, it appears that the term has been used to cover both minor as well as adult

persons. In our opinion the word ‘child’ has been used in sec. 11 (vi) with a wider

amplitude with flexibility to include major as well as minor so as to confim to both the

situations that is adoption by parents and guardians. In relation to parents we are

undoubtedly of opinion that the word ‘child’ will include major as well as minor persons

and when read in relation to the guardian, it will include minor persons only.”

It was held that, even in case of a major (if custom permits under the customary

law), the parents only can and should give that person in adoption. In case of a minor

orphan he can be given away in adoption by his guardian; a major orphan can under no
19
circumstances be adopted .

However, the Punjab and Haryana High Court expressed the view that where
20
an adult is adopted under custom, the consent of the adoptee is essential .

The Hindu Adoptions and Maintenance Act, 1956 under section 10 (iv) lays

down that a child to be adopted should be below the age of 15 years, and no child of 15

years or above can be adopted unless a custom to that effect permits it. If custom is not

pleaded, adoption of child above the age of 15 would be invalid 20(a)even if legality of

18. A.I.R 1973 Raj. 7: In this case the appellant, aged about twenty-one years, who had lost his parents, was
given away in adoption by his step-mother. After sometime the adoptive parents realizing it as a bad
bargain, instituted a suit against their adopted son questioning the validity of his adoption. The lower court
held that the step-mother was incompetent to give a person in adoption and hence the adoption was invalid
both under the traditional Hindu law and the HAMA, 1956. The adopted son, therefore, preferred an appeal
to the High Court. The Rajastan High Court upheld the finding of the lower court, when the appellant failed
on this point, he shifted his stand by stating that since he was a major at the time of adoption, the necessity
of giving and taking does not arise in his case.
19. It is submitted that, the orphans, even if majors, are needed to be adopted by some one, and it was they
who could not be adopted because the law did not permit their adoption.
20. I.L.R 1975. 1, Punj. 360.
20(a). A.I.R 2002 Karnataka 73.
 : 209:

21 22
such adoption is not challenged . The custom must be pleaded and proved . Therefore,
23
adoption of a man aged 28 years is impermissible . Under customary law, adoption of

a married person of any age is permitted among the jats in Punjab. In Maya Ram V.Jai
24
Narain , the Court held that if there is a custom permitting a person above the age of

15 years and a person who has been married being taken in adoption that shall continue

to be in force. Like wise in Bombay, adoption of a married person, or a married person

with children was valid. In Tarabai V. Bagonda25, a married person was adopted and the

married man’s wife was pregnant at the time of adoption, but the child was born only

after adoption. Held, that adoption of a married person is valid, and any child born to

him after adoption will be the child of the adoptive family.

The custom is judicially recognized in Bombay State as regards adoption of

a child at any age. Once the custom is recognized judicially, it is not required to be

independently proved in subsequent cases26. Thus, a child adopted at the age above

15 years, after the Act came into force was valid2?. So also, there is no restriction of age

or marriage and a married man could be adopted among Jains28.

Under the old Hindu law there was an established rule “Virudha Sambandh”,

among the first three classes that no one could be adopted whose mother in her maiden

state the adopter could not have legally married. Thus one could not adopt his own

daughter’s, sister’s, mother’s sister’s or father’s sister’s son. But, the Supreme Court in
29
Abhiraj Kuer V. Debendra Singh , held that such prohibition is only recommendatory
21. Bishan Maheswari V. Girish Chandra, A.I.R 1986 All 54.
22. Mahalingam V. Kannayyan, A.I.R 1990 Mad. 333
23. Km. Rakhi v. 1st A.D.J, A.I.R 2000 Allahabad 166.
24. A.I.R 1989 Punj. 202
25. A.I.R 1981 Bom. 13
26. Anirudh v. Babarao, A.I.R 1983 Bom. 391
27. Kondiba Rama Papal v. Narayan Kondiba Papal, A.I.R 1991 SC 1180
28. Suraj mal V. Babu Lai, A.I.R 1985 Delhi 95
29. A.I.R 1962 SC 351
 : 210 :

30
and not mandatory. Hence, in Damodarlal V. Lain Lai , it was held that adoption of the

brother’s daughter’s son could not be said to be invalid on the ground that the adoptive

father and the natural mother of the adoptee fell within the prohibited degrees of marriage.

In Raghunath Behera V. Balaram Behera31, the Court held that though there

is no legal bar that the only son can not be given in adoption, it being some-what

unusual, the Court has to assess with care and caution. However, in the instant case,

the Court has not discarded the plea of adoption on the ground of the only son being

given in adoption.

32
The Orissa High Court in Krushna Kahali V. Narana Kahali , viewed that

adoption during the life time of a male issue was specifically prohibited even under the

Hindu law prior to the enactment of HAMA, 1956 and even if there was such a custom,

the same was not considered to be valid, as custom can not override express law and

can not over come a prohibition. Such an adoption even if made under any custom prior

to enactment of HAMA, 1956 would be contrary to the concept of adoption and the

purpose thereof and hence would be unreasonable and invalid. The Court observed

that, where custom is set up to prove that it is at variance with the ordinary law, it has to

be proved that it is not opposed to public policy and that it is ancient, invariable,

continuous, notorious, not expressly forbidden by the legislature and not opposed to

morality.

33
In a case , the petitioners stated that, in view of section 11 (i) and (ii) of the

Hindu Adoptions and Maintenance Act 1956 34, they were prevented from taking in

30. A.I.R 1985 Rajastan 55.

31. A.i.R 1996 Orissa 38
32. A.I.R 1991 Orissa 134
33. Sandhya alias Supriya Kulkarni v. Union of India, A.I.R 1998 Bom. 228
34. Sec. 11 : other conditions for a valid adoption - In every adoption, the following conditions must be
complied with
 : 211 :

adoption second time a female child and therefore they had questioned the validity

thereof on the ground of violation of Art. 14 and 21 of the Constitution of India.

Their Lordship in Ahmedabad Women Action Group V Union of India, (A.I.R

1997 SC 3614) quoted Gajendragadkar J. for having observed:

• “Thus it is competent either to the State or the Union Legislature to legislate

on topics falling within the purview of the personal law and yet the expression ‘personal

law’is not used in Art. 13 because, in my opinion, the framers of the Constitution wanted

to leave the personal laws outside the ambit of part III of the Constitution.”

The Court said, even if the codified personal law is held to be within Art. 13 of

the Constitution, violation of part III needs to be tested on different pedestal than that of

secular right.

Ashok A.Desai, J. observed further that, even under ancient Hindu Law, the

parents had a right to adopt only one male child. The Amending Act (HAMA) extended

that right to adoption of a female child. As such, the privilege of adoption cannot logically
35
be further extended to more than one female child . The Act with its mythological and

secular mission has stood the test of time for around four decades and has conveniently

withstood the assaults as attempted from time to time. We therefore refrain from

examining validity of the impunged provisions on the touchstone of Art.14 and 21 of the

Constitution.”
F.N. 34 Contd...
i. If any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a
Hindu son, son’s son or son’s son’s son whether by legitimate blood relationship or by adoption, living at
the time of adoption;
ii. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have
a Hindu daughter or son’s daughter whether by legitimate blood relationship or by adoption, living at the
time of adoption ;
Thus the impunged provisions injunct a person from having second son or daughter by adoption.
35. However, The Juvenile Justice (care and protection of children) Act, 2000 u/s 41 ( 6)( b) allows parents
adopt a child of the same sex irrespective of the number of living biological sons or daughters, which
conflicts with the provisions sec. 11 (i). & (ii) of HAMA, 1956.
 : 212:

The Court, more importantly observed that, “The Parliament may, however,

re-examine the question of relaxing the ban under the impugned provisions, having

regard to the problem of adoption of children in destitute and other appertaining

circumstances, with a view to provide a solution.”

Although, after passing of Hindu Adoptions and Maintenance Act of 1956,

all adoptions after 1956 are said to be secular and must conform to the requirement of

the Act for its validity, some aspects of the old Hindu law, which should have been

rejected, are still found in the Act. For example, adoption is even now a private act

without any supervision of the State except when the guardian gives the child in adoption.

And more importantly, not more than one son or/and one daughter could be adopted,

under the Act.

(iv) CUSTOMS AND USAGES

Custom and Usage is one of the sources of Hindu Law. “Custom” and ‘Usage’

are not synonymous terms though they are often used interchangeably. Strictly speaking

there is a clear distinction between the two. Usage represents the twilight stage of

custom - Custom begins where usage ends.... A custom in the intendment of law is

such a usage as both obtained the force of law.36. “Custom” implies practice from time

immemorial while “usage” does not. Usage is a particular habit of comparatively recent

origin. Usage, when it has the force of law, ripens into custom.

Mayne’s view of Dharmashastras is that they are records of customs of varying

stages of Hindu society and Hindu Law is largely based on customs and usages.

To have a force of law, a custom, under the Hindu law must be ancient,

36. Mayne’s Hindu law and usage, 13th Edi. 1991, Bharat law house, New Delhi, at P.457.
 : 213:

certain, reasonable and not in derogation of any imperative rule of law or any express

statute. It must not be illegal, immoral or opposed to public policy.

The Hindu customs recognized by Courts are:

(a) local, (b) class, and (c) family customs.

In case of family custom i.e. a custom which is prevalent in a particular family

has the force of law if it has not been discontinued by the family. A family usage like local

usage must be certain, invariable and continuous.

When either party to a suit sets up a custom, it lies upon him to prove the

custom which he seeks to apply, if he fails to do so, the rule of decision must be the

personal law of the parties.

