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Date and Time: Thursday 9 June 2022 12:15:00 PM IST
Job Number: 172824350
Documents (83)
1. 1. Short title and extent.—

Client/Matter: -None-
2. 2. Application of Act.—
3. 3. Definitions.—
4. 4. Overriding effect of the Act.—
5. 5. Adoptions to be regulated by this Chapter.—
6. 6. Requisites of a valid adoption.—
7. 7. Capacity of a male Hindu to take in adoption.—
8. [8. Capacity of a female Hindu to take in adoption.—
9. 9. Persons capable of giving in adoption.—
10. 10. Persons who may be adopted.—
11. 11. Other conditions for a valid adoption.—
12. 12. Effects of adoption.—
13. 13. Right of adoptive parents to dispose of their properties.—
14. 14. Determination of adoptive mother in certain cases.—
15. 15. Valid adoption not to be cancelled.—
16. 16. Presumption as to registered documents relating to adoption.—
17. 17. Prohibition of certain payments.—
18. 1. Introductory.—
19. 2. Guardians and Wards Act, 1890: Machinery for appointment of guardian.—
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20. 3. Notice to Indian Council of Social Welfare, Indian Council for Child Welfare or other Social
Organizations.—
21. 4. Child Study Report.—
22. 5. Sponsorship of the foreigner’s application for adoption by recognized child welfare agency of foreigner’s
country.—
23. 6. Home Study Report.—
24. 7. Home Study Report in case of foreigner living in India for a year or more.—
25. 8. Photos of the members of the family of the foreigner-applicant, marriage certificate, certificate of medical
fitness, etc.—
26. 9. Undertaking by the sponsoring agency.—
27. 10. Role of the Foreign Agency in Inter-country adoptions.—
28. 11. Recognition of foreign agencies engaged in inter-country adoptions.—
29. 12. Presence of foreign-parent before the Indian Court.—
30. 13. Position of biological parents.—
31. 14. Recognition of child welfare agencies functioning in the States.—
32. 15. When child is in the care of unrecognized child welfare agency: Procedure for adoption.—
33. 16. Can the child or social welfare agency claim the amount, it had spent for the maintenance and medical
care of the child?—
34. 17. Child residing or under the care of any institute or child welfare agency in one State brought into another
for the purpose of processing its adoption.—
35. 18. Age of the child.—
36. 19. Children of biological parents and: Abandoned children: Procedure for declaration that child is free for
adoption.—
37. 20. Child relinquished by biological parents or unwed mother.—
38. 21. Abandoned child.—
39. 22. Bond and security by the foreign parent.—
40. 23. Progress report.—
41. 24. Failure to make adoption within two years.—
42. 25. Scrutinizing agency.—
43. 26. Procedure to be followed by the Guardian Court.—
44. 27. Disposal of the application by the Guardian Court.—
45. 1. Short title, extent and commencement.—
46. 2. Definitions.—
47. 3. Act not to apply to Muslims and not to affect operation of Act 78 of 1956, etc.—
48. 4. Adoptions to be regulated by this Act.—
49. 5. Power to make adoption orders.—
50. 6. Persons who may adopt.—
51. 7. Persons who may be adopted.—
52. 8. Consent.—
53. 9. Court having jurisdiction to entertain applications.—
54. 10. Procedure before the court, etc.—
55. 11. Interim orders.—
56. 12. Matters to be considered in making adoption orders.—
57. 13. Appeals.—
58. 14. Effect of adoption order.—
59. 15. Special provision for protection of adopted children.—
60. 16. Licensing Authority for adoption institutions.—
61. 17. Licensing of institutions.—
62. 18. Revocation of licence.—
63. 19. Appeal against orders of licensing authority.—
64. 20. Penalties.—
65. 21. Prohibition of certain payments.—
66. 22. Restrictions upon advertisements.—
67. 23. Restrictions on removal of child for adoption outside India.—
68. 24. Provisional adoption by person domiciled outside India.—
69. 25. Power to make rules.—
70. King as Parens Patriae
71. 1. Short title and extent.—
72. 2. Act to be supplemental to Act 8 of 1890.—
73. 3. Application of the Act.—
74. 4. Definitions.—In this Act,—
75. 5. Over-riding effect of Act.—
76. 6. Natural guardians of a Hindu minor.—
77. 7. Natural guardianship of adopted son.—
78. 8. Powers of natural guardian.—
79. 9. Testamentary guardians and their powers.—
80. 10. Incapacity of minor to act as guardian of property.—
81. 11. De facto guardian not to deal with minor’s property.—
82. 12. Guardian not to be appointed for minor’s undivided interest in joint family property.—
83. 13. Welfare of minor to be paramount consideration.—
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART I THE HINDU ADOPTIONS
AND MAINTENANCE ACT, 1956 > CHAPTER I
Law of Adoption, Minority, Guardianship and Custody
PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

(78 of 1956)
[21st December, 1956]
An Act to amend and codify the law relating to Adoptions and Maintenance among Hindus.
CHAPTER I
1. Short title and extent.—
(1) This Act may be called the Hindu Adoptions and Maintenance Act, 1956.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
Comments
1. Scope
This section relates to two matters: (a) title of the Act, and (b) territorial extent of the Act. The Act has no
retrospective application though it applies to pending cases.
2. Title of the Act
The Act is obviously a measure of Indian personal laws which applies to Hindus alone. In India each community
has its own family law. Hindus, the majority community, have their separate family laws, so have the Muslims,
the biggest minority community. Smaller minorities, like Christians, Parsis and Jews, whose number, in the
extent of the population of India, is insignificant, too have their own separate family laws. Hindus and Muslims
have all along claimed that their law is of divine origin. No such claim is made by other communities. The
Modern Hindu law, by judicial interpretation and legislative modification, has undergone so much change that
any claim of divinity for it can hardly be sustained. Muslim law, as administered in modern India, has also
undergone similar changes, though legislative modifications are only a few, yet not insignificant.
Apart from law, in personal matters custom still plays an important role. Some communities are wholly or partly
governed by custom. The Jewish family law in India is entirely customary law. Custom also modifies or
supplements personal law of practically every community, though after the Shariat Act, 1937 this is least in the
case of Muslims. The Khojas of Maharashtra and Meos of Haryana are still not entirely governed by Muslim
Law; in their case, particularly in the case of the latter, it is mostly customary law which is applicable to them. In
Punjab and Haryana the concept of ancestral property in the rural areas is different from the Mitakshara
concept of joint family property and is still recognized in these states by virtue of custom; Hindu law to that
extent stands modified. In rural areas of Punjab and Haryana this custom uniformly applies to practically all
Page 2 of 3
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
communities, including Hindus and Sikhs. Hindu law, codified and uncodified, does not apply to scheduled
tribes which are governed by their tribal customs. In the south of India also, in some communities, Hindu law is
modified by custom. Custom is also important in the case of other communities.
In India, personal law does not differ from State to State. Each community is governed by one single system of
law. Though its members may be settled, domiciled or residing in any part of the country, they will be governed
by the same law. However, within the system of law of each community there are some variations; two groups
of people belonging to the same community may be governed by different sets of rules, as each constitutes a
separate caste, sub-caste or sect or sub-sect or has its own regional peculiarities. These variations, as has
been seen above, may also occur on account of custom which may create variation on the basis that the group
belongs to a region, to a caste, community or tribe or constitutes a family. Hindu law and Muslim law have their
schools. In the case of the former, schools have some regional connotation, while it is not so in the case of the
latter. The Dayabhaga school of Hindu law prevails in Bengal, Assam, Tripura and Manipur. In the rest of India
it is the Mitakshara school that prevails. The Mitakshara school is further sub-divided into four sub-schools, viz.,
the Mithila, the Benares, the Maharashtra or Bombay and the Dravida or the South India school, which, broadly
speaking prevail in their respective jurisdictions. The peculiarity of schools of Hindu law is that if a Hindu
governed by a particular school migrates to another region, he would continue to be governed by his own
school, unless he gives it up and adopts the law of the place where he has settled. The sub-schools in respect
of certain matters have precedence over the law of the Mitakshara; otherwise it is the law of the Mitakshara that
prevails. Another important aspect of Hindu law is that if parties are able to prove that they are governed by
custom, then in all those matters where statutory law still does not override it, custom still prevails over the law.
In modern Hindu law, the schools have still relevance in respect of uncodified Hindu law, particularly joint family
and partition. As to marriage, matrimonial causes, minority, guardianship, adoption, maintenance and
succession, Hindus are uniformly governed by one single system of law—the codified portion of Hindu law. This
includes the Hindu Marriage Act, 1955, thehindu Minority and Guardianship Act, 1956, thehindu Adoptions and
Maintenance Act, 1956 and the Hindu Succession Act, 1956 and a few more.
3. Adoption among Parsis
In India only Hindu law recognizes adoption. Adoption is not recognized under any other Indian personal law,
probably, with the exception of Parsis who under custom recognize adoption in two forms: Palukaputra and
dharmaputra.
4. Appointed Son: Jats of Punjab
Under Punjab customary law an institution somewhat akin to adoption has existed. This is known as
appointment of heir. The institution of appointment of an heir under the Punjab customary law came into
existence with the limited objective in view, viz., to provide a successor to the property of the appointer. It
merely creates a personal relationship between the appointed heir and the appointer; there is no transplantation
of the appointed heir from his natural family to the family of the appointer, and the appointment affects only the
parties thereto.1 In the sense in which the adopted son becomes the member of his adoptive family, the
appointed heir does not become the member of the appointer’s family.2 No relationship of the appointed heir
comes into being with the ascendants or collaterals of the appointer.3 This implies that he has no right of
collateral succession;4 nor is he a lineal descendant of the appointer for purposes of succession.5 The
appointed heir also does not cease to be the member of his natural family.2 He retains the right of collateral
succession in his natural family.6 In Abdul Rehman v. Raghubir Singh,7 the court observed:
A customary adoption in the Punjab is ordinarily no more than a mere appointment of an heir creating only a personal
relationship between the adopter and the adoptee. By such adoption the adoptee does not become the grandson of the
adopter’s father, nor the adoptee’s son becomes the grandson of the adopter.8
But it seems that the customary institution of appointment of an heir is no longer valid after the coming into
force of the Hindu Adoptions and Maintenance Act, 1956.2
An attempt was made by Parliament to have a uniform law of adoption in India, particularly considering the fact
that it is a permissible law, but on account of opposition from a section of fundamentalists among the minorities,
the effort was abandoned.1
5. Territorial Extent
The Hindu Adoptions and Maintenance Act extends to the whole of India except the State of Jammu and
Kashmir. Originally, the Act also did not apply to certain territories which were, before independence, occupied
by the French and Portuguese, and it still does not apply to some territories.
