Section 8, Hindu adoption and maintenance Act,1956: Capacity of a female Hindu to take in Adoption (Brijendra Singh v. State of M.P.)

Facts:

Sometime in 1948, Mishri Bai, a crippled lady was married to Padam Singh and the marriage was solemnized according to customs of village, it was imperative for a virgin girl to get married. Evidence

on record shows that Padam Singh had left Mishri Bai soon after the marriage and since then she was living with her parents. Seeing her plight, her parents had given her a piece of land measuring 32 acres out of their agricultural holdings for her maintenance. In 1970, Mishri Bai claims to have adopted appellant Brajendra Singh. Padma Singh died in the year 1974. The Sub-Divisional Officer, served a notice on Mishri Bai under indicating that her holding of agricultural land was more than the prescribed limit. Mishri Bai filed a reply and contended that Brajendra Singh is her adopted son and both of them constituted a Joint family and therefore are entitled to retain 54 acres of land.  The Sub Divisional officer disbelieved the claim of adoption on the ground that in the entries in educational institutions adoptive father's name was not recorded. Later, she filed for legal adoption of her adopted son and gave her entire property to him. She passed away during the pendency of the case

 

Issue: 

Can a separated wife (Not divorced) adopt a male child without the permission of the husband under Hindu Adoption and Maintenance Act?

 

Ratio Decidendi:

In support of the appeal learned Counsel for the appellant submitted that as the factual position which is almost undisputed goes to show, there was in fact no consummation of marriage as the parties were living separately from the date of marriage. That being so, an inference that Mishri Bai ceased to be a married woman, has been rightly recorded by the trial court and the first appellate court.  Nevertheless, the trial court analysed the material and evidence on record and came to the conclusion that Mishri Bai was living like a divorced woman and is not a divorced woman. The relevant section is, 

Section 8 of the Act reads as follows:

“8. Capacity of a female Hindu to take in adoption - Any female Hindu –

(a) who is of sound mind,

(b) who is not minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has capacity to take a son or daughter in adoption.

We are concerned in the present Clause (c) of section 8. It is now permissible for a female Hindu who is of sound mind and has completed the age of 18 years to take a son or daughter in adoption to herself in her own right provided that (a) she is not married; (b) or is a widow; (c) or is a divorcee or after marriage her husband has finally renounced the world or is ceased to be a Hindu or has been declared to be of unsound mind by a court having jurisdiction to pass a declaratory decree to that effect.  It follows from Clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself even with the consent of her husband because the Section expressly provides for cases in which she can adopt a son or daughter to herself during the life time of the husband. She can only make an adoption in the cases indicated in Clause (c). It is important to note that Section 6(1) of the Act requires that the person who wants to adopt a son or a daughter must have the capacity and also the right to take in adoption. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no dissolution of the marriage. All that the evidence led points out is that the husband and wife were staying separately for a very long period and Mishri Bai was living a life like a divorced woman. There is conceptual and contextual difference between a divorced woman and one who is leading life like a divorced woman. Both cannot be equated. Therefore, in law Mishri Bai was not entitled to the declaration sought for.  

 

Judgement: 

The Court dismissed the appeal with a direction to government as to consider the appellant's case for allotment of the land from the surplus land so that the purpose for which adoption was made and the fact that the appellant nourished a crippled lady treating her to be his own mother would set a healthy tradition and example.