Custom and usage as defined in the Act (HAMA, 1956) accords with what

was understood before. Sec.3(a) of the Act defines both custom and usage to signify

any rule, which

(a) has been continuously and uniformly observed for a long time, and

(b) has obtained the force of law among Hindus in any local area, tribe,

community, group or family, provided :

(1) that the rule is certain and not unreasonable, or opposed to public policy,

and

(2) that, in the case of a rule applicable only to a family, it has not been

discontinued by the family.

 : 214:

It was however observed in A. Jagdeo Rao V, B. Irbaji37, that sec. 3 (a), of the

Act does not preserve any distinction between the ‘custom’ and ‘usage’ but places both

in the same footing by defining the expression in the same terms. A full Bench of the

Bombay High Court held that the words “custom’ or “usage” occurring in clauses (iii)

and (iv) of section 10 of the Act read along with section 3(a) of the Act included within its

sweep in rules of the Bombay School of Hindu Law or interpretation of the text thereof

by the Courts. The Court added that the intention of the Parliament was to preserve

custom and usage, where such express provision in that behalf was made in the Act.

38
In Krushan Kahali V. Narana Kahali , it was held that, though custom has

the effect of overriding law which is purely personal, it can not prevail against a statutory

law, unless it is thereby saved expressly or by necessary implication. Where custom is

set up to prove that it is at variance with the ordinary law, it has to be proved that it is not

opposed to public policy and that it is ancient, invariable, continuous, notorious, not

expressly forbidden by the legislature and not opposed to morality or public policy.

However, Sec.4 of the Hindu Adoptions and Maintenance Act, 1956, which

deals with the overriding effect of the Act, says that 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;

37. A.I.R 1983 Bom. 391 FB.

38. A.I.R 1991 Orissa 134.
 : 215 :

(b) any other law in force immediately before the commencement of this Act

shall cease to apply to Hindus in so far as it is inconsistent with any of the

provisions contained in this Act.

Thus under the Act custom is saved only on two matters38<a>; (a) age of the

39 40
adopted child , and (b) marital status of the child .

If any rule of Hindu law of adoption is not covered by any provision of the Act,

it will obviously, be still enforceable. Thus if a matter is not covered by the Act, it will not
41
cease to have effect .

Sub. Sec. (iii) of Sec. 10 of the Act categorically states that a married person

can not be adopted, subject to exception that where custom or usage permits, such

adoption may be made.

The custom of taking a married person in adoption prevails among Jats of

Punjab. The custom among Jats of Punjab and Haryana being one recognised judicially,
42
need not be proved . In Bombay also, even a married person can be adopted as it is
43
protected under local custom .

Sec. 10 (iv) of the HAMA, 1956 requires, inter alia, that the adoptee should

be under fifteen years of age, unless there is a custom or usage to the contrary (i.e one

which permits adoption of persons aged fifteen years or more) applicable to the parties.

38(a). However, J.D.M. Derret, is of view that, a closer examination of the wording of Sec.4 reveals that certain
institutions known as customary adoptions before 21 Dec. 1956 survive in full vigour. [Introduction to mod­
ern Hindu law, oxford University press, 1963 at P.131.]
39. Sec. 10 (iv). of Hindu Adoptions and Maintenance Act, 1956
40. Sec. 10 (iii). of Hindu Adoptions and Maintenance Act, 1956
41. Laxmi V. Krishna, A.I.R 1968 Mys. 288
42. Amar Singh V. Tej Ram, 1982 Punjab 282
43. Tarabai V. Bagonda, A.I.R 1981 Bom. 13.
 : 216:

44
It has been stated by the Supreme Court that the scheme of the Act is not to make a

child of 15 years of age or above fit to be taken in adoption. Exception however is made

in favour of custom or usage to the contrary.

Wherever a custom or usage permits adoption of a child more than 15 years

or of a married persons, such custom or usage must prevail not only in the family giving

the child but also in the family taking the child in adoption as the section says that the

custom must be applicable to the parties.

45
In Ramchandra Rao V. Bapurao , it was held that, in determining whether

the custom permitting adoption of persons aged above 15 years exist in a community

the Court must take into consideration the public opinion in the community. If such

public opinion shows that such an adoption is permissible in the community and uniformly

observed for a long time, the customary rule will get the force of law.

Custom of adopting boys over 15 years also prevails in the State of Andhra
46
Pradesh . A custom contrary to the Hindu law, in respect of age of adoption and
47
marital status of the adoptee (for which custom is preserved) has to be established .

When the custom is not established, Sec. 10 (iv) is not applicable even when there is a
48
registered deed of adoption . The claimant adoptee failed to show family custom

prevailing in family for adopting a female child (prior to HAMA, 1956) and thus held
... 48(a)
invalid.

44. Dhanraj V. Suraj Bai, 1975 SC 1103.

45. 1976 HLR 308
46. Puliam raju V. State, (1980)1, APLJ 356.
47. Maya Ram V. Jai Narayan, A.I.R 1989 P &H 202.
48. P. Peddiraju alias Venkata Subba Raju Vs. P. Viswananda Raju, The law Summary, 1989(2), vol. 17 at P. 56.
48(a). Lalitha V. Parameswari alias Ramabai, A.I.R 2001 Mad. 363.
 : 217 ;

49
It has been held in the case of Kochan Kani V. Mathevan Kani , that “in

order to prove a custom, the party has to plead in specific terms as to what is the

custom that he is relying on and he must prove the custom pleaded by him”.

The question whether a daughter’s son can be adopted came for consideration
50
in the case of Mariammal V. Gobindammal , wherein the Court held that, a daughter’s

son can not be adopted and it is invalid in law unless the custom of adopting a daughter’s

son is proved satisfactorily among the community to which the parties belong. .When

once the custom is pleaded, the said custom must be established by satisfactory

evidence. Even if a rule of ancient Hindu law is only recommendatory in nature, yet

once custom is pleaded against the said rule, it is but necessary in order to uphold the

said custom, the said custom should be established by satisfactory evidence as prevalent

in the community, for a long time without any interruption. It is of the essence of special

usages modifying the ordinary law of adoption that they should be ancient and invariable;

and it is further essential that they should be established to be so by clear and

unambiguous evidence. It is only by means of such evidence that the Courts can be

assured of their existence and that they possess the conditions of antiquity and certainty

on which alone their legal title to recognition depends.

(v) FORMALITIES OF ADOPTIONS

Section 11, Clause (iv) of HAMA, 1956 manifestly envisages that the child to

be adopted must be actually given 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 case

of abandoned child or a child whose parents are not known from the place or family

where it has been brought up) to the family of its adoption. The physical act of giving

49. AIR 1971 SC 1398

50. AIR 1985 Mad. 5 at P.16.
and taking the child is an absolute requirement for a valid adoption. Further mere physical

act of giving and taking is not sufficient for a valid adoption unless such giving and

taking is accompanied with the intention to give and take the child in adoption 51.

For a valid adoption, law requires that the natural parents shall be asked by

the adoptive parents to give his son in adoption and the boy shall be handed over and
52
taken for that purpose . Under the Hindu law, the very ceremony of giving and taking

is in itself symbolic of transplanting the adopted son from the family of his birth to the
53
adoptive family . The objective of the corporeal giving and receiving in adoption is

obviously to secure due publicity. To achieve this object it is essential to have a formal

ceremony. No particular form is prescribed for the ceremony, but the law requires that

the natural parent shall hand over the adoptive boy and the adoptive parent shall receive

him. The nature of the ceremony may vary depending upon the circumstances of each
54
case. But in a ceremony, giving and taking shall be part of it . The parents, after

exercising their volition to give and take the boy in adoption, may both or either of them

delegate the physical act of handling over the boy or receiving him, as the case may be,
55
to a third party . It was held that adoption in violation of sec. 11 (iv) renders the adoption

invalid56. In Hara Dibya V. Pravakara57, it was held that giving and taking is essential for

proof of adoption. But natural mother denies adoption even though giving and taking is

proved, it does not amount to valid adoption. It was also held that amongst ‘Sudras’

there is no ceremony necessary in addition to giving and taking58. Further, under Sec. 11

51. Sita Bai V. Ram Chandra, AIR 1970 SC 343.

52. Devi Prasad v. Triveni, AIR 1970 SC 1286.
53. Kartar Singh (minor) through guardian Bachan Singh V. Surjan Singh (Dead)., AIR 1974 SC 2161.
54. Madhusudan Das V. Narayani Bai, AIR 1983 SC 114; AIR 1988 Pat. 251.
55. Lakshman Singh Kothari V. Smt. Rup Kumar, AIR 1961 SC 1378; AIR 1961 SC 1378; AIR 1997 P & H 280;
AIR 1965 Mad. 191.
56. Golak chandra Ratha V. Kurtibasa, AIR 1979 Orissa 205.
57. OLR (1990) 1189; 70 (1990) C.L.T 607
58. AIR 1975 Orissa 35.
 ; 219 ;

of the Act it is clearly mentioned that the performance of “Datta homam” shall not be

essential to the validity of an adoption58(a>. In Durga pada Jana v. Nimai Charan Jana59,

it is found that there is absence of ceremonies. There was no actual delivery of son by

the father. It is held that the ceremony of giving and taking is mandatory requirement for

a valid adoption, which is lacking in the instant case and held invalid.

In another case 6°, it was held that, plaintiff claiming right over the property in

question being adopted son. Adoptive mother denying the adoption. Allegations that

the physical act of giving and taking was accompanied by “Datta Homa” ceremony.

However, no evidence adduced on behalf of the plaintiff with regard to such “Datta-

Homa” ceremony. Failure on his part to prove giving and taking ceremony. Held that

question of succeeding to the said properly by plaintiff does not arise.