Page 3 of 3
It has been made applicable to:
(a) Dadra and Nagar Haveli, with effect from July 1, 1965,2 and
(b) Pondicherry with effect from May 24, 1965.3
In Pondicherry it does not apply to the Renoncants, i.e., those citizens of India living in Pondicherry who have
opted for local Franco-Indian Law.3
The Act does not apply to Goa, Daman and Diu. In these territories, adoption is regulated by the Goa Hindu
Usage Decree of 1880 and its substitute.
6. Commencement of the Act
Since the Act is silent about the date of the commencement of the Hindu Adoptions and Maintenance Act, the
provisions of the General Clauses Act will apply, according to which the date of the commencement of a
statute, under these circumstances, is the date on which the Act receives the assent of the President.
The Presidential assent was given on December 21, 1956 and thus the Act came into force from that date.
7. Pending Cases
The Act applies to pending cases.4
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW
1 Kehar Singh v. Dewan Singh, AIR 1966 SC 1555 [LNIND 1966 SC 28]; Gurnam Singh v. Asha Kaur, AIR 1977 P&H
103 ; Mela Singh v. Gurdas, AIR 1922 Lah 433 ; Basant Singh v. Brij Raj, ILR (1935) 57 All 494 (PC); Hira Singh v.
Hardat Singh, (1922) 68 IC 763.
2 Kartar Singh v. Surjan Singh, AIR 1974 SC 2161 [LNIND 1974 SC 237].
3 Abdul Rehman v. Raghubir Singh, 1949 PLR 119.
4 Kehar Singh v. Dewan Singh, AIR 1966 SC 1555 [LNIND 1966 SC 28]; Jawala Singh v. Lachhmi, 14 PR 1884 (Gill
Jats of Tehsil Ajnala); Mangal Singh v. Tilak Singh, 61 PR 1899 (Sohel Jats of Ajnala); Chittu v. Jawand Singh, 107 PR
1913 (Sikh Jat of Tarn Taran).
5 Indar Singh v. Gurdevi, AIR 1930 Lah 897 .
6 Kehar Singh v. Dewan Singh, AIR 1966 SC 1555 [LNIND 1966 SC 28]; Jagat Singh v. Ishwar Singh, ILR (1930) 11
Lah 615 .
7 1949 PLR 119.
8 See for details: Paras Diwan, Customary Law, 2nd Edn., 1984, 110-124.
1 The Adoption of Children Bill, 1972. On account of its opposition by the fundamentalists among the minority
communities, it was allowed to lapse with the dissolution of the Lok Sabha in 1976.
2 Dadra and Nagar Haveli Regulation VI of 1963.
3 Pondicherry (Extension of Laws) Act, 1968, section 3, and the Schedule.
4 K.A. Singh v. Nangol, AIR 1965 Manipur 10 .
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
2. Application of Act.—
(1) This Act applies—

(a) to any person, who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that
any such person would not have been governed by the Hindu law or by any custom or usage as
part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.— The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as
the case may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or
Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by
religion and who is brought up as a member of the tribe, community, group or family to which
such parent belongs or belonged; * [***]
**[(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother
or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist,
Jaina or Sikh; and]
(c) any person who is convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the
members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution
unless the Central Government, by notification in the Official Gazette, otherwise directs.
***[(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to
the Renoncants of the Union Territory of Pondicherry.]
Page 2 of 12
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who,
though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the
provisions contained in this section.
Comments
1. Scope
Section 1 of the Act deals with the territorial extent of the Hindu Adoptions and Maintenance Act. While this
section deals with the persons to whom the Act applies, the title of the Act indicates that it is applicable to
Hindus.1 However, it is not an easy question to answer as to who are Hindus.2 The fact of the matter is that the
term Hindu has in modern Hindu law, a very wide connotation.3 It does not merely include all those persons
who are Hindus by religion but also includes within its ambit persons who are Buddhists, Jains and Sikhs by
religion.4 Further, it would be very difficult to look at Hindus purely in terms of religion,5 and if we do so, our
efforts at finding out to whom the Act applies is likely to fail. Thus, persons who are not Christians, Parsis,
Muslims or Jews may also be Hindus. Thus, this secular definition of Hindu may be more apt than the creedal
definition of a Hindu.
2. Hindus: Historical
Before the advent of Muslims in India, the term “Hindu” had no creedal connotation, and in a sense, it is so
even today. Before the advent of Muslims in India, the term has had a territorial designation and also denoted a
nationality.1 It appears that the word “Hindu” came into vogue with the advent of Greeks in India, who called the
inhabitants of Indus Valley as indoi and later on the designation was extended to include all persons who lived
in the Indus Valley and beyond it. With the establishment of Muslim rule in India the term Hindu came to
designate the people of a creed—all those were Hindus by religion came to be known as Hindus. At this stage
of development the term lost its territorial significance. It ceased to designate a nationality. During the Raj, it
again started losing its creedal connotation, and many people who hardly were aware of Hinduism or who could
hardly be called Hindu by religion were designated as Hindus and the Hindu law was applied to them.2 Thus,
during the Raj, a person who was Hindu by religion was obviously a Hindu, but the converse was not true.
There were large number of persons who could hardly be called Hindus by religion, yet Hindu law applied to
them.3 Before the codification of Hindu law, it was easier to define, the term “Hindu” negatively: A person who
was not a Muslim, Christian, Parsi or Jew was a Hindu. On the eve of the codification of law of adoption this
continued to be the position.
In the modern Hindu law we do not have any precise definition of the term “Hindu” either in any statute or in any
judicial pronouncement, and no attempt at defining the term “Hindu” is likely to succeed. Yet we have to know
to whom does Hindu law apply? And we can answer this question without attempting to define the term, but by
working out categories of persons to whom Hindu law applies. These categories are:
A.
(a) Any person who is a Hindu, Sikh, Jain or Buddhist by religion.
(b) Any person who is a convert or reconvert to Hinduism, Sikhism, Jainism or Buddhism.
B. Any person who is born of Hindu parents (this will include Sikhs, Jains and Buddhists), that is to say;
(i) When both parents of a person are Hindus, or
(ii) When one of the parents of a person is a Hindu and who is brought up as a Hindu.
C. Any person who is not a Muslim, Christian, Parsi or Jew and to whom no other law applies.
In short, broadly speaking, the Hindu Adoptions and Maintenance Act applies to those:
(a) who are Hindus, Sikhs, Jains or Buddhists by religion or birth and
(b) who are not Muslims, Christians, Parsis or Jews by religion or birth.
A person who is a Sikh, Jain or Buddhist is not a Hindu by religion, though Hindu law applies to him. Similarly, a
person who is not a Muslim, Christian, Parsi or Jew is not a Hindu by religion though Hindu law applies to him.
Parliament in sub-section (1) of section 2 of the Hindu Adoptions and Maintenance Act categorises the persons
Page 3 of 12
to whom Hindu law applies, and sub-section (3) of that section calls them Hindus. The sub-section runs: “The
expression “Hindu” in any portion of this Act, shall be construed as if it included a person, who though not a
Hindu by religion, is, nevertheless a person whom this Act applies by virtue of the provisions contained in this
section.” This, virtually, means that a uniform family law applies to all persons within the territories of India
(excluding Jammu and Kashmir) who are not Muslims, Christians, Parsis and Jews. That this is what
Parliament meant to enact is amply clear from other provisions of the codified law. For instance, the second
ground of divorce under section 13, Hindu Marriage Act, 1956, is that ‘the respondent has ceased to be a Hindu
by conversion to another religion. If a respondent who is a Hindu by religion converts to Sikhism, Jainism or
Buddhism, he will not cease to be a Hindu. The modern Hindu law does not apply exclusively to Hindus and it
does not apply to all Hindus either. (The codified Hindu law does not apply to those scheduled tribes who are
Hindus). The modern Hindu law is a body of rules of personal law applicable to Hindus as well as several non-
Hindu communities. In the modern Hindu law all those persons to whom Hindu law applies are called “Hindus”.
3. Hindus by Religion
(a) Follower of Hindu Religion
Any person who follows Hindu religion in any of its form or development, either by practising it or by professing
it, is a Hindu. Hindu religion is multifaced and it is difficult to say with precision what is Hinduism. A bold attempt
to define “Hindu” in terms of religion was made by Gajendragadkar, J. in Shastri Yognapurshodasji v. Muldas,1
though elucidation was made in an essentially religious context. The question before the court related to entry
to a temple belonging to the Satsangi cult under the Bombay temple entry legislation. Some followers of the
Swaminarayan sect known as Satsangis on behalf of themselves and on behalf of the Satsangis of the
Northern Diocese of the sect at Ahmedabad filed a suit for injunction on the allegation that one Muldas,
President of the Maha Gujarat Dalit Sangh, intended asserting the right of non-Satsangi Harijans of entering the
temple in exercise of the right conferred on them under the Bombay temple entry law. Their main argument was
that the Swaminarayan sampradaya being a non-Hindu sect and the temple being also a non-Hindu temple, the
Harijans had no right to enter it. In the Supreme Court, with a view to elaborating the meaning of “Hindu
Religion”, Gajendragadkar, J. drew copiously and freely from the works of eminent scholars and writers of
Hindu religion and Philosophy.2 The learned judge quoted with approval the following passage from Tilak’s
Gitarahasya:
Acceptance of the Vedas with reverence, recognition of the fact that means or way of salvation are diverse and
realisation of the truth that number of Gods to be worshipped is large, that indeed is the distinguishing feature of Hindu
religion.
Earlier His Lordship observed: “Beneath the diversity of philosophic thoughts, concepts and ideas expressed by
Hindu philosophers who started different philosophical schools, lie certain broad concepts which can be treated
as basic. The first among these basic concepts is the acceptance of the Vedas as the highest authority in
religious and philosophical matters. This concept necessarily implies that all the systems claim to have drawn
their principles from a common reservoir of thought enshrined in the Vedas......The other basic concept which is
common to the six systems of Hindu philosophy is that all of them accept this view of the great world rhythm,
vast periods of creation, maintenance and dissolution follow each other in endless succession..............It may
also be said that all the systems of Hindu philosophy believe in rebirth and pre-existence.”1
The learned judge, after examining the basic tenets of the Swaminarayan sect, observed that even a cursory
study of the growth and development of Hindu religion through the ages shows that whenever a saint or
religious reformer attempted the task of reforming Hindu religion and fought the irrational or corrupt practices
which crept into it, a sect was born which was governed by its own tenets, but which basically subscribed to the
fundamental notions of Hindu religion and Hindu philosophy. It has never been suggested that these sects are
outside the Hindu brotherhood and the temples they honour are not Hindu temples. The same was held to be
true of the Swaminarayan sect.
It is submitted that Gajendragadkar, J. gave a good working elaboration of Hindu religion in positive terms.
Since the learned judge was called upon to determine whether an essentially religious sect was a Hindu sect,
his task was comparatively easy. The Supreme Court was not required to determine whether a totally non-
religious person or sect was a Hindu or a Hindu sect. Thus, had it been argued before the Supreme Court that
Chamars were not Hindus, its task would have been much more difficult. It is easier to demarcate a religious
sect, whether it is a Hindu sect or not, as it is associated with some form of religion. But it would be very difficult
to define a people or a section of people, like Chamars, who apparently know little of Hindu religion and much
less of Hindu philosophy (in the way in which his Lordship knew about these). We are only left to say that
Page 4 of 12
Chamars (or sudras) have always been considered as Hindus as they belong to one of the four varnas (classes
of Hindus). In our submission any definition of the “Hindu” in terms of religion will always be inadequate.
