Petitioner: Sawan Ram & Others
Respondent: Kala Wanti & Others
Citations: 1967 AIR 1761
Facts:
A widow, whose husband died before the Hindu Succession Act went into effect, adopted respondent 2 after the Act went into effect. He owned some land and a house at the time of his death.
The Respondent No. 2 Deep Chand, son of Brahmanand and his wife Smt. Kala Wanti, was adopted by Smt. Bhagwani, a widow.
On August 24th, 1959, she signed a deed of adoption in this regard.
On the widow’s death, which was on 31st October 1959, the appellant the nearest reversioner of her husband filed a suit challenging the adoption.
Sawan Ram, claiming to be the closest reversioner of Ramji Dass, Smt. Bhagwani’s husband, filed a suit for possession of the land given by Smt.
Issue:
Whether adoption by a widow will be the deemed son of her deceased husband as well?
Appellant Arguments
The first point raised is that, while the appellant did not challenge the finding of fact that respondent No. 2 was, in fact, adopted by Smt. Bhagwani, that adoption was invalid under clause (1) of section 6 read with sub-section (2) of section 9 of the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956). (herein after referred to as “the Act”).
It is argued that if a child’s father is alive, he alone has the right to give in adoption under section 9 (2) of the Act, though this right cannot be exercised without the mother’s consent. In this case, the language of the deed of adoption dated August 14, 1959 was used to argue that Deep Chand was given in adoption to Smt. Bhagwani by his mother, respondent No. 1, despite the fact that his father, a Brahman, was still alive.
The deed of adoption mentions that they had been given in adoption by his “Parents which necessarily includes the father. The following sentence stating that the mother of the boy had ‘put her thumb-mark hereunder in token of her consent, was put in the deed,
Respondent’s Contentions:
• The provision in Section 12 of the Act makes it clear that when a Hindu female who has been married adopts a son, the adopted son becomes the adopted son of her husband as well.
• Under Shastric Law, if a child was adopted by a widow, he was treated as a natural born child and, as a result, he could divest other members of the family of rights that had been vested in them prior to his adoption. Because Section 9(2) of the Adoptions and Maintenance Act states that the father may not give his child up for adoption unless the mother consents.
Judgment
The adoption of Deep Chand was criticised as fictitious and ineffective. Even if the adoption was legal, it was argued that Deep Chand was given the name Smt. Bhagwani’s adopted son and cannot inherit Ramji Das’s property.
The appellant argued that Smt. Bhagwani’s adoption of respondent No. 2 was invalid under Section 6(ii) of the Hindu Adoptions and Maintenance Act, 1956, read with Section 9(2). Section 9(2) provides that if the child’s father is alive, he alone has the right to give in adoption, though this right is not exercised unless the mother consents. Despite the fact that his father was still alive, Deep Chand was given in adoption to Smt. Bhagwani by his mother.
The Court ruled that Deep Chand was adopted by both parents and given to Smt. Bhagwani. Deep Chand was given in adoption by his “parents,” which inevitably included the father, according to the deed. The draftsmen of the deed included the fact that Deep Chand’s mother had actually given her consent and obtained her thumb-print as proof. This mention of consent cannot be used to prove that the child was given in adoption by the mother rather than the father.
Conclusion
This provision in Section 12 of the Act makes it clear that when a Hindu female who has been married adopts a son, the adopted son becomes the adopted son of her husband as well. The appeal was dismissed and child adopted by a widow will be considered to be adopted son of the deceased spouse.
SANGEETA.N
Presidency University, Bangalore