In Arjun Banchlor v. Buchi Banchlor (dead) and other,61 it was held that

adoption results in changing the course of succession, very grave and serious onus

rests upon such person who seeks to displace the natural succession by alleging

adoption.

Further on the issue of performance of formalities, Section 16 of the Act may

also be considered which says that, “whenever any document registered under any law

for the time being in force is produced before any Court purporting to record an adoption

made and assigned by the person giving and the person taking the child in adoption,

the Court shall presume that the adoption had been made in compliance with the
62
provisions of this Act unless and until it is disproved”. This was held in number of cases .

58 (a) A IR 1959 SC 504: Datta homam is not necessary and giving and taking is sufficient.
59. AIR 1986 cal 23.
60. AIR 2000 Orissa 158.
61. AIR 1995 Orissa 32.
62. Amar Singh V.Tejram. AIR 1982 P & H 282; AIR 1988 Krnataka 248; AIR 1998 All 238; AIR 1988 M.P. 125;
AIR 1999 Orissa 12; AIR 1993 A.P 336
 : 220 :

However a Division Bench of the Orissa High Court62<a) has interpreted the provision of

sec. 16 of the Act. According to this decision, only a single document bilaterally signed

by the parties to an adoption (i.e the person giving and the one taking a child in adoption)

can raise the presumption spoken of in Sec. 16 of the Act. Two separate documents

(one signed by the person taking in adoption and the other by the person giving in

adoption) or either of these, can not raise such a statutory presumption, In particular, if

a person who claims to have given a child in adoption (to a person now dead) signs a

document to that effect and it is produced in the Court after the commencement of

litigation in which the fact of adoption is at issue, Sec 16 of the Act can not apply. The

burden of proving invalidity of the adoption in any such case is on the person who
63 64
challenges the adoption . It was further held in a case , that in the case of an adoption

which is not supported by a registered document or any other evidence of a clinching

nature if there exists suspicious circumstances, the same must be explained to the

satisfaction of the conscience of the Court by the party contending that there was such

an adoption. Such is the position as an adoption wduld divert the normal and natural

course of succession 65. In Baru (deceased) and another V. Tejpal and others 66 it was

observed by the Court that, the adoption deed is a registered document. Its due execution

and registration were proved from the evidence adduced by the defendants. At this

juncture presumption available under Sec. 16 of HAMA, 1956 can safely be drawn. On

the ground that whether the requisite ceremonies for adoption were performed or not,

the deed can not be challenged.

In Janki Devi V. Fani Narayan Tewari67, it was held that the giving and taking
62(a) Mohd. Aftabuddin v. Chandan, AIR 1977 Ori. 69.
63. Arakhita Swain V. Kandhuni Swain, AIR 1983 Orissa 199; AIR 1988 MP 125; AIR 1992 Bom. 189.
64. Rahasa Pandiani (dead) by L.Rs. and others V. Gokulananda Panda & others, AIR 1987 SC 962:
65. See also Suma Bewa v. Kunja Bihari Nayak, AIR 1998 Orissa 29.
66. AIR 1998 Allahabad 230.
67. AIR 1988 Patna 251; This was an adoption of 1926.
 : 221 :

ceremony is essential to the validity of an adoption. It is an operative part of the ceremony.

The execution of a deed in connection with giving and taking ceremony can be treated

as a substitute for giving and taking ceremony. As the parties are Brahmins, who belong

to twice - born classes, ‘datta homan’ ceremony was essential to be performed. However,

in Madhu Sudan V. Narayani Bai68, it was held that in the case of twice born classes the

ceremony of ‘datta homan’ is not needed if the adopted boy belongs to the same gotra

as the adoptive father.

(vi) ADOPTION BY A WIDOW

Under the Act (HAMA, 1956) a widow has the capacity to adopt a child to

herself in her own right. To have the capacity to make an adoption, a widow must be of

sound mind. If she adopts a son, she must not have a Hindu son, grand son or great

grand son, (whether by legitimate blood relationship or by adoption) living at the time of
69
adoption . If the adoption is of a daughter, the widow must not have a Hindu daughter

or son’s daughter (whether by legitimate blood relationship or by adoption) living at the

time of adoption.70 The son adopted must be at least 21 years younger than herself71.

These conditions are mandatory in nature. In case she has no son or son’s son or son’s

son’s son, but she has step sons, then since there is no blood relationship between her

and her step sons, CL. (i) of sec. 11 can not stand in her way and she can adopt a

child72.

73
In Nathuni Prasad v. Kachnar , an adoption had been made by a widow

before the commencement of the Act without authority from the husband. All the
68. AIR 1983 SC 114.
69. Sec. 11 (i) of HAMA, 1956.
70. Sec. 11 (ii) of HAMA, 1956
71. Sec. 11 (iv) of HAMA, 1956
72. Radha Krishna V. Shyam Sundar, AIR 1964 Orissa 136.
73. AIR 1965 Pat 160
 : 222:

necessary formalities and ceremonies had been performed. The adoption was challenged

after the Act came into force. It was contended that since the adoption fulfilled all the

requirements laid down in the Act, it should be deemed to be valid now. The Court

rejected the contention holding that the Act was not retrospective and could not validate

an adoption which was void under the law then in force. At that time, the authority from

the husband was the basis of the widow’s right to adopt. Now the position has changed

but the initial invalidity could not be cured.

The legal effect of an adoption made by a widow under the Act dops not

seem to be free from doubt. The judgement indicates that an adoption by a widow is

still made to the deceased husband.

74
Eramma V. Muddappa , affirms the proposition that in Mysore, under the

Mysore Hindu Women’s Rights Act, 1933, a Hindu widow or where there are more than

one widows, the seniormost widow, has in the absence of an express prohibition in

writing by the husband , authority to make an adoption. In such a case, authority to

adopt will ordinarily be presumed. Now, under the HAMA, 1956 the Hindu widow can

make an adoption in her own right to herself, even if the husband had expressly prohibited

her from doing so.

75
In the Bombay case, Ankush Narayan V. Jenabai , an interesting question

arose that wherther a son adopted by a widow could be considered to be the son of her

deceased husband. The Learned Judge, Mr. Justice Desai was of view that the child

would not merely be related to the deceased husband but also to the collateral relations

of the husband. He further said that on a widow adopting a son the necessary

consequence that arises under the provisions of the Act is that the child would be the
74. AIR 1966 SC 1137
75. AIR 1966 Bom. 174
 : 223 :

adoptive son of the deceased husband. The same view was held by the Allahabad High

Court76. In the opinion of the High Court, the Act (HAMA, 1956) has only removed the

fetter placed on adoption by a widow viz; permission of her husband. So in the view of

the High Court a son adopted by a widow is to be treated as the son of the widow’s

deceased husband. However, the Madras High Court77 dissenting from the Bombay

and Allahabad High Courts held that a child adopted by a widow does not become the
78
child of the deceased husband. But the Supreme Court in Sawan Ram V. Kalawanti
79
and Sita Bai V. Ram chandra , had taken the view that a son adopted by widow becomes

a son not only of the widow but also of the deceased husband. The Supreme Court

erred in not attaching importance to the circumstance that the adoption by a Hindu

widow is in her own right.

80
In Tahsil Naidu V.Kulla Naidu , it was held that a widow making an adoption,

who had not obtained consent of her husband in his life time, need not obtain consent

of another senior woman who is herself a widow. Consent must be obtained from nearest

male sapinda, The reason being that, Hindu Law considers a woman incapable of

independent judgement and proceeds on the basis that a woman is likely to be misled

by undesirable advisors. The advice of a person incapable of independent judgement

would hardly ensure that the adoption to be made by a widow is proper and justified. So

it would be justified to hold that a Hindu widow, even if she happens to be the nearest

sapinda to the widow seeking to make the adoption, would not be a competent advisor

and consequently, there can be no requirement that her consent must be obtained for

validating the adoption.

76. Subhash Missir V. Thagai Missir, AiR 1967 All 148.

77. Arumugha Udayar V. Valliammai, AIR 1969 Mad. 72
78. AIR 1967 SC 1761
79. AIR 1970 SC 343; See also AIR 1988 Karnataka 139.
80. AIR 1970 SC 1673; See also AIR 1982 Karnataka 334;
 : 224 :

The Supreme Court held that the consent of the majority would be sufficient

to satisfy the requirement that a widow, in making the adoption should consult the

nearest sapindas. The very fact that consent is given by a sapinda implies that the

adoption is desirable and is being restored to by the widow for spiritual and religious

considerations and not out of caprice.

The Supreme Court further held that once the consent of the nearest sapindas

is obtained by a widow, before making an adoption, the question of motive of the widow
81
making the adoption becomes irrelevant and should not be enquired into. The very

fact of the consent being given by the sapindas is a guarantee that adoption is being

made for proper reasons.

82
In G.Appaswami Chettiar V.R. Sarangapani Chettiar , opined that though

the adoption in the present case was made three years before the HAMA, 1956 came

into force, the Court has to take into account the changed circumstances particularly

disappearance of the basis of the requirement of sapinda’s assent on the ground of

presumed incapacity of the women. A widow can now adopt a son or daughter in her

own right and the question of the consent of her husband’s sapindas no longer arises.

83
In P. Laxman Rao V. T. Nandgopal The impugned adoption being prior to

the enforcement of the said Act and the parties in the present case are governed by the

Madras School, it was held that the widow could validly be taken in adoption provided

she had the authority of her husband or she had taken the consent of the Sapinda of

her husband admittedly living separate at the time of his death.