Undoubtedly, a person who passes the test of Hinduness as laid down by the Supreme Court is a Hindu, but it
cannot be said that a person who does not pass this test is not a Hindu. Here lies the crux of the matter. A
person who has faith in Hindu religion and who practises or professes it, is a Hindu. But a person does not
cease to be a Hindu and is not a less Hindu who does not have faith in Hindu religion or does not practise or
profess it. A Hindu will cease to be Hindu only when he converts to another religion. Thus, even when a Hindu
starts practising, professing or having faith in a non-Hindu religion, he will not cease to be a Hindu unless it is
conclusively established that he got converted into that faith. Similarly, a person does not cease to be a Hindu if
he becomes an atheist, or dissents or deviated the central doctrines of Hinduism, or lapses from orthodox
religious practices, or adopts Western way of life, or eats beef.1
(b) Various Forms of Hindu Religion
In the course of about five thousand years of its existence, Hindu religion has passed through many phases:
from time to time dissentions, new ideas and thoughts and practices have come into existence sometimes
diametrically opposite to each other. The remarkable feature of Hindu religion has been that it was able to
absorb all thoughts, ideas, dissentions, practices and professions in its fold and retain its basic unity. The
fundamental ideal before a Hindu has always been the achievement of the ultimate goal, the realization of the
self. The self may be realised by believing in the unity of God or by worshipping numerous gods and
goddesses. It may be realized by following the bhakti marg, gyan marg or karma marg. It may be realised by
believing that God has embodiment (Sagun) or that it is formless (Nirgun). It may be realized by following the
path laid down in the Vedas or in the Upanishad or in the Geeta. The self may be realized by tapasya or it may
be realized by following the life of a Sadgrihasthi or by leading the life of an Akhand Brahmachari. Thus,
whatever path a person takes to reach the destination for the realization of the self, the Ultimate Principle, he is
following the Hindu way of life, the Hindu religion and the Hindu philosophy, and thus he is a Hindu.
Such are the multifarious and multitudinous ways of Hindu life, such are diverse and numerous paths available
to a Hindu for the realization of the Ultimate Principle (Moksha), that it is almost impossible to classify Hindus
into various cults, sub-cults, or sub-sects. We can here mention some as illustrative cases. Of these, section
2(1)(a) of the Hindu Adoptions and Maintenance Act, 1956 mentions two:virashaivas and lingayats.2 Both pay
homage to Lord Shiva; they deny the supremacy of Brahmans and validity of caste distinctions. The main
difference between the two is that the aversion of lingayats to the god-head of Vishnu is not so intense as that
of virashaivas. Apart from these there are many other sects more or less as pronounced as these, like tantriks,
worshippers of Sakti, worshippers of Vishnu and his various incarnations. In short, whatever form of Hinduism a
person follows, practises, or professes, he is a Hindu.
(c) Development of Hindu Religion
The most remarkable feature of Hinduism is that it has always permitted religious innovations, and thus time
and again new dimensions are added to Hindu religion. Movements after movements have taken place
sometimes discarding some old practices and rituals, sometimes reviving some old practices and rituals and
sometimes making new innovations. Some have professed to purify Hindu religion and some have claimed to
enrich it. Prominent among the modern developments are Brahmos,1Arya
Samajists,2Radhaswamis,3Satsangis4 and Swyamariyathais.5 By and large these movements represent a
revolt against the orthodox practices of Hindus particularly the ceremonial and ritual aspect of Hinduism, or
against the rigidity of class system. All these movements purport to free Hinduism from the supposed or real
degeneration and profess to resurrect it. And for this very reason followers of these movements and sects are
nothing but Hindus.
(d) Followers of Jainism, Sikhism and Buddhism
Even before the codified Hindu law it was well settled that Jains, Buddhists and Sikhs were governed by Hindu
law as modified by custom prevailing amongst them.6 The codified Hindu law also includes them under the
term ‘Hindu’.
At one time a view was expressed that Jains were Hindu dissentors. But it is now established that Jainism has
an origin and history long anterior to the Smritis.7 Jainism rejects the authority of the Vedas and discards all
ceremonies and rituals. Jainism does not believe in the existence of God. It holds that by tapasya, by discarding
worldly life and its manifestations, atma can become parmatma and thus one can attain salvation (moksha):
Both the codified and uncodified Hindu law applies to Jains.8
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Sikhs are dissenters from Hinduism. According to the first Guru Shri Guru Nanak Devji, God is one. Sikhism
discards all forms of Hindu worship and class distinctions. The tenets of Sikhism are essentially theistic, viz.,
God is one—the omnipresent, the omnipotent and omniscient; everyone should worship only one God, instead
of numberless gods and goddesses, and should earn his living with his own labour and skill. It has been held all
along that in the absence of special custom they are governed by Hindu law.1 The codified Hindu law applies to
them just as it applies to Hindus, Jains and Buddhists.
Buddhism like Jainism is also an extreme religion which preaches practically a total negation of life. It has been
an established view that the Buddhists are governed by Hindu law as modified by custom prevalent and
recognized among them.2 The codified Hindu law applies to them just as it applies to any other Hindu.3
In sum, if the nucleus of Hinduness is established, a person is a Hindu, unless it is shown that he had
converted to a non-Hindu religion. In other words, any person who is a Hindu, Jain, Buddhist, or Sikh by religion
is a Hindu if (i) he practises, professes or follows any of these religions, and (ii) he remains a Hindu even if he
does not practise, profess or follow the tenets of any one of these religions.
4. Converts and Reconverts to Hinduism, Jainism, Buddhism and Sikhism
The Hinduism is no proselytizing faith. Neither the Dharmashastra or Grihasutra nor any other work of Hindus
prescribe any ceremony for conversion. The Hindus did not contemplate to convert followers of other faiths to
Hinduism. Hindu religious system is encyclopaedia in character and is a commonwealth of all faiths. It is only
the Arya Samajists, a modern development of Hindus, who prescribe a ceremony or conversion, known as
suddhi. A person who undergoes the ceremony of suddhi becomes a Hindu Arya Samajist.4 The Sikhs, Jains
and Buddhists also permit others to adopt Sikhism, Jainism or Buddhism, as the case may be.
Since conversion in the traditional sense was not available under Hinduism, two modes of conversion came into
existence: (a) acceptance of a person by a community which a person has joined after accepting bona fide the
Hindu faith, or (b) declaration of a person that he has become a Hindu followed by consistently following Hindu
faith. Thus a person may become a Hindu:
(a) By undergoing the ceremony of conversion provided by any of the four religions of Hindus.
(b) By acceptance of person as its member by a Hindu community which a non-Hindu has joined after
accepting Hinduism, Jainism, Sikhism, or Buddhism as his faith, and
(c) By a declaration that a person has become Hindu followed by his consistently following Hindu faith.
(a) Conversion to Hinduism, Jainism, Buddhism and Sikhism
Conversion to another faith is the usual mode of changing his faith to another by a person. A convert is a
person who renounces his faith and adopts another. The usual way of conversion is by undergoing the
ceremonies of conversion prescribed by the religion to which conversion is sought. Under Hindu law, a person
does not lose his faith by mere renunciation of it; nor does he belong to another faith by merely professing it or
practising it. Thus, if a person, Christian by faith, becomes an admirer of Hinduism, so much so that he starts
practising and preaching it, he does not thereby become a Hindu.
Thus, by conversion, a person will become a Hindu if he undergoes the ceremony of conversion as laid down in
Hinduism (i.e. suddhi under the auspices of the Arya Samaj), Jainism, Sikhism or Buddhism.1
(b) Acceptance of a Person as a Member of a Hindu Community which a Person has joined after
Declaring and Accepting Hinduism as his Faith
Since the Dharmashastra did not prescribe any ceremony of conversion, cases came before the Indian courts
where a person has in fact started following and practising a Hindu faith and was accepted as its member by a
Hindu community which he has joined. Should not he be treated a Hindu? Should he be treated a non-Hindu
just because he has not undergone a ceremony of conversion which is not available to him? A series of such
cases came before the High Courts and some controversy naturally arose. Finally the question came before the
Supreme Court in Peerumal v. Poonu Swami,2 Shah, J. observed.
A mere theoretical allegiance to the Hindu faith by a person born to another faith does not convert him into a Hindu, nor
a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to
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the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of a
conversion. No formal ceremony of purification is necessary to effectuate conversion.
In this case, W, the wife was a Christian before marriage. She married a Hindu by Hindu rites and ceremonies,
and thereafter she lived as a Hindu. She was also accepted by the Nadar community as one of its member.
This was a suit for partition between the son of W and her husband H; that is, between father and son, H
impeached the validity of the marriage on the ground that W was a Christian before marriage and no valid
marriage could take place between the Christian and a Hindu. The trial Court, the first appellate Court, the High
Court and the Supreme Court upheld the validity of the marriage on the basis that W had become Hindu as
among the Nadras such marriages were very common.3 Thus a person may become a Hindu if after
expressing an intention, expressly or impliedly, he lives as a Hindu and the community or caste into the fold of
which he is ushered in accepts him as a member of that community or caste. In such a case one has to look to
the intention and conduct of the convert, and if the consensus of the community into which he was initiated is
sufficiently indicative of his conversion, then the lack of some formalities cannot negative what is an
accomplished fact.1 In such a case no formal ceremony of purification or expiation is necessary to effectuate
conversion. It is immaterial to which class of Hindus convert belong. It is also not necessary to show that he
practises or follows tenets of any sect or sub-sect of Hindus. However, because a Hindu of higher caste
becomes a share-holder of the Kerala Scheduled Castes and Scheduled Tribes Welfare Board, it does not
mean that he has been accepted as a member of the schedule caste and thus has become a scheduled
caste.2
(c) Reconvert
A person who has ceased to be a Hindu by converting into another faith, comes back to Hindu faith is also a
Hindu. Thus, a person who ceased to be a Hindu by converting to another faith would again become a Hindu if
he reconverts to Hinduism, Jainism, Buddhism, or Sikhism.3 In other words, a person who ceased to be a
Hindu if he converts to any one of the four religions of Hindus.4 It is not necessary that he reconverts to the
same religion from which he converted to the non-Hindu religion. Thus, a Jain who converted to Islam will be a
Hindu if he converts to Sikhism. However, technically, this is not a case of reconversion but of double
conversion. In a case where a person belonging to a scheduled caste who had converted to Christianity,
reconverts to Hinduism, he and his children will belong to the former schedule castes only if the members admit
him to their fold.5 For reconversion to Hinduism no particular ceremony or any expiatory rite is necessary
unless the practice of caste makes it mandatory.6
Since the courts are not concerned with the motive of the convert or reconvert—whether he does so to take
some religious, social or political advantage (since it appears that the one who converts or reconverts does so
with the motive of deriving some advantage, be it spiritual or otherwise)—conversion or reconversion once it
complies with the formalities laid down or recognized by law, is valid in law, unless it is found to be mala fide or
fake. Many cases of such conversion have come to public gaze, sometimes leading to violent protest. Often a
Hindu converts to Islam with a view of taking advantage of Muslim law provision of having plurality of wives.7
Some Hindu converts to another faith come back to the faith to take some political or other advantage. Most of
the conversion cases relate to members of the scheduled caste who come back to the faith to take advantage
of reservation made for them. In the words of Chinnappa Reddy, J:8
This process goes on continuously in India and generation by generation lost sheep appear to the caste-fold.........This
appears to be particularly so in the case of members of the scheduled castes who embrace other religions in their
quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity.
