II Year B.B.A., LL. B (Div.

-B) – Semester-IV (2020)

I INTERNAL

FAMILY LAW-II

“IRAC ANALYSIS”

NAME: ISHAN PARASHAR

DIVISION: B

PRN: 20010126182

COURSE: BBA LL.B. (H)

BATCH: 2020-2025
 KUMAR SURSEN V/S STATE OF BIHAR

FACTS OF THE CASE

Shantilal Patni was Kundanbai's husband and the defendant Basantabai's father. Shantilal
passed away in March 1969, leaving behind a wife and a daughter but no male child.
Shantilal possessed an agricultural land that the government wanted to take over, and the
compensation money was sitting in the Land Acquisition Officer's office in Aurangabad at
the time. Shantilal had not left any male issues unresolved, therefore in April 1969, his wife
adopted Nemichand as her son. Nemichand was 30 years old and married when he was
adopted. According to Nemichand, he was adopted in accordance with Shantilal's wishes,
and all the rites and ceremonies were observed. As Shantilal's adopted son, he claimed to
be the heir to his father's estate. Kundanbai passed away in January 1973, having completed
an adoption deed in November 1970. As a result, the plaintiff claims to be the deceased
Kundanbai's adopted son and has contested her final will and testament, which was written
in favour of the defendant. The plaintiff Nemichahd filed a Regular Civil Suit to get a
declaration as adopted son and a perpetual injunction barring the defendant from receiving
the property's compensation amount.The defendant filed a written declaration in response
to the suit, and the adoption and deed were both rejected. The defendant claimed
possession by succession because she is Shantilal's daughter. It was further said that after
Shantilal died, she and her mother Kundanbai inherited the land, and that deceased
Kundanbai made her last will and testament in December 1972, bequeathing her part in the
property to her daughter-defendant. The trial court refused to recognise the plaintiff as the
dead Kundanbai's adopted son after framing necessary issues and considering the facts on
record, and further held the defendant as the rightful owner of the property based on the
will deed. The plaintiff was ruled unsuitable, and the Court dismissed his second regular
appeal as well.
In the present second appeal, the plaintiff challenged these two decrees in the Bombay High
Court.

ISSUE

Can Nemichand be held as the adopted son of Kundanbai?

RULE

The Hindu Adoptions and Maintenance Act, 1956

 Section 10 Persons who may be adopted.— No one is eligible for adoption unless the
following prerequisites are met:
 i. He or she is a Hindu, for example.
ii. He or she hasn't been adopted yet.
iii. He or she has not been married, unless there is a custom or usage relevant to the parties
that allows married people to be adopted.
iv. He or she has not reached the age of fifteen years, unless the parties have agreed to a
custom or usage that allows persons who have reached the age of fifteen years to be
adopted.
 Section 11 Other requirements for a legal adoption. — The following requirements must
be met in every adoption: —
i. If the adoption is for a son, the adoptive father or mother 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 the adoption
ii. If the adoption is for a daughter, the adoptive father or mother must not have a Hindu
daughter or son's daughter (whether by legitimate blood relationship or by adoption)
living at the time of the adoption
iii. The adoptive mother is at least twenty-one years older than the person to be adopted if
the adoption is by a female and the person to be adopted is a male
iv. If the adoptive father is a man and the adoptee is a woman, the adoptive father must be
at least twenty-one years older than the adoptee.
v. No two or more people may adopt the same child at the same time
vi. The child to be adopted must be actually given and taken in adoption by the parents or
guardians concerned or under their authority with the intent to transfer the child from
the family of its birth 1 [or, in the case of an abandoned child or a child whose
parentage is unknown, from the place or family where it has been brought up] to the
family of its adoption:

ANALYSIS

In this case, certain admitted facts must be noted before proceeding to the critical points concerning
the custom prevalent in the community and its proof. It is undisputed that the plaintiff, Nemichand,
was 30 years old, married, and experiencing problems at the time of his adoption. It is also the
plaintiff's case that in his community, a married boy over the age of 15 can be adopted, and a
custom or usage to that effect was frequently in use.

As previously noted, the plaintiff admittedly was thirty years old at the time of the adoption.
Additionally, the plaintiff admits in paragraph 16 of his testimony, as well as in the adoption deed,
that Kundanbai, the adoptive mother, was 50 years old at the time of the transaction. Admittedly,
the ceremony for adoption took place on 11-5-1969, and the deed is dated 21-11-1970. As a result, it
is obvious that the plaintiff was 30 years old at the time of the adoption, while the adoptive mother
was 48 years and 6 months old this shows that, Kundanbai, the adoptive mother, was 19 years older
than the plaintiff. As a result, requirement (iv) is violated, because the adoptive mother was not at
least 21 years older than the individual adopted.