81. See also AIR 1978 SC 1051.

82. Ibid, at P. 1056.
83. AIR 1985 Orissa 111
 : 225 :

84
The Supreme Court in Smt. Shanti Bai V. Smt. Miggo Devi , held that a

widow could not take a boy in adoption without authority of her deceased husband

under Banaras School of Hindu Law.

In Gurunath v. Kamala Bai85, the Supreme Court held that where a Hindu

dies living a widow and a son and that son dies leaving his own widow or his own son to

continue the line by means of adoption then the power of the former widow comes to an

end.

In Neelawa V. K.N. Nhavi86, Shetty J. held that so long as the son’s widow

was present to adopt a son to her husband and thus continue the line, the power of the

mother is extinguished. However, the Bombay High Court in Vaijoba Shamrao V. Vasant

Abaji86(a>, held that if the son or grandson died before the widow without leaving behind

anybody to continue the line, the widow’s power to adopt would get revived, and therefore,
87
the adoption would be valid. The Supreme Court held that the power of the mother did

not revive even on the remarriage of the widowed daughter - in - law. In case adoption
88
is made by a widow, the adopted son does not become a co-owner with her .

Thus on evaluation of the case laws (codified and uncodified) on the point

clearly shows that right of a widow to make an adoption is traditionally there but it was

not absolute. It was qualified by express or implied authority from the husband and in its

absence, by the consent of the sapindas and kinsman. This qualification to the right of

a Hindu widow to make an adoption has to great extent relegated the effectiveness of

her right and, its exercise in her personal capacity and absolute discretion. The son

84. AIR 1980 SC 2008

85. AIR 1955 SC 296
86. AIR 1972 Mys. 218
86 (a) AIR 1974 Bom. 111 (- Adoption took place in 1953)
87. AIR 1990 SC 670.
88. Chandrani Bai. V. Pradeep Kumar, AIR 1991 M.P 286.
 : 226 ;

confers spiritual benefits not only on his deceased father but also on forefathers.

Therefore, to debar the widow to confer spiritual benefits on fore-fathers through an

adoption, if at all the husband does not want, is not justified, Thus, even from religious

or temporal point of view, husband’s absolute discretion to authorize or act to authorize

the widow to make an adoption does not seem logical, reasonable and fair. Although

the Act (HAMA, 1956) is secular in nature, the old principles on the point have not

discarded completely.

(vii) DOCTRINE OF RELATION BACK

Under the Hindu law an adopted son continues the line of the adoptive father

for secular and spiritual purposes and when a widow adopts a son to her husband, the

doctrine of relation back makes sonship retroactive from the moment of the death of the

late husband. The adopted son is deemed to have been born on the date of the

death of the adoptive father. This principle of relation back is based on a legal fiction

that there should be no gap or break in the continuance of the line of the adoptive

father. Whenever the adoption may be made there is no hiatus in the continuity of the

line.

The fiction that an adoption relates back to the date of the death of the

adoptive father applies, only when the claim of the adoptive son relates to the estate of

the adoptive father. But where the succession to the property of a person other than the

adoptive father is involved, the principle applicable is not the rule of relation back but
89
the rule that inheritance once vested can not be divested. The rights of an adopted
90
son can not be more than that of his adoptive father. The Mysore High Court in Ram

88(a). Shripad V. Dattaram, AIR 1974 SC 878.

89. AIR 1962 SC 59.
90. AIR 1972 SC 1401.
 : 227:

90(a)
Chandra V. Ansuya bai, it was held that the doctrine of relation back only establishes

a line of succession and the dispositions made by the father could not be disturbed by

an adoptee who was never in existence as such when dispositions were made. An

adopted son is entitled to claim only the properties of his adoptive father or the interest

of his adoptive father in the properties as on the date of his death.

This theory of relation-back is subject to certain exceptions. One of the

limitations is that if the property by inheritance passed to a collateral and the adopted

son is adopted after the death of the collateral, the adoption can not divest the estate of

the collateral which had gone to his heir by inheritance. Another exception to which the

principle of relation back is subject to is that the adopted son would be bound by any

lawful alienation effected by a male or female heir on the death of the adoptive father
91
and before the date of adoption.

92
In Krishtappa V. Ananta Kalappa, ‘M’ the adoptive father died in the year

1930 leaving behind him, his widow ‘B’ and his two daughters ‘S’ and ‘D\ The widow !B’

and daughters ‘S’ and ‘D’ succeeded to the suit house as his legal heirs in the absence

of a male issue. But soon after the appellant was taken in adoption by ‘B’ for her

husband on 11.5.1953. ‘B’ and her daughters were divested of the estate (ancestral suit

house) vested in them belonging to late ‘M’ and the adopted son became the exclusive

owner of the suit house. The plea that since the appellant, adopted son was born' in the

year 1933 and was not alive by the date of the death of ‘M’ in the year 1930, the suit

property which came to be vested in ‘B’, his widow and two daughters of ‘M’ does not

get divested from them by virtue of his adoption by ‘B’ in the year 1953 is not tenable. An

90(a). AIR 1969 Mys. 64.

91. Revabai V. Sitaram, AIR 1984 M. R 102.
92. AIR 2001 Karnataka 322 (A).
 : 228 :

adopted son is entitled to take in defeasance of the rights acquired prior to his adoption

on the ground that in the eye of law his adoption relates back by a legal fiction to the

date of the death of his adoptive father, he being put in position of a posthumous son.

As such the appellant must be deemed to have been in existence as the son of his

adoptive father, at the time of the latter’s death by virtue of the said legal fiction.

Despite the clear provision in Sec. 12(c) of HAMA, 1956 that the adopted

child shall not divest any person of any estate which vested in him or her before the

adoption, the question of divestment of estate has arisen in several cases. It may be
93 94
due to the main provision in sec. 12 of the Act. The Supreme Court has resurrected

the doctrine of relation back which had been given a decent burial by the HAMA, 1956.

The Supreme Court in this case, as the judgment reveals, was eager to find a father to

the son adopted by a widow and they turned to the deceased husband of the widow,

and labeled him as the adoptive father. It is infact difficult to appreciate the anxiety of

the court to provide an adoptive father only to a son adopted by a widow. If the spinster’s

adopted son or a divorcee woman’s adopted son can not have an adoptive father, we
95
may as well conclude that a widow’s adopted son need not have one.

96
Again in K. Venkata Somaiah V. K Ramasubbamma, the doctrine of relation

back was sought to be resurrected in its pristine form. A sole surviving coparcener had

bequeathed all his properties absolutely to his wife. After the death of her husband she

adopted a son, and under an ante-adoption agreement she gave certain properties to
93. Sec 12 of the Act says, “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 adoption and from such date all 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.”
94. Sitabai V. Ram Chandra, AIR 1970 SC 343; sec also Sawan Ram V. Kalawanti, AIR 1967 SC 1761.
95. The argument and suggestion made by Prof. B. N. Sampath in his article (S.C.J, 1970(2), PP-1-10) is highly
appreciatory. He has suggested that an explanatory clause, stating that the deceased husband of the
widow or the deceased wife of a widower would not be deemed to be the adoptive father or mother when
the widow or the widower adopts a child, be inserted in Sec. 14 of the HAMA, 1956.
96. AIR 1984 A. P.313.
 : 229 :

her adopted son and retained the others for herself. The adopted son sought to divest

his adoptive mother of all the properties but he failed. Kodandaramayya J. said that the

doctrine of relation back could not be resurrected. Then he added :

“After 1956 the HAMA, solved this problem by laying down an express and

explicit rule that the adopted child shall not divest any person of any estate which

vested in him or her before adoption.”

(viii) VALIDITY OF ADOPTION

There is a settled rule of Hindu law that a person cannot be adopted

simultaneously by two persons. Now it has statutory force.96<a> obviously, two person do

not mean husband and wife as in such a case both are adoptve parents of the child,
97
one will be the adoptive father and the other adoptive mother. The rule on simultaneous
98
adoption has been explained and applied in a Bombay case. In this case one Vithal

claimed to be adopted by two co-widows jointly. High Court dismissed the appeal as it

was vitiated by the simultaneous action of two adopters for the same adoptee.

99
The Orissa High Court held, that there is no blood relationship between a

Hindu female and her step son. Sec.11(i) does not stand in the way of the female in

validly taking a boy in adoption.

It was held by the Supreme Court100 that an adoption by a Hindu with

knowledge of his wife’s pregnancy is not invalid. In Gopi V. Madan,101 the Rajastan High

Court said that unsoundness of mind relates to a general condition of mind. Ordinarily,

96 (a). Sec. 11 (v) of HAMA, 1956 :The same child may not be adopted simultaneously by two or more persons.
97. Kasturi V. Pnnamal, AIR 1961 SC 1320.
98. Vithal V. Ansabai, AIR 1977 Bom. 298
99. Radhakrishna V. Bhujan Shri Shyam, AIR 1964 Orissa 136.
100. Guramma V. Mallapa, AIR 1964 SC 510.
101. AIR 1970 Raj 190; See also Babu Barlal Vrs. Guliari, AIR 1979 ALL 1333.
 : 230:

a person is presumed to be of sound mind, and one who alleges that the adopter was
102
not of sound mind at the time of adoption, must establish it. The Supreme Court

observed, “Not in a fit state of mind when he executed the deed of adoption, could not

have, possibly, under-stood the nature and consequences of what he was doing”

103
The Bombay High Court, lays down that Sec.6 does not say that a lunatic

person can not be adopted. There is no such incapacity and held adoption of a lunatic

is valid. Further the Court add & that motive for adoption was not relevant for considering

whether it was valid or not. The motive may be to deprive Devgonda to property in the

family of birth, but it is not relevant. The fact can not be undone on that score and legal

effects avoided.