In S. Anbalagan v. B. Devarajan,1 the Supreme Court was concerned with a Hindu reconvert to Adi Dravida
caste whose parents had converted to Christianity and who was also baptized at the age of seven months. As a
reconvert he successfully contested in the general elections from a reserved seat. His election was challenged
mainly on the ground that since he did not belong to the Adi Dravida caste he could not contest from the
reserved constituency. It was asserted that he continued to be a Christian. After a review of the authorities and
on consideration of the facts, the Supreme Court observed that even if it was assumed that his parents had
converted to Christianity and he was baptized when he was seven months old, there was sufficient evidence
that he had long since reconverted to Hinduism and was accepted as one of its members by the Adi Dravida
caste.
Following earlier authorities, the court quoted the following passage with approval from Perumal Nadar v.
Pannuswami.2
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A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in
another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to
Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally
expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is
necessary to effectuate conversion.3
In our submission these authorities culminating in Perumal Nadar lay down that for conversion or reconversion
the following two conditions are necessary: (a) A bona fide intention to be converted or reconverted to Hinduism
accompanied by conduct unequivocally expressing that intention, and (b) his admission into its fold by the caste
or community which he has joined or rejoined.4
(d) Hindu by Declaration
Peerumal v. Poonuswami,5 laid down two requirements of conversion to Hinduism. In Mohandas v. Devaswami
Board,6 the Kerala High Court has softened the requirements laid by the Supreme Court: If a person bona fide
declares that he is a follower of Hindu religion and he consistently follows Hinduism thereafter, then he would
be deemed to be a Hindu by conversion. In this case one Jesudas, a Catholic Christian by faith and a famous
singer, used to give devotional music in a Hindu temple. He also worshipped there like any other Hindu. He had
also filed a declaration, “I declare that I am a follower of Hindu faith.” On these facts the Kerala High Court held
that Jesudas had become a Hindu by conversion.
(e) Conversion to Caste
In recent times some interesting questions have arisen where an inter-caste marriage or adoption has taken
place. Thus, when a non-Sudra woman married a Sudra or when a non-Sudra boy is adopted by a Sudra, does
the woman or the boy become a Sudra? The answer becomes important as in such a case the convert claims
to benefit and privileges of membership of the scheduled castes. In Horo v. Jahan Ara,1 the question was
whether a Christian woman marrying a member of Mundra tribe could claim to contest for reserved
constituency on the basis that on her marriage to a Mundra she became a Mundra. The Supreme Court
answered the question in the affirmative. But Urmila Gindra v. Union of India,2 Rangarajan, J. of Delhi High
Court answered this very question in negative. In this case a Khatri woman had married a Sudra and claimed a
post reserved for scheduled castes. However, Rangarajan, J., on the other hand, in Khazan Singh v. Union of
India,3 took the view that a non-scheduled caste boy adopted by a scheduled caste male became a member of
the scheduled caste. The learned judge observed:
The worst that can be said is that, borrowing a leaf from the “tax-planner’s” notebook in regard to the permissible, if not
exactly laudable, practice of taking advantage of a loophole in the law, the petitioner has done a bit of “career-
planning”. Since it is lawful if it has the legal effect for which he contends it has to be given effect to and it is not
permissible to refuse to give the legal effect because the course was adopted by the petitioner in order to obtain a post
in government service.
In the result the court held that the non-scheduled caste boy can become a scheduled caste boy by adoption.
5. Hindu by Birth
Since Hinduness of a person by religion is one of the most uncertain factors, in the second category are those
Hindus who are Hindus by birth, irrespective of the fact whether they are Hindus by religion.
A person may be a Hindu by birth:
(a) If at the time of his birth both of his parents were Hindus, and
(b) If at the time of his birth (i) one of his parent was a Hindu, and (ii) he was brought up as a Hindu.
(a) When both Parents are Hindus
Children born of Hindu parents are Hindus. What is needed is that at the time of the birth of the child both
parents should be Hindus. In other words, what is necessary under this category is that both the parents should
be Hindus, Sikhs, Jains or Buddhists. This obviously means that if one parent is Hindu and the other is Jain,
Sikh or Buddhist, then also the child will be Hindu. Such a child may be legitimate or illegitimate, he will,
nonetheless, be a Hindu. It is immaterial that such a child does not profess, practise or have faith in the religion
of its parents. He may grow into adulthood as a totally irreligious person, or as a atheist. The emphasis is on
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the birth. If at the time of the birth both the parents were Hindus, the child is Hindu. If after birth of the child both
or one of the parents convert to another religion, the child will continue to be a Hindu child, unless, in the
exercise of parental right, the child is also converted into the religion in which the parent or parents have
converted. (In respect of a legitimate child this right can be exercised by the father, and in respect of an
illegitimate child by the mother.) It may be emphasised that when both parents are Hindus, it is immaterial how
a child is brought up. If both parents are Hindus, the child will be a Hindu irrespective of its upbringing.
(b) When one Parent is Hindu
Under Hindu law, it is not mandatory that the child must take the religion of his father. It can happen, particularly
when one parent alone is a Hindu, that the child may not be a Hindu even if its father is Hindu and it may be
Hindu even when its father is not a Hindu. A child whose only parent is a Hindu will be Hindu if he is brought up
as a Hindu. Thus the following two requirements should be fulfilled:
(a) At the time of the birth of the child, one of his parent should be a Hindu, and
(b) he should be brought up as a Hindu, i.e., as a member of the tribe, community, group or family to
which the Hindu parent belonged at the time of its birth.
This was the position even before the codified Hindu law.1 In Myna Boyee v. Ootaram,2 where a European
Christian’s illegitimate children from two Hindu women were brought up as Hindus, the court held that such
children were Hindus. Similarly, it was held that sons of a Hindu dancing girl converted to Islam who were
brought up by their grandparents as Hindu were Hindus.3 Obviously, if a child is not brought up as Hindu, he
will not be a Hindu.4
Under the modern Hindu law, the child’s religion is not necessarily that of the father. If the mother of a child at
the time of child’s birth was a Hindu and the child was brought up as a Hindu the child would be Hindu. In the
codified Hindu law it is made evident by the use of the word “belonged” in Explanation(b) of section 2(1) of the
Hindu Marriage Act, 1955. For instance, a child is born of Hindu mother and Muslim father. The child is brought
up as Hindu. Subsequently, mother converts to Islam. If at this point of time question arises whether the child is
a Hindu, we find that neither of the parents is a Hindu but nonetheless the child is a Hindu. The same will be the
position if the child is brought up as a Hindu after the death of the Hindu parent.
Is it necessary that the child should be brought up as a member of tribe, community, caste, group or family to
which the Hindu belonged at the time of birth of the child?1 Suppose the Hindu parent belonged to Brahmin
community and the child is brought up as a Kshatriya child, or the Hindu parent was a Jain, and the child is
brought-up as a Sikh, or the Hindu parent belonged to Jat community and the child is brought as a Buddhist
monk, does it mean that the child will not be a Hindu? In our submission the test is that the child should be
brought up as a Hindu and if a Hindu parent’s child is brought up in any form or development of Hinduism,
Buddhism, Jainism or Sikhism, he will be a Hindu. It is submitted that the bringing up of the child in any of the
religion of Hindus is not necessary, the requirement being that the child should be brought up in the Hindu way
of life.
(c) Legitimate and Illegitimate child
Legitimacy or illegitimacy of a child is immaterial. If both the parents are Hindus, the child will be a Hindu even if
it is of illegitimate birth. Similarly, if one of the parent is a Hindu and the child is brought up as a Hindu he will be
a Hindu irrespective of the fact that it is illegitimate.
6. Non-Muslim, non-Christian, non-Parsi and non-Jew
We have seen earlier that at the time when the Raj was winding-up its Indian Empire, it was easier to define a
Hindu negatively. Any person who was not a Muslim, Christian, Parsi or Jew was a Hindu. It was also a well-
established proposition that Hindu law applied to every Hindu unless he could establish a valid local, trial or
family custom to the contrary. It applied to Aryan Hindus as well as to non-Aryan Hindus. For non-Aryan Hindus
it was not necessary to establish as to whether they have accepted the law as laid down in the Smritis and the
Commentaries. Thus, the Adi-Dravidians and Chamars were held to be Hindus. So were the Dravidians of non-
Aryan descent. Similarly, many aboriginal tribes were considered to be sufficiently Hinduised so as to be
governed by Hindu law. Whether a person has been sufficiently Hinduised or not is a question of fact.2
Complete Hinduisation is not necessary. If a person is sufficiently Hinduised Hindu law will apply to him.3 Thus,
Bhuryyahs Jats, aborigines of Assam, Rajbansis, Kurmis, Mahtos, Santhals, of Chhota Nagpur, and Thattaus,
followers of Makhathayam Thiyas and Ezhuvas of Malabar were held to be Hindu governed by Hindu law.
Followers of the Marumakhattayam law in Malabar and the Aliyasantana law in Kanara and the Jats and other
Page 9 of 12
tribal communities of Punjab which are governed in most matters by their customary law were held to be
Hindus. The Khojahas, the Cutchi Memons, the Boharas, Mopals and the Halai Memons are Muslims but,
subject to the provisions of Shariat Act, 1937, they are governed in matters of succession and inheritance by
Hindu law or custom. The Vannia Tamil Christians of Chittoor district are governed by Hindu law in matters of
inheritance and succession, but section 14, the Hindu Succession Act does not apply to them.1
The codified Hindu law takes this principle a little further. It lays down that a person who is not a Muslim,
Christian, Parsi or Jew is governed by Hindu law, unless it is proved that the Hindu law is not applicable to such
a person. The Hindu Marriage Act, 1955, and thehindu Minority and Guardianship Act, 1956, lay down that
such a person should be domiciled in India, while under the Hindu Succession Act, 1955, and thehindu
Adoptions and Maintenance Act, 1956, domicile is not a necessary condition. Why the requirement of domicile
was laid down in the former two statutes and why it was omitted in the latter is not clear. However, it seems that
in the practical application of the clauses, it is not going to make a difference.