Apart from that, there is a legal impediment against the plaintiff's valid adoption imposed by
condition (vi) of section 11 of the Act. There is no indication in the instance at hand that the plaintiff
Nemichand was actually administered and taken in adoption as needed by that requirement by the
parents or guardian involved. According to the plaintiff's testimony and those of his three witnesses,
the plaintiff Nemichand sat on Kundanbai's lap and the adoption took place. There is no indication in
the data that Nemichand's parents or guardian ever gave him up for adoption during their lifetime.

According to Shri P.R. Deshmukh, counsel for the appellant, Jains adopt children to ensure an heir
and to perpetuate their name. He says adoption in this group has no religious meaning and that no
age or marriage requirement, nor any specific ceremony is required to legalise it.

Shri Deshmukh further argued in Suraj Mal v. Babu Lal1 that adopting a married boy without regard
to age was neither immoral nor against public policy. A judgement in Anirudh Jagdeorao v. Babarao,
1983 Mh.L.J 379 held that the Hindus in Marathwada were controlled by the Vyavahara Mayukha
School of Hindu Law, which authorised a widow to adopt a boy above 15 years of age and also a
married person. A ruling in Kondiba R. Papal v Narayan K. Papal 2 affirmed the ruling in 1983 Mh.L.J
379. As the parties to the present proceedings are also Jains from the Marathwada region, the law
recognises the custom, making the adoption of the plaintiff in picture legal.

However, in Suraj Mal v. Babu Lal, the parties were Oswal Jains who lived in Delhi, and the evidence
established that the boy was adopted in accordance with the Jain custom prevalent in Delhi, which
allowed adoption regardless of marriage or age. In the case of Anirudh Jagdeorao, the parties were
Hindu Marathas, and it was sought and demonstrated that any individual over the age of 15 might
be adopted, even if married.

In the case of Kondiba Rama, it was determined that the tradition among them allowed for adoption
at any age, even if the adopter was older, married, and had children. As a result, when the reality of
adoption was formed by solid proof, its legitimacy was preserved on the basis of tradition as
judicially recognised.

As previously indicated, no one was cross-examined to substantiate the supposed custom in this
community enabling the adoption of a married person above the age of 15.

Therefore, a custom must be established by both parties alleging and proving it, in order for it to
become a rule of law applicable to all parties. T. Saraswathi Ammal v Jagadambal 3states that
tradition cannot be extended by analogy or established "priori." As stated in the same order, no idea
of traditions or deductions from other customs can be incorporated into a rule of decision, but only
any tradition suitable to the parties concerned can be. If the facts in the case are reversed, it is clear
that the appellant neither sets forth nor proves the tradition upon which he relies to inherit his
mother Kundanbai's property.

PETITIONER’S CONTENTION

 The litigants in this case are Jains, and the purpose of adoption in this culture is to establish
an heir and maintain the adopter's name.
 Adoption has no religious connotation, and there are no age or marriage restrictions, nor is
any specific ceremony required to give legal validity to adoption. The practise of adopting a
married son without regard for his age was not immoral nor contrary to public policy.
 The Vyavahara Mayukha School of Hindu Law ruled Hindus in the Marathwada region. The
parties to the present proceedings are Jains from the Marathwada region, and the custom
recognised by law there renders the plaintiff's adoption valid.
1
AIR 1985 Delhi 95
2
(1991) 2 SCC 218
3
AIR 1933 SC 201
RESPONDENT’S CONTENTION

 There are further impediments for the plaintiff, and the adoption must be declared illegal
due to non-compliance with Section 11(iv) and (v) of the HAMA, 1956. These two
prerequisites do not allow for any exceptions, and there can be no question of any
community custom or usage providing for anything other than what these two
circumstances necessitate.
 In order for an adoption to be valid, the adoptive mother must be at least 21 years older
than the person being adopted, and the kid must be proven to have been given and taken in
adoption.

CONCLUSION

The Bombay High Court decided that the lower courts correctly concluded that the plaintiff cannot
be considered Kundanbai's adoptive son and that he has been correctly denied succession to
Kundanbai's property. Thus, the plaintiff's petition for declaration as Kundanbai's adopted son has
been properly dismissed. As established , the defendant-respondent is Kundanbai's daughter, and
Kundanbai also executed a final will and testament in her favour, bequeathing her own portion in
the suit properties to her daughter following the death of her husband Shantilal. As a result, the
plaintiff was properly disqualified from obtaining the consequential remedy of a permanent
injunction barring the defendant from collecting the compensation amount owed and owing to her.
The Second Appeal was dismissed without any costs.