It was held by the Supreme Court that for validity of an adoption, there must

be a formal ceremony of giving and taking. Although no particular form is prescribed for

the ceremony, the giving and receiving are absolutely necessary to the validity of an

adoption; they are the operative part of the ceremony, being that part of it which transfers
104
the boy from one family to another. Even if there exists an expression of consent or
105
an executed deed of adoption, the physical act of giving and taking is essential.

The requirement of giving and taking is not only necessary in case of minors

but also in case of an adult.106

In Damodar Lai V. Lalli Lai107 it was held that adoption of the brother’s

daughter’s son could not be said to be invalid on the ground that the adoptive father and

102. Madan Lai V. Gopi, AIR 1980 SC 1754.

103. Devgonda V. Shamgonda, AIR 1992 Bom 189.
104. Devi Prasad V.Triveni, AIR 1970 SC 1286 ; See AIR 1985 Pat. 151.
105. Madhusudan V. Smt. Narayani Bai, AIR 1983 SC 114.
106. Dhanraj V. Suraj Bai, AIR 1975 SC 1103.
107. AIR 1985 Raj. 55.
 : 231 :

the natural mother of the adoptee fell within the prohibited degrees of marriage.

The Orissa High Court in Golak Chandra V. Kritibas,108 held that the

requirement of an age gap of twenty one years between the person to be adopted and
109
the adoptee in case of opposite sexes, if violated, renders the adoption invalid and is

sufficient to declare the adoption void.

109(a)
In Nem Chand Shanti Lai Patni V. Basanta Bai, the adopted child was

aged 30 years and was also married. No custom in favour of such adoption could be

established.The age difference between the adoptive mother (adoption was by a widow)

and the adoptive child was only 19 years. Adoption failed on all accounts.

It was held by the Court that once a registered adoption deed is produced

before any Court recording the factum of adoption and it is signed by the person giving

and the person taking the child in adoption, the Court shall presume that the adoption

has been made in compliance with the provisions of this Act unless and until it is

disproved. The presumption at the first place is conclusive, but it is rebuttable provided

the deed of adoption is disproved.110 The presumption is a mandatory requirement,111

but the presumption is not to be made unless the essential conditions laid down under
112
. Sec. 16 are satisfied.

108. AIR 1979 Orissa 205.

109. Sec.11(iii) and (iv) of HAMA, 1956 : The very essence of these provisions are obviously to check any
immoral relationship between the adopter and the adoptee under the disguise of adoption. If the adopter
and the adoptee are of same gender, this age difference is not applicable.
However, Dr. Paras Diwan, has cited an interesting situation in his book, i.e. if a Hindu male wants to adopt
a male child he may adopt a boy whose age is 14 years and 364 days, while the age of his wife may be 18
years or less, the adoption will be valid, though age difference between him and his adoptive mother is no
more than three years. (Dr. Paras Diwan, Law of Adoption, Minority Guardianship and Custody, 3rd Edi,
Universal Law Publishing Co. Pvt. Ltd., 2000 at P.87)
109(a). AIR 1994 Bom. 235.
110. Baru (deceased) & another V.Tejpal, AIR 1998 All 230; See also laxmidhar satapathy V. Lingaraj, AIR 1999
Orissa 12.
111. Ram Jagat V. Smt. Kanchan Devi, AIR 1984 Allahabad 44
112. Bholooram (bhola) V. Ram Lai, AIR 1989 MP198; See also supra, 111.
 : 232 :

113
Ashok Bhan, J. in Narinder-jit kaur V. Union of India, held that subsequent

marriage of adoptive mother does not invalidate the adoption. Adoption in this case

took place on 02.03.1990 and the remarriage of the adoptive mother on 16.11.1994.

114
In Javid Ghorashian V. State of Maharashtra, adopter, a petitioner and his

wife are both foreign national and are fertile, capable of giving birth to the child - Petitioner

having one son from earlier marriage and two sons from present marriage, the Court

held that, the petitioner and his wife are fertile and they are capable of giving birth to the

child, that by itself would not show that the desire of petitioner was mala fide one. The

Court further added that some persons though are physically fit to give birth to a child

may be desirous of adopting a female child if they happen to be having already one or

two male children. The birth of human being is a matter of co-incidence governed by

destiny. One can not say definitely that he would be getting a male or female child after

initial days of conception. The gender identification is a later stage phenomenon.

Therefore, the petitioner and his wife may not be desirous of taking a chance and

wagering with luck. The High Court found the prayer of the petitioner to be bonafide and

genuine and permitted the adoption of the said child.

(ix) Effect of Adoption

The expression “effects of adoption” refers to all the Legal consequences

flowing from an adoption.115 Section 12 of the HAMA, 1956116 deals with the effects of a

113. AIR Punjab & Haryana 280.

114. AIR 2002 Bombay 1.
115. Dani Raiji V. Chandra Prava, 1971 Guj. 188 affirmed in Daniraiji V Chandra Prava, AIR 1975 SC 784.
116. Sec.12 Effects of adoptions 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 can not marry any person when he or she could not have married if he or she had continued in the
family of his or her birth;
 : 233 :

valid adoption. The Bombay High Court117 held that the adopted son is not deprived of

the status given to him of a natural born son as sec. 12 of HAMA, 1956 provides. Where

the natural born son could get a right by birth, the adopted son would also set that

right.

118
It was held in Khazan Singh V. Union of India, that the adoptee is to be

treated from the date of his adoption as if he were born in the adoptive family for all

pracitical purposes. From that date he has to forget that he belonged to another family

except for the purposes mentioned in the section itself.

119
In Ramanna Gowda V. Shankarappa, the Karanataka High Court held that

since on adoption the adopted child becomes a member of the adoptive family and all

ties in his natural family are severed and all ties in the adoptive family are created, the

child adopted by coparcener’s widow becomes a coparcener and therefore, becomes

entitled to share in the joint family property as and when partition is effected. The court

added that even when on the death of one of the two coparceners (when the coparcenary

consists of only two coparceners), the property passes to the sole surviving coparcenary,

on account of the presence of the widow of the coparcener the joint family does not

cease to exist. When the widow of the coparcener adopts a son, the coparcenaries is

revived and the adopted son becomes a coparcener and on partition is entitled to a

share. The court said that the question of vesting and divesting did not arises as the

joint family continued to exist and the properties also continued to be the joint family

F.N. 116 Contd...

(b) any property which is 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.
117. Kesharbai Jagannath Gujar V. State of Maharashtra, AIR 1981 Bom. 115.
118. AIR 1980 Delhi 60.
119. AIR 1988 Kant.248.
 : 234 ;

property. In view of this, the adopted son also has a right to seek partition, and he along

with his adoptive mother could take the same share which the deceased coparcener

would have taken had he been alive.

The Supreme Court has confirmed this view in Dharma Shamrao Agalawe
120
V. Pandurang Miragu Agalawe.

The main object of this section (Sec. 12 of the Act) is to modify the old Hindu

Law which considered “doctrine of relation back”. The Act does away with the theory of

relation back and confers on the child adopted a status equivalent to that of a natural

born child in the adoptive family only from the date of adoption. Though the essence of

sec. 12 is that on adoption all the ties of the adopted child of the family of his birth shall

be deemed to be severed and replaced by those of the adoptive family, only tie that he

retains with his natural family is that he can not marry any person in his natural family
121
whom he could not have married before his adoption. Thus the adoption did not
122
severe the tie of blood relationship. It was held by the Andhra Pradesh High Court

that notwithstanding adoption, a person in Mitakshara family has got a vested right

even in the undivided property of his natural family which on adoption he continues to
123
have a right over it. Again in Har Chand V. Ranjeet , ‘X’ had two sons, ‘A’ and ‘B’. He

died leaving them behind. Subsequently, ‘B’ was given in adoption. ‘A’ Claimed the

entire properties of his father on the averment that on B’s adoption, he left the natural
120. AIR 1988 SC 845 : In this case one P, the Karta of a Mitakshara joint family died, leaving behind two sons,
D and M. Subsequently, in 1928, M died issueless leaving behind his widow. The joint family properties
passed into the hands of D. who was the sole surviving coparcener, M’s widow, having only a right of
maintenance in the joint family properties. After the coming into force of the Act, i.e. in August 1956, she
adopted a son P. Thereafter, P’ and his adoptive mother filed a suit for partition against D, claiming one half
of the joint family property. Vankataramiah, J. observed that a son adopted by a widow was as a son of her
deceased husband and that being so, on adoption, he became a coparcener with his Uncle (his adoptive
father’s brother). Since the adopted son of the widow became a coparcener with his father’s surviving
brother, he was entitled to a share in the joint family property in a partition suit; See also Vasant V. Dattu,
AIR 1987 SC 398.
121. Sec.12(a) of HAMA, 1956, See F. N. 116.
122. Yarlagadda Nayudamma V. Govt, of A. P. AIR 1981 A. P. 19, [Sec. 12 (b) of the Act].
123. AIR 1986 P & H 259.
 : 235 :

family and all his ties were severed. Rejecting this, the Punjab and Haryana High Court

held that soon after the death of X, a share in the properties of his father got vested in

him. Subsequently, on adoption he can not be divested of this property. However, in

124
Devgonda V. Shamgonda, the Bombay High Court held that if there is coparcenary or

joint family in existence in the family of birth on date of adoption, then the adoptee can

not be said to have any vested property. The property does not vest and therefore

provision of Sec. 12(b) of the Act is not attracted. In the context of Sec. 12(b), ‘Vested

property’ means where indefeasible right is created i.e. on no contingency it can be

defeated in respect of particular property. In other words where full ownership is conferred

in respect of a particular property. But this is not the position in case of caparcenary

property. The coparcenary property is not owned by a coparcener and never any

particular property. All the property vest in the joint family and are held by it.