Clause (c) seems to have added to section 2(1) by way of abundant caution. Sometimes it may be difficult to
prove whether a person is a Hindu, though negatively, it may be easier to prove that a person is not a Muslim,
Christian, Parsi or Jew. If the negative is proved, such a person will be presumed to be a Hindu, unless the
presumption is rebutted by proving that Hindu law is not applicable to such a person.
Those persons who are atheists or who believe in all faiths, or in conglomeration of faiths, may fall under this
class. Such persons may not be Muslims, Christians, Parsis and Jews, and yet it may be difficult to prove that
such persons are Hindus. Under the codified Hindu law such persons will be Hindus for the purpose of the
application of Hindu law. As has been seen earlier, there have been several communities, tribes and people
who have been governed by the Hindu law as modified by custom and usage, though they were not strictly
speaking Hindus. To such communities, tribes and people, Hindu law, both codified and uncodified, applies
though persons belonging to such communities, tribes, and people are not Hindus by religion or by birth.
7. Tribes and scheduled tribes
Sub-section (2) of section 2 of the Act excludes scheduled tribes within the meaning of clause (25) of article
366 of the Constitution from the application of Hindu law, unless the Central Government by a notification
makes Hindu law applicable to them.2 Clause (25) defined scheduled tribes thus:
Such tribes or tribal communities or part of or group within such tribes or tribal communities as are deemed under
Article 342, to be scheduled tribes, for the purpose of this Constitution.
Article 342 of the Constitution empowers the President of India to specify by public notification the scheduled
tribes in various States and Union Territories. It also empowers Parliament to modify any such Presidential
notification. There exists a list of scheduled tribes notified by the President or Parliament.
However, Hindu law applies to scheduled castes and non-scheduled tribes.
This clause also does not mean that the scheduled tribes which were, prior to the codified Hindu law, governed
by Hindu law will not, now, be governed by the Hindu law. If before codification any scheduled tribe was
governed by Hindu law, it will continue to be governed by it. However, it will be uncodified Hindu law that will
apply to them. Thus, in Dhannurajya Kirsani v. Sukra Kirsani,1 the Orissa High Court rightly observed that
unless any custom to the contrary is proved, the original text of the Hindu law also applies to the tribal people
living in the interior part of the country whose way of life, their habit and culture have been influenced by the
Aryans and their missionaries through centuries and who in a sense have embraced and profess Hinduism.
Assuming that the tribal people are Dravidian in origin, they having adopted the thoughts, culture and habits of
the Hindus, they can be treated as Hindus for all purposes. But they must be regarded as Sudras the lowest
caste, in the absence of any proof that they have been admitted to the regenerated classes. In this case,
Korapat people were held to be governed by Hindu law. In Govind Potti Govindan Namboodiri v. Kesavan
Govindan Potti,2 the Supreme Court said that Malayala Brahmins are governed by Hindu law, unless they can
be shown to have deviated in any respect and adopted different practices, like local customs if any. Some of
their rights have now been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of 1958). The Act provides for
the family managements and partition of illom properties among Nambudiri Brahmin community. Section 13 of
the Act confers rights on a member of illom to claim partition on per capita basis.
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* The word “and” omitted by Act 45 of 1962, sec. 2(a) (w.e.f. 29-11-1962).
** Ins. by Act 45 of 1962, sec. 2(b) (w.e.f. 29-11-1962).
*** Ins. by Act 26 of 1968, sec. 3 and Sch. (w.e.f. 24-5-1968).
1 That is the significance of the word, “Hindu” in the Hindu Adoptions and Maintenance Act.
2 See Mayne, Hindu Law and Usage 4th Edn., 5. Mayne said, “The assumption that Hindu law was applicable only to
those who believed in the Hindu religion in the strictest sense has no basis in fact, apart from the fact the Hindu religion
has, in parctice, shown much more accommodation and elasticity than it does in theory, communities so widely
separated in religion as Hindus, Jains and Buddhists have followed substantially the broad features of Hindu law as laid
down in Smritis.”
3 Kane, History of Dharmashastra, Vol. I.
4 See footnotes 2 and 3.
5 See Runchordas v. Parvatibai, (1899) 26 IA 71.
1 See Radhakrishnan, Hindu View of Life.
2 Rani Bhagwan Kaur v. J.C. Bose, (1903) 301 IA 249; In the Goods of Jananendra Ray, (1922) 49 Cal 1069; Nalivaksha
Rajani, (1931) 58 Cal 1392.
3 Shastri Yognapurshodasji v. Muldas, AIR 1966 SC 1119 [LNIND 1966 SC 16].
1 AIR 1966 SC 1119 [LNIND 1966 SC 16].
2 Such as Radhakrishnan, Tilak, Monier Williams and Max Muller.
1 AIR 1966 SC 1119 [LNIND 1966 SC 16](1130). In Ashin v. Narendra, 76 CWN 1016 the court observed: “Hindu
religious system is encyclopaediac in character and is a commonwealth of all faiths.”
1 See Rani Bhagwan Kaur v. J.C. Bose, (1903) 301 IA 249. See also Chandrasekhar v. Kulandaivelu, AIR 1963 SC 185
[LNIND 1962 SC 192].
2 Guramma v. Mallappa, AIR 1964 SC 510 [LNIND 1963 SC 195].
1 The Brahmos are reforms of Hinduism who profess to restore the Hindu faith to its original purity. They are Vedantists.
Ram Mohan Roy, the founder of the cult, propounded a monotheistic interpretation of Vedas. The Brahmos are of two
types Anusthanic Brahmos believe in living strictly in accordance with the Brahmo principles and discard the idolatrous
portion as well as the ceremonial and ritualistic aspect of Hindu religion. The Ananusthanic Brahmos are those who
adhere to the old Hindu rituals. See Rani Bhagwan Kaur v. J.C. Bose, (1903) 31 Cal 11.
2 The Arya Samajists believe in the unity of God and in the Vedas. They discard idol worship and are against class
distinction. See Shyamsundar v. Shanker, 1960 May 27.
3 The followers of Radhaswami sect recognize an impersonal deity and name it as Radha Swami Dayal, the Supreme
Being. The deity is represented on this earth by a human being called Santsadguru. They believe that salvation lies
living in the closest possible proximity of the Guru; See Shanti Swarup v. R.S. Sabha, AIR 1969 All 249 .
4 The essence of Satsangi cult is that an individual is enjoined to follow the basic Vedic injunction of good, pious and
religious life and that the path of salvation lies in the devotion to Lord Swaminarayan who was the follower of
Ramanuja; see Sashtri v. Muldas, AIR 1966 SC 1119 [LNIND 1966 SC 16].
5 The Swyamariyathais or self-respectors is an anti-purohit cult which does not believe in caste distinctions and in ritual
and ceremonial aspect of Hinduism.
6 See Rani Bhagwan Kaur v. J.C. Bose, (1904) 31 Cal 11; Rai Bahadur v. Bishan Dayal, (1982) 4 All 343.
7 Boddaladi v. Boddhaladi, (1927) 50 Mad 228, per Kumaraswami Sastri, J.
8 Ghotey Lal v. Choonoo Lal, (1879) 4 Cal 744 (PC); Sheokumarbai v. Jeoraj, (1920) 25 CWN 273 (PC); Sheo Singh v.
Dakho, (1878) 1 All 688; Commissioner of Wealth v. Champa, (1972) 2 SCJ 168 [LNIND 1972 SC 34].
Page 11 of 12
1 Rani Bhagwan Kuer v. J.C. Bose, cited above; Mahant Basant Das v. Hem Singh, (1926) 7 Lah 275 (Udasis); Sugan
Chand v. Prakash Chand, AIR 1967 SC 506 .
2 Ram Pergash v. Dahnab, (1924) 3 Pat 152; Vanni v. Vannichi, (1924) 51 Mad 1 (FB).
3 See sec. 2 of the Hindu Marriage Act, 1955 and similar provision in the other statutes of the codified Hindu law.
4 Kusum v. Satya, (1903) 30 Cal 999.
1 J. Das v. State of Kerala, AIR 1981 Ker 164 [LNIND 1981 KER 50]; Vermani v. Vermani, AIR 1943 Lah 51 .
2 AIR 1971 SC 2352 [LNIND 1970 SC 146].
3 See also Muthusami Mudaliar v. Masilamani, ILR (1910) 33 Mad 342 ; Goona Durgaprasada Rao v. Goona
Sudarsanaswami, ILR (1940) Mad 653.
1 Sethalakshmi v. Poonuswami, ILR (1966) 2 Mad 374 .
2 J. Dass v. State of Kerala, AIR 1981 Ker 164 [LNIND 1981 KER 50].
3 Vermani v. Vermani, AIR 1943 Lah 51 .
4 Ibid. See also V.V. Giri v. D.S. Dara, AIR 1959 SC 1318 [LNIND 1959 SC 130]. In this case the Supreme Court said
that change of caste cannot be effective unless it has received recognition by the caste.
5 Guntar Medical College v. Mohan Rao, AIR 1976 SC 1904 [LNIND 1976 SC 159].
6 S. Anbalagan v. B. Devarajan, AIR 1984 SC 411 [LNIND 1983 SC 363].
7 V.S. Deshpande, Women and the New Law, second Lecture, (1984).
8 S. Anbalagan v. B. Devarajan, AIR 1984 SC 411 [LNIND 1983 SC 363](415).
1 AIR 1984 SC 411 [LNIND 1983 SC 363](415).
2 AIR 1971 SC 2353 .
3 AIR 1984 SC 411 [LNIND 1983 SC 363].
4 See also C.M. Armygam v. S. Rajgopal, AIR 1976 SC 939 [LNIND 1975 SC 534]; Guntar Medical College v. Mohan
Rao, AIR 1976 SC 1905 .
5 AIR 1971 SC 2352 [LNIND 1970 SC 146].
6 1975 KLT 55.
1 AIR 1972 SC 1840 [LNIND 1972 SC 81].
2 AIR 1975 Del 115 [LNIND 1974 DEL 155]
3 AIR 1980 Del 60 [LNIND 1979 DEL 171]; also see Dipti Baliar Singh v. Board of Secondary Education, Orissa, AIR
1999 Ori 166 .
1 Myna v. Ootaram, (1961) 8 MIA 400; Nicolas v. Commissioner of Wealth Tax, AIR 1970 Mad 249 [LNIND 1968 MAD
207](this is a case under codified Hindu law).
2 (1961) 8 MIA 400.
3 Ram Pergash v. Dahnab, (1942) 3 Pat 152.
4 Abraham v. Abraham, 9 MIA 199; Vennomuddala v. Chehkati, AIR 1953 Mad 571 [LNIND 1952 MAD 266].
1 These are the words used in Expl. of section 2(1) of the Hindu Adoptions and Maintenance Act, 1956.
2 Rafail v. Baiha, AIR 1957 Pat 70 .
3 Budh v. Dukhan, AIR 1956 Pat 123 .
1 Abbuttammal v. Taluka Land Board, 1977 KLT 333.
2 See for instance, Dasarath v. Bewa, AIR 1972 Ori 78 [LNIND 1971 ORI 42]; Kandan v. Jitan, AIR 1973 Pat 206 .
1 AIR 1987 Ori 205 [LNIND 1986 ORI 175].
2 AIR 1987 SC 2276 [LNIND 1987 SC 511].
Page 12 of 12
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
3. Definitions.—
In this Act, unless the context otherwise requires,—
(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly
observed for a long time, has obtained the force of law among Hindus in any local area, tribe,
community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that, in the case of a rule applicable only to a family, it has not been discontinued
by the family;
(b) “Maintenance” includes—
(i) in all cases, provision for food, clothing, residence, education and medical attendance and
treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;
(c) “minor” means a person who has not completed his or her age of eighteen years.
Comments
1. Scope
This section defines “custom” and “usage”, “maintenance” and “minor”. Here we are not concerned with the
definition of “maintenance.”
2. Custom and Usage
Custom has always been an important aspect of Hindu Law, not only did the Dharmashastra and
Commentaries and Digests incorporate within its ambit customary rules, they also continued to recognize
Page 2 of 8
custom as an independent source also. The Vedas and the Smritis are said to contain the Divine Revelation; in
reality they incorporated mostly the customs of their times. After the law was reduced into writing by the
Smritikars, the process of legal development was carried on by the Digests and Commentaries. The Digest
writers and commentators in their turn further incorporated the existing custom. But it would be a misnomer to
say that the Smritis, the Digests and the Commentaries incorporate the entire custom or that they have just
given it a formal shape. Authors of the Dharmashastras, though it is more true of Sutrakaras, pretended to
expound the meaning of the Vedas, and the Digest-writers and commentators also professed to comment and
expound the meaning contained in the Smritis. In this process, some of the customs of the times were
incorporated into the rules. But this incorporation was not always a faithful translation of customary rules into
principles of law. The customary rules were modified to suit the needs of the time and also to suit the
philosophy of the times. Yet, neither the Smritikaras and the Digest-writers and the commentators ever claimed
to incorporate custom. They specifically left an area open to custom by saying that the king should decide a
dispute in accordance with custom. They said that the four legs of the law were Dharma, Vyavahara, Charitra
(custom) and Rajya-shasana (royal ordinance or King-made law) and the latter prevailed over the preceding. In
other words, the King-made law was supreme over the first three and the custom was supreme over the first
two. Whether a custom which was palpably contrary to the fundamental principles of the Shastra could be given
effect, may be debatable. At the lower rung of judicial administration, disputes were mostly decided on the basis
of custom. But at the lower rung, the fundamental tenets of the Shastra seldom came into conflict with custom.
3. Requirement of a Valid Custom
Clause (a) of section 3 puts “custom” and “usage” at par and says that they signify any rule which having been
continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local
area, tribe, community, group or family. Thus the clause lays down some of the essential requirements of the
custom and also gives its classification. The requirements of a valid custom under Hindu Law are the
following:—
(a) custom should be ancient, i.e., must have been observed for a long time,
(b) custom should be continuous and uniform, i.e., it must have continuously or uniformly been observed,
(c) custom should be certain,
(d) custom should not be unreasonable, immoral or opposed to public policy,
(e) custom should not be contrary to law.
(a) Custom should be Ancient and Invariable
The first and the foremost requirement of custom is that it must be ancient. The word ancient denotes that
custom must be of some antiquity. But it should be clearly understood that the English law test of custom being
immemorial1 is not applicable in India either in respect of Punjab Customary Law or in respect of Hindu law.2
Section 3(a) of the Adoptions and Maintenance Act, 1956 lays down custom to be valid must have been
observed for a “long time”. It is difficult to say in point of time, as to when could it be said that a custom has
been observed for a long time. In an early case the Madras High Court had said that a custom can receive
recognition only on the satisfactory proof of usage as long and invariably acted upon in practice as to who that it
has, by common consent, been accepted as the established governing rule of the particular family, clan, tribe or
locality.1 In Subhan v. Nawab,2 the Privy Council observed:
It is undoubted that a custom observed in a particular district derives its force from the fact that it has been, from long
usage, obtained in that district, the force of law. It must be ancient; but it is not of the essence of this rule that its
antiquity must, in every case, be carried back to a period beyond the memory of man—still less that it is ancient in the
English technical sense.
What “antiquity” would qualify a custom to be called ancient will vary from case to case. In some cases a view
has been expressed that a custom which is 100 years or so old will qualify for recognition. But, it is submitted
that a more accurate, general statement that could be made is that it should be proved that the custom has
been acted upon in practice for such a long time and with such invariability as to show that it has, by common
consent, been, considered to be the governing rule. In some cases a view has been propounded that it may not
be necessary to prove that a custom in Punjab is ancient; it may be enough to establish that it is being
invariably or very generally followed at the time of the dispute and has been followed for some time in the
past.3 In short, a custom to be valid must be ancient (though for determining of what antiquity, no hard and fast
rule can be laid down), certain and invariable, and if a few violations have been made, the violations
Page 3 of 8
themselves, do not take the place of custom.4 Custom to be ancient must qualify the test that it has obtained
the force of law by long usage, or that it has been acted upon in practice for such a long period and with such
invariability as to show that it has, by common consent, been accepted to be the governing rule of particular
locality or community.5 In respect of a mercantile custom the test is its uniformity or notoriety. If that test is
fulfilled it is treated as ancient.6
In some cases it has been observed that custom may change but then the change should be slow and
imperceptible and should be completed by the time that the changed custom is relied on.7 However, it should
be noted that in our time there will hardly be a case where a new custom could come into existence and claim
recognition.8
In sum, what is necessary to prove is that the usage has been acted upon in practice for such a long period and
with such invariability as to show that it has, by common consent been accepted as the governing rule.9 A
custom cannot come into existence by agreement. Similarly, no new custom can be recognised. In two cases
before the Madras High Court the question was: whether a group or organisation was free to lay down new
ceremonies of marriages. In these cases, “the self-respecters’ cult” in Tamil Nadu State organised a movement
under which traditional ceremonies were substituted by simple ceremonies. The basic idea was to abandon the
Brahmanical or Shastric ceremonies of marriage. The first such marriage took place in 1925. In the first case
which came in 1954 the main question before the court was: could this ceremony be considered as established
by custom? The court said that 25 years is not a sufficiently long period to elevate practice to the rank of
custom.1 In the second case which came in 1966 the court said that it was a different matter as to how much
time should pass to enable a practice to gain judicial recognition as custom, but no useful purpose could be
served by reformers by merely presiding over such marriages and conducting the ceremony according to their
own ideas unmindful of whether such things are valid in law. The court was of the view that in modern times no
one is free to create a law of custom; that is the function of the legislature.2
(b) Custom should be Continuous and Uniform
Continuity is as essential a characteristic of custom as its antiquity. May be, it is established that a custom has
an antiquity of 400 years. But if it has not been followed since then, this fact may be sufficient indication that it
has ceased to exist. Continuity of existence without interruption refers not to its active exercise but rather to the
claim to enjoy it.3 In Rajkishan v. Ramjoy,4 the Privy Council observed, “Their Lordships cannot find any
principle, or authority, for holding that in point of law a manner of descent of an ordinary estate, depending
solely on family usage, may not be discontinued...........It is the essence of family usages that they should be
certain, invariable and continuous and well established, discontinuance may be held to destroy them”. Such
discontinuation may be intentional or accidental. For instance, it is established that about 200 years back a
custom existed under which neighbour, inherited the property in the absence of a blood relation, but there is not
a single instance or other evidence available that after that time it has been ever followed. This means that the
custom had been abandoned or that it had become obsolete. An obsolete law can be repealed but there is no
method of repealing obsolete custom except by abandonment. Abandonment of custom is the only mode by
which a custom can be repealed.
Mere non-exercise of custom; for some time does not necessarily mean that custom has been abandoned.5
Non-exercise of custom for a long time leads to the inference of its abandonment, but that fact alone is not
sufficient and conclusive evidence of its abandonment. A custom cannot be abandoned by mere declaration.
For instance, if widowed daughter-in-law has a right of maintenance against the father-in-law, the father-in-law
cannot bring that custom to an end by a mere declaration. The abrogation or abandonment of custom has to be
inferred from a continuous course of conduct, and abandonment must be after mature consideration and
genuine determination.1
Once it is established that a custom exists, then the rule is that it would be presumed to have continued to exist.
The onus of proving its discontinuance is on that person who alleges its abandonment or discontinuance.2
(c) Custom should not be Unreasonable, Immoral and Contrary to Public Policy
When a custom came for interpretation before the courts during the British rule, the courts tested the
enforceability of custom on several grounds. The most handy test, in the early period, was the doctrine of
justice, equity and good conscience. The courts were further fortified in applying this test when the principle
was specifically enacted in section 7 of the Punjab Laws Act, 1872. The court reportedly laid down that custom
which is contrary to justice, equity and good conscience will not be enforced. Simultaneously—though broadly
speaking it is nothing but the ramification of the doctrine of equity, justice and good conscience—the court also
said that a custom which is unreasonable, immoral or contrary to public policy will not be enforced. If one would
Page 4 of 8
scan the decisions of the courts relating to the application of these tests, it is difficult to put them in any
separate water-tight compartments. These tests over-lap each other. A custom may be struck down because it
is simultaneously bad on the tests of morality, reasonableness and public policy.