Recently, the dispute arose before the Patna High Court in Santosh Kumar
125
Jalan alias Kanhayalal Jalan V. Chandra Kishore Jalan, that whether the rights of the

adopted child in a coparcenary property in existence at the time of adoption is covered

under proviso (b) of Sec. 12. The Court held that words “Property which vested in adoptee

shall continue to vest in him after adoption in proviso (b) of Sec -12” relates to right of

adoptee of joint possession and enjoyment of coparcenary property and not his

independent exclusive right. After adoption, the adoptee is deemed to be the son or

124. AIR 1992 Bom. 189.

125. AIR 2001 Patna 125; The facts of this case are, for the purpose of the second appeal, the parties i.e.
Chandra Kishore Jalan and Snatosh Kumar Jalan were full brothers by birth. On 17.02.1966 their father
Dwarika Prasad Jalan with the consent of his wife gave the latter in adoption to defendant 2nd party after
performing ceremonies in presence of the relatives and friends.
The case of the Plaintiff is that by virtue of adoption dated 17.2.66 defendant 1 st party became member of
the joint family of his adoptive father and stood divested of his rights and obligations as member of the joint
family of his natural father. After death of Dwarika Prasad Jalan in 1968 plaintiff thus alone inherited his
estate. Defendant 2nd party had brought up defendant 1st party and got him settled in life as his son. In
1980, however, they fell apart and decided to end the relationship (of adoptive father and adopted son). A
Panchyati was held on 16.11.1980. so called Panchanama was prepared to the effect that the adoption
dated 17.2.66 was invalid. The plaintiff in the circumstances filed the suit seeking declaration with respect
to the Panchanama and status of the defendant 1st party, as indicated above.
 : 236 :

daughter of adoptive parents. His previous relationship with family of birth ocmes to and

end. Therefore, claim by adoptee in the coparcenary property / rights of adopted child in

the coparcenary property of natural family in which he had acquired interest by birth is

not maintainable.126

The Court further added that the main provision of Sec. 12 creates, in fact

recognizes, a legal fiction by which the adopted child is deemed to be the son or daughter

of the adoptive parents and member of the new family of his adoptive parents. His

previous relationship with the family of birth having come to an end, the interest which

the adopted child had acquired by birth can not continue after the adoption. Proviso (b)

interjects to protect his rights in any property which stood vested before the adoption.

But it does not mean that the adoptee will continue to have some interest in the estate

of the natural family which he had acquired by birth even though he is legally deemed to

be member of the new family. That could not be the intention of the legislature. The

legislature is supposed to be aware of the principles of Hindu Mitakshara Law. If the

legislature had intend to protect even the coparcenary interest of the adopted child,

perhaps proviso (b) would have been couched in different language. As it is, the proviso

protects only the property which had vested in the adopted child before the adoption. A

coparcener has right to partition of the coparcenary property, he can even bring about

separation in status by unilateral declaration of his intention to separate from the family,

and enjoy his share of property after partition. But it is only after such partition that

‘Vests’ in him. Till partition takes place he has only a right to joint possession and

enjoyment of the property.

The Judge observed that, according to me, what is saved under proviso (b)

126. Dissented from Y. Nayudamma V. Govt, of A. P, AIR 1981 A. P.19.

 : 237 :

is a property which has already vested in the adoptee before adoption by, say, inheritance,

partition, bequeath, transfer etc; which alone can be said to vest in him, to the exclusion

of others. The vesting of that property is not affected by adoption.

Thus in the present case it was held that, on the death of the father, the

plaintiff being the sole survivor coparcener, alone was entitled to inherit his property

and the son given in adoption could not calim any share in view of sec. 12(b) of the Act.

As per proviso (c) of Sec. 12 of the Act, an adopted child cannot have the

right to divest any person of any estate which had vested in him or her before adoption.

Thus, when a person, who was not a coparcener, adopts a son, his adopted son does

not divest him of any property. All his properties continue to vest in him. His adopted

son acquires no interest whatever in his properties. If he dies intestate, his adopted son

alongwith other heirs will succeed to his property. It was held in Joti Dadu Navale V.
127
Manukabai, where a Hindu who had adopted a son, died, leaving behind a daughter

and adopted son, both would inherit the property of their father in equal shares.

128
In Dinaji & others V. Daddi & others, it was held that, Smt.Yashoda Bai who

was the limited owner of the property after the death of the husband and after Hindu

Succession Act came in to force, could become an absolute owner and therefore the

property of her husband vested in her and therefore merely by adopting a child she

could not be deprieved of any of her rights in the property. The adopted child could get

the rights for which he is entitled after her death as is clear from the scheme of Sec. 12

proviso (c) of the Act.

129
The Andra Pradesh High Court held that a sole surviving coparcener can

127. AIR 1988 Bom. 348.

128. AIR 1990 SC 1153; See also AIR 1995 Orissa 212; See also AIR 2002 Karnataka, 73.
129. J. V. Vijaya Bhaskar V. J. Kesava Rao (died) & others AIR 1994 A. R 134.
 : 238:

dispose of the coparcenary property as if it was his separate property as long as he

remains the sole surviving coparcener but not thereafter; and any alienations made

before a son is born to or adopted by him remain unaffected and the same can not be

objected to or challenged by the new coparcener.

If any estate or property is divested to any other person before the adoption
130
then the adopted son is not entitled to get back the said property.

(x) ANTE - ADOPTION AGREEMENT

131
Section 13 of the Act , confers an absolute power of disposal of property to

adoptive father or mother when there is no agreement to the contrary between the

natural parent and adoptive parent. The agreement to the contrary referred to in this

section must obviously be one imposing restriction on the rights of the adoptive father
132
and mother. Sec. 13 has to be read with sec. 17 which prohibits the receipt of any

payment or other reward in consideration of the adoption. Where at the time of adoption

the adoptive father or mother enters into an agreement with the natural parents or

guardian of the adoptive child, where by the right of disposal of property of the former is

restricted, such agreement is enforceable. This was also the law before the Act, which

is now codified and given statutory recognition under sec.13 of the HAMA, 1956.

130. Kishen Baburao V. Suresh Sadhu, AIR 1996 Bom. 50.

131. Ritht of adoptive parents to dispose of their properties
“Subject to any agreement to the contrary, an adoption does not deprieve the adoptive father or mother of
the power to dispose of his or her property by transfer inter vivos or by will.”
132. Prohibition of certain payments
(1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption
of any person, and no person shall make or give or agree to make or give to any other person any payment
agree to make or give to any other person any payment or reward the receipt of which is prohibited by this
section.
(2) If any person contravenes the provisions of sub-sec.(1), he shall be punishable with imprisonment which
may extend to six months, or with fine, or with both.
(3) No Prosecution under this section shall be instituted without the previous sanction of the staff Government
or an officer authorized by the state Govt, in this behalf.
 : 239 :

133
It was held in Nand Kishore V. Bhupindra, that the adopted child can not

demand any property or its enjoyment during the life time of his aodptive father even if

there is an agreement that the adoptive father will not deprive him from inheritance, as

question of inheritance will arise only on the death of the father; till then father has full

rights to hold and enjoy properties.

134
In Duggina V. Duggina , under an ante-adoption agreement, adoptive mother

was given absolute estate in certain properties. Subsequently, the adopted son died.

The adoptive mother made a second adoption. It was held that the second adoption did

not divest her of her estate.

135
In Mukund Singh V. Wazir Singh, it was held that Sec.13 of the Act applies

only where the property after adoption remains capable of being disposed of by the

adoptive father as his property.

An ante-adoption agreement putting restrictions, partial or total, on the power

of adoptive parent to alienate his property is legally binding and enforceable, It is not

affected by the provision of Sec.9{5) and sec.17 of the Act.136 The restrictions on the

adoptive parent’s power of alienation are different from giving consideration for adoption.

The provision contained in sec.17 can be dealt with separately from the

provision contained in Sec.9(5) of the Act. Sec.9(5) of the Act lays down that if the

Court, when according permission for a proposed adoption to be made by the guardian

of the child, should see that “the applicant for permission has not received or agreed to

receive or that no person has made or agreed to make or give to the applicant any

133. AIR 1966 Cal. 181.

134. (1968) 1 APLJ 89.
135. 1971 SCD 305.
136. Jagadish V. Rajendra, AIR 1975 All 359.
 : 240:

payment or reward in consideration of the adoption”. Section 17 of the Act contains a

general provision. Under Section 9(5), The Court has power to allow some consideration

to be received by the guardian, while the Court has no such power under sec.17. The

punishment provided under Sec. 17 can also be inflicted on a guardian who violates the

provision of Sec.9(5).

The provision (contained in Sec. 17) is introduced on grounds of public policy

to prevent trafficking in children and receiving payment or rewards in consideration of

137
giving or taking or agreeing to give or take a person in adoption. The Legislature has

therefore thought fit not only to prohibit such a transaction but to make it an offence and

to prosecute the offender.

138
Adoptee takes whatever is given to him under Ante-adoption agreement.
139
In Dinaji V. Daddi, there was an adoption - deed under which the adoptive mother

had relinquished all her rights in favour of the adopted son. But the deed was
140
unregistered. It was held that, mother’s power of alienation was not extinguished and

any alienation made by her was valid. In Chiranji Lai Sri Lai V. Jasjit Singh,140(a> the

Supreme Court found in the instant case that the photocopy of the letter, presuming

that such letter was written by natural father to adoptive father at the time of giving his

son in adoption. The letter was signed by number of persons except the adoptive father.