Sometimes courts have made sweeping and very general statements which tend to be misleading. For
instance, in any early case the Madras High Court said that in considering whether a custom is reasonable or
unreasonable the courts should not be influenced or guided by modern ideas, for what appears to be
unreasonable to us may have been considered as eminently reasonable in by-gone ages.3 Similarly, a Full
Bench of the Lahore High Court said that the courts are not concerned with public policy and it is only where a
custom, not altered or abolished by statute or competent authority is contrary to justice, equity and good
conscience that they are at liberty to reject it.1 But, it is submitted, as generalized statements in the abstract
these may be unassailable, but in practical application it is seldom that the court can ignore to test the custom
on the contemporary standards of morality, unreasonableness and public policy.4 In Fateh Ali v. Md. Bakhsh,5
the custom in question before the Lahore High Court was the one under which among the prostitutes if any one
of them married she forfeited all rights in her family. Broadway and Jai Lal, JJ. and said that such a custom was
opposed to public policy as well as was immoral and therefore cannot be given effect to. But the, “Chundavand”
(succession in accordance with the number of wives) cannot be said to be either against public policy or
immoral.6
When a custom is tested on the test of reasonability the test is: legal reason warranted by authority of law. A
custom which is prejudicial to a class, though beneficial to an individual, is obviously an unreasonable custom.1
On the other hand, a custom cannot be held unreasonable because it is prejudicial to the interest of an
individual, though beneficial to the community.2 Thus, in Aruri v. Kallu,3 a custom was alleged and proved
under which gold lace manufacturers were liable for any balance of advances made to a worker due to the
previous employers, the court held such a custom as opposed to public policy, as well as to equity, justice and
good conscience. The court held that a custom under which Maliks are not entitled to recover land which has
re-appeared after submission without payment of haq-i-jari to the ala malik,4 or a custom entitling a person to
take water course through the land of another on payment of compensation5 is not unreasonable. A custom of
immemorial antiquity prohibiting testamentary disposition of ancestral property cannot be called unreasonable.6
Most of the customs that have been held unenforceable on the ground that they are repugnant to morality relate
to prostitution. Thus, a custom under which inmates of a brothel enjoy monopoly over the gain of prostitution,7
or adoption of daughters by prostitutes with a view to bringing them up as prostitutes,8 or a custom under which
a brothel-keeper succeeds to the property of prostitutes kept in the brothel,9 is immoral, but custom regulating
succession to the property of prostitutes is not immoral.10 The other set of immoral custom relate to divorce. A
custom permitting a married woman to leave her husband without his permission and contract a second
marriage,11 or a custom which permits dissolution of marriage at the instance of one party but against the
wishes of the other on payment of a sum of money fixed by caste,12 or a custom which attributes all legal
effects of the valid marriage to a mere cohabitation (i.e., when woman lives as a concubine),13 is
unenforceable being contrary to morals. But a custom permitting divorce by mutual consent and remarriages on
payment by one party to the other of the actual expenses of the original marriage,14 or a custom which permits
dissolution of marriage and permits re-marriage of a woman who had been abandoned or deserted by her
husband is valid.15 A custom which permits sale of daughters is immoral.16
There are numerous cases in which customs have been held void and unenforceable on the ground of public
policy. It has been held that it is against public policy to allow murderer and his descendants to succeed to the
estate of the deceased.1 But the disability does not apply to the brother of the murderer.2 Yet, at the same
time, the courts, have held that if a community observes a custom by its common consent, then whether the
custom is barbarous or mild, it should be given effect to3 (it was in the reference to “Chundavand” rule).
Similarly, the courts said that usurpation successfully carried out for a long time may eventually go to establish
a custom.4 Thus, a custom under which the proprietors are entitled to one-fourth of the proceeds of sales of
houses in villages as proprietary dues, is not contrary to justice, equity and good conscience.5 Similarly, a
custom under which shopkeepers in a bazar are entitled to use the land in front of their shops for stocking
grains,6 or a custom which permits residence of a village to use a certain piece of land for staging Ramlila, for
putting up marriage procession, for keeping Khalihan or for tying cattles during the rainy season,7 or the
custom of dhadwai, i.e., sole right to weigh and measure and procure customers for commodities imported into
a market,8 is neither unreasonable nor uncertain nor opposed to public policy. But customs validating the sale
of a religious trust or office is invalid.9
(d) Custom must not be Opposed to Law
Page 5 of 8
Here by being opposed to law we mean opposed to statutory law.10 A custom opposed to sacred law prevails,
but no custom opposed to statutory law can be given effect. The codified Hindu law has abrogated custom
except in a few cases where it has been expressly saved.
4. Classification of Custom
Clause (a) of section 3 talks of local custom, tribal custom, community custom, group custom and family
custom. Customarily, we classify custom as under:
(a) Local custom,

(b) Caste or tribal or community custom, and
(c) Family custom.
(a) Local Custom
A local custom is a custom which prevails in a locality, in geographical area, not necessarily confined to an
administrative division or district, and is binding on all persons in the area within which it prevails. It is different
from a caste custom or family custom. The Privy Council observed in Mt. Subbane v. Nawab.1 “It is undoubted
that a custom observed in a particular district derives its force from the fact that it has, from long usage,
obtained in that district the force of law.”
(b) Caste, Community or Tribal Custom
By far the largest area of custom in personal law of the Hindus is covered by caste or community custom. A
caste or community custom is binding on all the members of the caste or community wherever they may be.
Most of the Punjab customary law is of this nature. The custom among the Jats that one can marry one’s
brother’s widow or the custom which permits marriage with sister’s daughter in South India or the custom
permitting adoption of daughter’s son or sister’s son is of this type.2
In Punjab custom is mostly tribal. It varies from tribe to tribe. Sometimes it varies from place to place, and it
may happen that customs relating to the same tribe often vary from district to district. But, nonetheless, custom
in Punjab is predominantly tribal. In some cases it has been observed that it is not correct to say that the
custom in Punjab is tribal, since it is not necessary that the same custom may prevail in a tribe throughout the
Punjab.3 But custom in the Punjab is certainly tribal in the sense that members of the same tribe wherever they
might be living are generally governed by the same custom. For instance, if a person belonging to a tribe has
properties in different localities, the custom cannot vary in respect of the same person, with the situs of
property.4 Sometimes, custom is called local in the sense that it may differ from place to place and from locality
to locality, and members of the same tribe living in different localities may yet have different customs.
The question whether a custom is local or tribal becomes important when we consider the question of proof of
custom. The difficulties arise as it cannot be said categorically that members of a tribe wherever they may be
are necessarily governed by the same custom or that the people living in a locality are governed by the same
local custom. The fact of the matter is that custom in the Punjab cuts across each other: In a sense it is both
local and tribal and in a sense it is neither local nor tribal. It is incumbent on the person who alleges custom to
prove it.5
(c) Family Custom
Family custom is binding only on the members of the family. As early as 1868 the Privy Council said that
custom binding only on members of family has been long recognized in Hindu law.6 A family custom different
from the law or custom of the locality in which family is living can be proved and is enforceable. A family custom
can be more easily abandoned than a local custom. Impartible estate and succession by the rule of
primogeniture are two important examples of family custom, and the family custom at one time was an
important aspect of Hindu law. As early as 1868, in Soorendranth v. Heeramonee,1 the Privy Council held that
customs binding only on members of the family have been long recognized in Hindu law. It has also been
recognized under customary law. In Garja Singh v. Harmohindar,2 Rangi Lal, J. said that the onus lies heavily
on the person who sets up a special family custom at variance with custom or personal law. In Harnam Singh v.
Upendra Chand,3 the family custom of the family of Rana Mehtab Chand of Manswal in Hoshiarpur District that
the manswal (estate) devolves on the eldest son and that he is the owner of the whole abadi except those
portions allotted to junior members by him or his predecessors, was accepted.
5. Proof of custom
Page 6 of 8
It is now a well-established proposition of law that a person who relies on a custom has to establish (a) the
precise nature of custom, and (b) that he is governed by that custom. The Supreme Court approved4 the
following passage in Daya Ram v. Sohel Singh.5
It lies upon the person asserting that he is ruled in regard to a particular matter by custom to prove that he is so
governed and not by personal law, and further to prove what the particular custom is.
A person who relies on custom has also to prove all the essentials of a custom; such as its antiquity, continuity,
reasonableness etc.
Thus, the burden of proving a custom is on the party who alleges it. There are certain customs of which the
court will take judicial notice: when a custom is repeatedly brought to the notice of the court, the court may hold
the custom proved without any necessity of fresh proof,6 otherwise all customs are to be proved like any other
fact. Custom cannot be extended by analogy.7 Usually custom is proved by instances. How many instances
need be proved, no hard and fast rule can be laid down. A custom can be proved otherwise also. For instance,
a proof of conduct of members of the caste or locality which could be explained on the basis of custom will be
sufficient.8 Record of custom, such as riwaj-i-am, can be used for proving a custom. The riwaj-i-am is a public
record prepared by a public officer in the discharge of his public duties under Government rules. The statement
contained in the riwaj-i-am may be accepted even if unsupported by instance. But proof of custom by such
records is subject to rebuttal. While considering the question whether a custom has been proved or not, the
court should take cognizance of actual facts instead of being swayed by theories.1 Theory and custom are
“antithesis”. Custom can never be a matter of mere theory, but must always be proved as a matter of fact, and
like any other question of fact must be established by cogent evidence.2
6. Custom and the Hindu Adoptions and Maintenance Act, 1956
Section 4 of the Act lays down that any custom or usage immediately in force before the coming into force of
the Act “shall cease to have effect with respect to any matter for which provision is made”, in the Act. Thus,
under the Act custom is saved only on two matters: (a) age of the adopted child,3 and (b) marital status of the
child.4 Therefore, the custom barring jats from making adoption being inconsistent with the Act cannot prevail.5
7. Section 3(c): Minor
Clause (c) of the section defines minor as a person who has not completed his or her age of eighteen years.
This is also the age of majority under the Indian Majority Act.
1 For instance Blackstone said that a “custom in order that it may be legal and binding, must have been used so long that
the memory of man runneth not to the contrary; so that if, any one can show the beginning of it, it is no good custom.”
See Dias, Jurisprudence 4th Edn., 248-250.
2 Subhan v. Nawab, AIR 1941 FC 21 .
1 3 Mad HCR 75.
2 AIR 1941 FC 21 .
3 Daya Ram v. Sohel Singh, (1906) PR 110; Ujagar Singh v. Mst. Joe, AIR 1959 SC 1041 [LNIND 1959 SC 72].
4 Syyed Khadan v. Syyed Md., AIR 1941 Lah 73 .
5 Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 [LNIND 1952 SC 33].
6 Jaggomohan Ghose v. Manik Chand, (1859) 7 JIA 263.
7 Fazl-i-Hussain v. Tafail Hussain, (1932) 13 Lah 410 (Change from Chundawand to Pagwand).
8 Rajothi v. Selliah, (1966) 2 MLJ 46.
9 Mt. Subhani v. Nawab, ILR (1941) Lah 134.
Page 7 of 8
1 Devdna Achi v. Chidambara, AIR 1954 Mad 657 [LNIND 1953 MAD 156].
2 Rajothi v. Selliah, (1966) 2 MLJ 46 in 1969 the Tamilnadu Government passed legislation validating such marriages.
3 Mercer v. Denne, (1904) 2 Ch 539 ; New Windsor Corporation v. Millar, (1975) Ch 380.
4 (1876) 1 Cal 186.
5 125 PR 1879; Teja Singh v. Mirza Sayed, 124 PR 1888.
1 Sardar Bibi v. Haq Nawaz Khan, AIR 1934 Lah 371 (FB).
2 Chunni v. Rafunnissa, (1931) 132 IC 804.
3 Makka Kone v. Ammakutti, (1928) 51 Mad 1.
4 Abbas Khan v. Nurkhan, (1920) 1 Lah 574.
5 (1977) 9 Lah 428
6 Fazl-i-Hussain v. Tafazil Hussain, (1932) 13 Lah 410.
1 Shivanarayan v. Bhutnath, (1918) 45 Cal 475.
2 Aruri v. Kallu, 49 PR 1897.
3 49 PR 1897.