Term of the letter that after the death of adoptive father and his wife, adoptive son alone

would have full right on the movable and immovable property belonging to them. It

would mean that if any property is left by deceased adoptive father which is not transferred

137. Commissioner of Gift tax V. Gollapudi Santhamma, 1978 Tax LR 2008.

138. K. Venkata Somalah V. K. Ramasubbamma, AIR 1984 Andhra Pradesh 313.
139. AIR 1990 SC 1153.
140. Sec. 17 (1) (b) of the Registration Act, 1908 lays down that where under a document any right in immovable
property is either assigned or extinguished, it must be registered.
140(a).AIR 2001 SC 266.
 : 241 :

or bequeathed, then adoptive son would be the heir and entitled to receive the same.

This would not mean that there was any restraint on the part of adoptive father to

execute the will. The letter was only a unilateral offer giving child in adoption on certain

exceptions. Even the adoptive father had not accepted the contents of the letter, otherwise

he would have placed his signature on the said letter, Hence there is no positive or

negative agreement limiting the rights of the adoptive father to dispose of the property

by executing the will.

The Supreme Court further observed that the legisleture has codified and

crystalised the situation prevailing prior to the enactment of the Act that there was no

implied contract on the part of the adoptive father or mother in consideration of the gift

of his son by natural father or mother that he or she would not dispose of property by

transfer or by will. However in case of specific agreement to the company between the

parties, the power to dispose of property would be subject to the said agreement.

141
In J. Venkata Vijaya Bhaskar V. J. Keshava Rao, it was held that an ante-

adoption agreement not to claim any property in the adoptive father’s property is valid.

It is not hit by Sec. 17 of the Act. There is no provision in the Act, barring sec. 17, dealing

with ante-adoption agreement. Clause (a) has no application. The will of the legislature

to prevent trafficking in children is reflected in sec.17. It is not intended to cover cases of

the present type where a major had agreed, after receiving considerable properties

from the family in to which he was to be taken in adoption, not to set up any claims with

regard to certain items of the property belonging to the adoptive family. The law in force

before the Act, came into force permitting ante-adoption agreements concluded by a

141. AIR 1994 A. P. 134.

 : 242 :

major at the time of his adoption can not be said to be inconsistent with any of the

provisions of the Act, and therefore clause (b) of sec. 17 is not attracted.

Now, the question arises, when there is an agreement not to adopt, whether

it being contray to public policy would be void or not. There are some confusing precedents
142
to this effect under the pre-Act law. In Suriya Ram V. Raja of Pittapur, two brothers

constituting a coparcenary entered in to an agreement that in the event of a failure of a

male issue in the line of either, no adoption of a male child would be made. It was held

that the agreement could not bind the sons of either. But the Court left open the question

whether the agreement would bind the brothers.

However, Dr. Paras Diwan opined that,143 an agreement not to adopt is void

being against Public Policy.

(xi) PROOF OF ADOPTION

Since the enactment of Hindu Adoptions and Maintenance Act, 1956, every

adoption made by a Hindu has to conform to, and is governed by the provisions of the

said Act. Now, it is well settled that a person who seeks to displace the natural succession

to property by alleging an adoption must discharge the burden that lies upon him by

proof of the factum of adoption and its validity. The burdon of proving adoption lies

heavily on the person who sets up adoption143(a> and the burden must be strictly

discharged. The burden, however, shifts to the person who challenges the adoption to

disprove the adoption, when on account of long lapse of years, direct evidence of

142. (1986) 13, IA 97 ; cited by Dr. Paras Diwan; Indian Personal law series : Law of Adoption, Minority, Guard­
ianship & Custody, 3rd Edi, 2000 at P. 141.
143. Ibid; at P. 142.
143(a).K.C. Sahu & another V. Pradipta Das, AIR 1982 Orissa 114; See also Suma Bewa & Kunja Bihari Nayak,
AIR 1998 Orissa 29; See also Arjun BanchhorV. Buchi Banchhqr, AIR 1995 Orissa 32, See A. Raghavamma
V. Chenchamma, AIR 1964 SC 136.
 : 243 :

144
giving and taking has disappeared. But if direct evidence is available, then the burden

would not shift and the person who claims title on the basis of adoption must discharge

that burden. In the case of an adoption which is not supported by a registred document

or any other evidence of a clinching nature if there exist suspicious circumstances, the

same must be explained to the satisfaction of the conscience of the Court by the party
145
contending that there was such an adoption. It is true that absence of a registered

document creates a suspicious circumstance but that is not sufficient to reject the same
146
when cogent and reliable evidence is adduced by the defendant. In the absence of

proof of giving and taking, entry in the voter’s list only indicating the son of the adopter

would not establish the case of adoption.The evidence of adoption has to be scrutinized
147
since it results in changing the course of succession. It was held in a case that the

presence of witnesses belonging to different castes holding respective positions in life

and in no way under any personal obligation to the adopter, lends naturalness and
148
reality as to the factum of adoption. Conduct on the part of the adopted child
149
subsequent to adoption is also eloquent. In Smt. Chandan Bilasini V. Aftabuddin
150
Khan, there were three other witnesses who were present at the time of the adoption

ceremony who were examined; one of them being the Priest and the other one being a

person who was also present at the time when the deed of adoption was executed by

the adoptive mother and was an attesting witness to the deed. The mere fact that some

other persons who were also present at the adoption ceremony were not examined,

can not be considered as making the adoption doubtful. Looking to the entire evidence

144. Sitaram V. Puranmal, A.I. R. 1985 Orissa 171; See also Govindram V. Ramgopal, AIR 1984 M. P. 136; also
see pabbathi reddy Sudarshan Reddy Vs. P. R. Sashirekhamma, AIR 1996 Andhra Pradesh 300.
145. Rahasa Pandiani V. Gokulananda Panda, AIR 1987 SC 962.
146. Smt. Chandrani Bai V. Pradeep Kumar, AIR 1991 M. P. 286.
147. Smt. Urmila Dei V. Hemanta Kumar, AIR 1993 Orissa 213.
148. AIR 1994 Andhra Pradesh 102; 1993 (2) L.S. (A.P.) 126.
149. Nemichand Shantilal Patni V. Basanti Bai, AIR 1994 Bom. 235.
150. AIR 1996 S.C. 591.
 : 244:

which is on record establishes that the adoption took place by the ceremony of giving

and taking & thus there was a valid adoption.

Registration is not compulsory for adoption under the Act. However, the parties

in their wisdom chosen to register the adoption. As regards proof of adoption, Sec. 16 of

the Act provides that if there is a registered document purporting to record an adoption,

signed by the person giving and the person taking the child in adoption, is produced

before any Court, the Court is required to presume that the adoption had been made in

compliance with the provisions of the Act,151 unless and until it is disproved.151(a) The

burden of proving invalidity of the adoption in any such case is on the person who
152
challenges the adoption. Section 16 clearly indicates that if the plaintiff sets up an

oral adoption in a suit, he has to prove all the conditions of a valid adoption. If however,

the adoption is evidenced by a document in writing which is also registered, then a

presumption has necessarily to be drawn by the Court that the adoption was made in

compliance with the provisions of the Act. This is a mandatory requirement. But the

presumption would arise only if the document is signed not only by the person adopting

the child but also by the person giving the child in adoption. If this condition is not

satisfied, the Court will not be bound to rely upon the statutory presumption. The
153
presumption required to be drawn under Sec. 16 is a rebuttable presumption. A. Division

bench of the Orissa High Court held that two separate documents, one signed by the

person taking in adoption and the other by the person giving in adoption or either of
154
these, cannot raise such a statutory presumption. Section 16 explicitly envisages

that the document has to record an adoption made and that too “in compliance with the

151. Amar Singh V. Tej Ram, AIR 1982 P & H 282.

151 (a).Baru V. Tej Pal AIR 1998, Allahabad 230.
152. Arakhita Swain V. Kandhuni Swain, AIR 1983 Orissa 199;
153. Ram Jagat V. Smt. Kanchan Dei, AIR 1984 Alla. 44.
154. Mohd, Aftabuddin V. Chandan, AIR 1977 Orissa 69.
 ; 245 :

155
provisions of this Act.” Again, the Madhya Pradesh High Court in Bholooram V.
156
Ramlal, held that the presumption is not to be made unless the essential conditions

laid down under S.16 are satisfied. The Punjab and Haryana High Court was of view

that, no doubt this presumption is rebuttable, but not by mere conjunctures or

discrepancies in evidence of little or no consequence, it is the totality of the circumstances

and the evidence on record that must be taken in to account and weighed in deciding
157
whether such presumption stands rebutted. Both factum and validity of adoption can

be disproved by cogent evidence.158 Adoption is more than 30 years old, admission in a

30 years old registered document relating to adoption. It is presumed to be correct in

159
absence of direct evidence of giving and taking. Registered deed wherein the adopter

has made an acknowledgement of the adoption deed by him and also all the provisions

of the Act have been complied with - Held valid.160

Customary law, too can not, make registration of adoption compulsory. The

Gauhati High Court161 held that in Manipur, a collection of local usage, titled the “Manipuri

Customs”, has been recognised by the Courts since long. As regards adoption, this

collection shows that apart from the customary rituals, adoption must be made through

a registered document. On the other hand, the Indian Registaration Act of 1908 - enforced

in Manipur in April, 1950 - makes no such requirement in regard to adoption deeds. The

case finally reaching the Gauhati High Court, the validity of an adoption was challenged

for want of registration as per Manipuri customs. The Court decided that in view of the

absence of the requirement of registration of adoption deeds under the Act of 1908, the

155. Pratapi V. Balkishan, AIR 1988 M. P. 125.

156. AIR 1989 M. P. 198.
157. Karm Chand V. Baljit, AIR 1990 P & H 220.
158. Shakuntala V. Mahesh, AIR 1989 Bom. 353.
159. 1987 Supplement C.L.T., 592.
160. Lakshmidhar V. Lingaraj, AIR 1999 Orissa 12.
161. W. P. Singh V. W.O. Rani Devi, AIR 1977 Gau. 65; cited in XIII, Annual Survey of Indian Law (1977) at
PP.211-12.
 : 246 :

rule stated in Manipuri customs stood superseded.

As neither a registered document nor even a writing is compulsory in case of

adoption, and where there is no such document in existence, compliance with the rules

laid down in the HAMA, 1956 has to be proved. To avoid these problems, and for the

betterment of the adoptee, it is submitted that, the registration of adoption ought to be

made compulsory so as to abolish the private adoptions and to bring a uniformity in the

adoption law and process.

(xii) IRREVOCABILITY OF ADOPTION

No adoption which has been validly made can be cancelled by the adoptive

father or mother or any other person, nor can the adopted child renounce his or her

status as such and return to the family of his or her birth 162.This section provides that a

valid adoption once made is irrevocable and it can not be cancelled by the adoptive

father or mother or any one else. As soon as there is a valid adoption, the adopted child

acquires the status of a child of the adoptive father and mother. All his ties in the natural

family is completely severed. Therefore, the adopted child can not renounce his or her

status as an adopted child and return to his family of birth.

When a single person adopts a child and then marries, the subsequently

married spouse will be the step-parent. So, the step-parent can have no power to cancel

the adoption. Thus neither the adoptive parent nor any other person can cancel an

adoption.The rule that adoption once made can not be cancelled applies to jains also.163

The law previously, under the Hindu Law, was the same. A valid adoption

was valid for all time. It could not be cancelled. This is also the position after the coming

162. Sec. 15 of Hindu Adoption and Maintenance Act, 1956.

163. Ashabai V. Prabhulal, AIR 1960 Raj 304.
 : 247 :

164
into force of the Act . The provision contained in Sec. 15 of the Act deals with the

permanency of adoption.

165
The Supreme Court in Daniraiji Vrs. Chandra Prabha , considered the

question whether an adoption in ‘godda data’ form made before passing of the Hindu

Adoptions and Maintenance Act, 1956 could be cancelled after the Act came into force.

The facts of the case were, the Maharaj of Junagarh Haveli, Shri

Purusottamlalji, who belonged to Vallabhkul, died in 1955 leaving behind a widow and

four daughters. The plaintiff respondent, Chandraprava, was his only heir. The widow,

Chandraprava adopted the appellant defendant (Daniraiji), as a son to her deceased

husband. It was conteded by her (widow) that, she had engaged Daniraiji, the appellant,

for doing the puja of the God as her representative. To inform the devotees about the

appointment of Daniraiji for performing the puja, tilak ceremony was performed. As the

appellant was an orphan, no adoption was made and much less no giving and taking

had taken place. In 1958, Chandraprava the respondent, filed a suit for a declaration

that Daniraiji was not the adopted son of her husband.

The trial court decreed the suit in favour of Chandraprava. The High Court

upheld the decision of the trial Judge 166. It was assumed that there was a custom

known as godda-datta in the concerned family and under that customary law, adoption

can be revoked.This adoption is perhaps the only instance in Hindu law where in adoption

once made can be cancelled. Hence it was held that an adoption in “Godda data” form

made before the passing of HAMA can be cancelled or revoked even after the coming

into force of the Act.

164. Nand V. Bhupindra, AIR 196 Cal 181; Gulkandi V. Prahalad, AIR 1968 Raj. 51; Gopal V. Kanta, AIR 1972
M.P. 193.
165. AIR 1975 SC 784.
166. AIR 1971 Gujrat 188.
 : 248 i

The Supreme Court167, observed, the provisions of the Act are not to affect

any adoption made before its commencement. That is to say, the validity of the adoption

made before the commencement of the Act and also its effect will have to be examined

and determined with reference to the law or the custom as it stood prior to the coming

into force of the Act and not in accordance with it.

The Act does not do away with the incident and characteristic of revocability

of the custom of Godda data.

The Orissa High Court in Dipti Baliar Singh V. B.S.E, Orissa 168, held that

mere difference of opinion between adoptive father and adopted son - No ground to

nullify adoption or to bring severance of link.

The facts of the case were, the petitioner, Dipti Baliar Singh, son of one

Lukar Baliar singh, while he was about three years of age, was given in adoption to one

Kambisa Mallick. After adoption, he was reading in Sudra Sevashram under Baliguda

Police Station. Kambisa Mallick belongs to Kandha community. In the year 1991, Dipti

passed Matriculation examination. His adoptive father Kambisa Mallik did not show any

affection for which he left his house and went back to his natural father. It was contended

that due to ill treatment and want of proper care, he left his adoptive father and came

back to his natural father. Lukas Baliar Singh, natural father of Dipti, was serving as a

Primary School Teacher in Kirikuti Primary School. He died in 1991 while he was in

service. Petitioner (Dipti) approached the D.l of schools, Baliguda and C.l of schools,

Phulbani for his appointment as primary school teacher under the rehabiliation scheme.

But in the school records his name was recorded as Susila kumar Mallick. Before H.S.C

Examination, he tried his best to change his name, but failed to make necessary
167. Supra F. N. 165.
168. AIR 1999 Orissa 166.
 : 249 i

corrections. Therefore, he was applied to the Board authorities for correction, but no

action has been taken. The petitioner went to the court seeking for a direction to the

B.S.E, Orissa to change his name and father’s name in the records maintained by it and

for correction of H.S.C certificate.

The Court held that, though there is no legal bar on a scheduled Tribe adopting

a non-scheduled Tribe person, but the Court while dealing with a case where the

circumstances on the face of it appear to be suspicious, has to adopt a careful and

cautious approach. The Court further observed that merely because there was some

difference of opinion between the adoptive father and the adopted child that can not be

a ground to nullify the deed of adoption.. When a child is adopted, the link with the

original family gets severed. Mere difference of opinion does not bring out severance of

the link. The purpose appears to have the benefit of rehabiliation assistance scheme.

That being the position, no direction can be given to the Board to effect the change as

prayed for.

CRITICAL ANALYSIS:

After a careful study of the trends of judicial decisions, it is observed that,

though the Hindu Adoptions and Maintenance Act, 1956 brought about some vital

changes in Hindu adoption, the Act still contains certain patriarchal notions and gender

biases. Some old principles, which could have been discared, are still retained. Private

adoptions are allowed, which are without any control or supervision of the Court for

which number of disputes arose before the Courts. Although the Act is called as one

Secular Act, theory of spiritual benefit has been reiterated in many decisions. The Courts

still recognize both the religious and secular motives of adoption. Restrictions on numbers

of children to be adopted is there and on this issue the hands of the Courts are tight. As
 : 250 i

the registration of adoptions under the Act is not compulsory, it becomes difficult to

prove the adoption before the Courts and obviously, the Courts are to rely upon the

available evidence, witnesses, sometimes the decisions become detrimental to the

interest of the child. It has been observed that the judiciary has tried to harmonise the

old principles with new one in several decisions.

Customary forms of adoption are still prevalent and some of them seem to

be not in the interest of the child. The provisions of anti - adoption agreement, specially

where it curtails the rights of the adopted child, does not seem sound. However, the

Courts have tried for the best interests, welfare and for the cause of justice to the child

in many occasions, which is reflected in many decisions.

“Law is a social mechanism to be used for the advancement of the society. It

should not be allowed to be a dead weight on the society. While interpreting ancient

texts, the Court must give them a liberal construction to further the interests of the

society. Our great commentators in the past bridged the gulf between law as enounciated

in the Hindu law texts and the advancing society by wisely interpreting the original texts

in such a way as to bring them in harmony with the prevailing conditions. To an extent,

that function has now to be discharged by our superior Courts. That task is undoubtedly

a delicate one. In discharging that function, our Courts have shown a great deal of

circumspection. Under modern conditions legislative modification of laws is bound to

be confined to major changes. Gradual and orderly development of law can only be

accomplished by judicial interpretation. The Supreme Court’s role in that regard is

169
recognised by Art. 141 of our constitution” .

“The exigencies of the times and of the society sometimes demand, even

169. V. D. Dhanwatey V. Commissioner of Income Tax M. P. AIR 1963 SC 683.

 : 251 :

from the judiciary, new, unconventional and uninhilited approach to problems arising

from impact of radical changes in the outlook of the people and the impact of changing

standards or value in all important spheres of human activity. A judge is very often

helpless under such circumstances. He can interpret and expound the law and apply it

as so interpreted and expounded judicially. It is not however, given to him to make laws

nor can he accede to a pressing or popular demand by resorting to a ruse under the

garb of his role as interpreter of the law, But, if ever and when, an appropriate occasion

arises, a judge should not, in my opinion, hesitate to caste away old and rusted moorings

and venture into new, and may be troubled, waters of interpretation of laws to find out

whether the particular law in question is so certain or inflexible as to be incapable of

being adopted to meet the demands of the changed or changing society. He must

exercise utmost caution and restraint; if he finds this can be done within the ambit of his

jurisdiction, function and duty as a judge he must go ahead, else he must leave it to the

Legislature or to the component court if confronted with judicial precedents binding on

170. Kirty J. in Krishna Singh V, Mathura Ahir, AIR 1972 All. 271 at R 283.