4 Ahmed Shah v. Kuda Bakhsh, 33 PR 1903.
5 Nadha v. Kapuria, 31 PR 1882.
6 Mahipat v. Bhim Singh, (1979) 81 PLR 589 [LNIND 1979 PNH 161].
7 Chinna v. Tegarai, (1876) 1 Mad 168.
8 Mathura v. Esu, (1980) 4 Bom 545; Ghasiti v. Umrao Jan, 52 PR 1893 (PC).
9 Md. Bakhsh v. Nawazish Ali, 75 PR 1918; Murad Baksh v. Dowla, 89 PR 1884.
10 Ghasiti v. Umro Jan, 52 PR 1893 PC.
11 Inder v. Jiwa, 49 PR 1890.
12 Keshav Hargoan v. Bai Gandhi, (1915) 39 Bom 538; Abbas Khan v. Nurkhan, (1920) 1 Lah 574.
13 Pirthi Singh v. Bholai, 29 PR 1883.
14 Chitty v. Chitty, (1894) 17 Mad 421.
15 Gopalkrishna v. Jaggo, (1936) 63 IA 295.
16 106 PRR 1897.
1 Sher Khan v. Md. Khan, (1924) 5 Lah 117.
2 Rawal Singh v. Jai Ram, 69 PR 1919.
3 Eshugbayi v. Officer Adm., 132 IC 739.
4 Ganpat Rai v. Kesho Ram, 34 PR 1909.
5 Ruldu v. Fatteh Ali, 27 PR 1182.
6 Jhandu v. Diwan Chand, 7 PR 1899.
7 Ramdas v. Ramodar, (1923) 72 IC 218.
8 Raje Dattaji Rao v. Puran Mal, (1926) 98 IC 759.
9 Rajah Vurmaha v. Ravi Vurmaha, (1876) 4 IA 76.
10 P. Latchamanna v. Appalaswamy, AIR 1961 AP 55 [LNIND 1960 AP 101].
1 AIR 1947 Lah 154 .
2 For details see, Paras Diwan, Customary Law, (1978), Chapters I to VII.
Page 8 of 8
3 Bissi v. Hira Singh, 75 PR 1917; Dalipa v. Suraj Kaur, 48 PR 1916.

4 Iqbal Singh v. Jasmer Singh, AIR 1934 Lah 296 .
5 Balanda v. Suban, (1935) 17 Lah 232; Kartar Singh v. Preeto, (1935) 17 Lah 296.
6 Surendranath v. Heera Monee, 12 MIA 91.
1 12 MIA 91.
2 AIR 1934 Lah 520 .
3 AIR 1934 Lah 576 .
4 Ujagar Singh v. Jeo, AIR 1959 SC 1041 [LNIND 1959 SC 72].
5 110 PR 1906.
6 Ujagar v. Jeo, AIR 1959 SC 1041 [LNIND 1959 SC 72]; Munnalal v. Rajkumar, AIR 1972 SC 1193 [LNIND 1972 SC
97]; but see Kalimma v. Janarthana, AIR 1973 SC 1134 [LNIND 1973 SC 33]; if earlier decisions are not based on
evidence, then they cannot be relied on (case law reviewed).
7 Saraswati v. Jagdammbal, AIR 1953 SC 201 [LNIND 1953 SC 26].
8 Ahmal v. Chenni, (1925) 52 IA 379.
1 Bano v. Fateh Khan, 48 PR 1103.
2 Gurbhaj v. Lachhman, (1924) 6 Lah 83.
3 Section 10(iv).
4 Section 19(iii).
5 Amin Chand v. Sukhbir Singh, AIR 2009 P&H 24 .
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
4. Overriding effect of the Act.—

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;
(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.
Comments
1. Scope
This section gives overriding effect to the provisions of the Act. In other words, the Act overrides or supersedes
and abrogates the pre-existing Hindu law of adoption.
Under clause (a), the Act supersedes:
(i) any text, rule or interpretation of Hindu law, and

(ii) any custom or usage as part of Hindu law.
But Pre-Act Hindu law of adoption stands abrogated only as regards the matters for which provision is made in
the Act.
Clause (b) abrogates any other law of adoption which was in force immediately before the commencement of
this Act in so far it is inconsistent with any of the provisions of the Hindu Adoptions and Maintenance Act.
2. Institution of Sonship under the Hindu law
Sonship had a great importance in Hindu law. Every Hindu was enjoined to have his own natural born son
Page 2 of 8
(aurasa putra), failing which he could have some other types of son. Adopted son was one such type of son.
Further some types of sons were recognised under custom. To have a son was considered a ‘must’ for every
Hindu. Begetting a son was one of the three debts (debts to the manes) that a Hindu was required to discharge
in this world. Just as a marriage was never considered a purely secular act, so was sonship. Son is called a
putra, “because the son delivers his father from hell, called ‘put’.”1 Baudhayana declared: “Through a son one
conquers the world, through a grand-son one obtains the immortality, and through the great-grandson one
ascends to the highest heaven.”2
It is a remarkable feature of Hindu jurisprudence that throughout the Hindu period, right from the Vedic age to
this date, Hindus have always desired to have an aurasa (natural born legitimate son) for the spiritual benefit
and the continuation of the family. Yet, right from the Vedic age to this date secondary sons have, in one form
or another, existed and have been recognized. In the Vedic literature we find references to kshetraja (soil born),
putrikaputra, kanina (maiden born) and dattaka (adopted) sons. Yet, these were strongly disapproved. In the
Rig Ved we find the following passages: “O Agni, no son is he who springs from other”. Another passage runs:
“A son begotten of another, though worthy of regard, is not to be contemplated even in mind as fit for
acceptance, for verily, he returns to his house. Therefore let there come to us a son new born, possessed of
good qualities and victorious over foes.”
Some consider it as an astounding aspect of Hindu jurisprudence that, on the one hand, the sacredness of the
institutions of sonship and marriage is emphasised—need for morality and chastity of the wife is emphasised in
most unequivocal terms, and on the other, recognition is accorded to as many as thirteen types of sons most of
them are born outside the lawful wedlock, and more than half of them are called sons at the sacrifice of morality
and high principles. It seems that such sons existed under some customs and probably their existence could
not be ignored, and the evocation of our sages to systematization was so great that they placed them in the
classification of sons. One thing is clear that all sages have in no unmistakable terms condemned a sonless
who thinks that it is better to have a substitute of a son than to have no son. Whatever be the reasons, they
were always looked down upon; the injunction was not to have them. Manu, most unambiguously, said: “These
eleven, the soil born and the rest, the wise one calls substitutes of a son are taken with a view to the failure of a
religious duty.”1 After explaining the reason Manu declared:
The one who tries to cross the hell with the help of bad sons obtains result similar to those obtained by one who tries to
cross the water with the help of a sieve.2
Mayne says, “the probable explanation, therefore, appears to be that, with the exception of the kshetraja who
was sui generis, a son born of the wife’s adulterous connection was not in law the son of the husband, if either
the mother of the child or the child was not cast off, the child had to be fitted into the legal system for purposes
of maintenance and guardianship. The son had also to be fitted into the religious system and the question for
which set of manes (pitras) he had to offer the funeral oblations had to be solved. The ingenuity of ancient
Hindu lawyers was exercised in attempting to solve it. In the case of off-spring begotten by another, the son
was assigned to the begetter or to the husband of the mother, if he adopted him, or to both in the peculiar case
of kshetraja.”3 The Hindus never considered an illegitimate son as filius nullius. It is submitted that some of the
illegitimate sons were fitted in the system of sonship; those who were still left out were never denied
maintenance. The one who was, directly or indirectly, responsible for the birth of the child, had to provide
maintenance for it. It is in this background that these various types of sons are to be understood. According to
our sages the number of sons is twelve or thirteen; some omit the putrikaputra, some shaudra (born of a Sudra
wife).
According to Manu sons are classified into two categories. The sons in category (I) are kinsmen as well heirs,
while in category (II) they are only kinsmen.
Category I:— (1) The aurasa, body born, (2) the kshetraja, soil son, (3) the
dattaka, adopted, (4) the kritrima, appointed, (5) the gudhot-
panna, secretly born, and (6) the apavindha, cast-off.
Category II:— (7) The kanina, maiden born, (8) the sahodhi received
alongwith the bride, (9) Krita, brought, (10) the
paunnarabhava, self-begotten on remarried women, (11) the
svayamadatta self-given, and (12) the Shaudra, son of a
Brahman by a sudra wife.
Page 3 of 8
Manu had omitted the putrikaputra, in early Hindu law, he was considered next to the aurasa son, and most of
the sages assign him that place.
Most of the above sons become obsolete in the post-smriti period. The aurasa, the putrikaputra and dattaka
remained. In the British period the putrikaputra also became obsolete, and there remained, only the natural
born son and the adopted son. Hindu law had never recognized legitimatization. It is submitted that the
recognition of so many secondary sons was something akin to the process of legitimatization. All the secondary
sons were the sons of the man only if he recognized them.
During the Raj only two sons remained in vogue: the aurasa son and the dattaka son. However, under
customary law certain types of sons were also recognized.
3. Customary Adoptions
Under custom, various types of adoptions have been recognized of which mention may be made of Kritrima son
of Mithila, appointment of an heir of Punjab, Khana-damad of Punjab, and Dwamushyayana son.
4. Kritrima Son
Under the Mithila school of Hindu law, Kritrima form of adoption has prevailed. The Kritrima form of adoption
was essentially a contractual arrangement between the adopted and adoptee. It was necessary that both
should be adults, and there was no upper age limit of the adoptee.1 Any Hindu, male or female, could adopt in
this form. A woman could adopt a Kritrima son to herself, which she was permitted in no other school of Hindu
law; she could adopt during the life time of the husband or after his death. Husband and wife could jointly adopt
a son or each could adopt a son to himself or herself separately.2 A child adopted by a man was not the
adopted child of his wife; converse was also true. It was necessary that the child to be adopted must be of the
same caste as of the adopter. No ceremonies were necessary for the adoption. No set form was required. The
consent of both the parties was the only requirement.3 A Kritrima son does not lose his claim to his own family,
nor assume the surname of his adoptive father, he merely performs obsequies and takes the inheritance. He
does not lose any right of inheritance in his natural family, and, in a sense he becomes the son of two fathers:
he takes the inheritance of his adoptive father as well as of his natural father. But he does not inherit his
adoptive father’s father or other collateral relations, nor the wife of his adoptive father or her relations.4 Nor do
his sons or other heirs take any interest in the property of the adoptive father.5 It is because the relationship
between the adoptee and the adopter is limited to the contracting parties.
The Kritrima son stands abrogated after the coming into force of the Act.
5. Appointment of heir
The institution of appointment of an heir under the Punjab customary law came into existence with the limited
objective in view, viz., to provide a successor to the property of the appointer. It merely creates a personal
relationship between the appointed heir and the appointer; there is no transplantation of the appointed heir from
his natural family to the family of the appointer, and the appointment affects only the parties thereto.1 In the
sense in which the adopted son becomes the member of his adoptive family, the appointed heir does not
become the member of the appointer.2 No relationship of the appointed heir comes into being with the
ascendants or collaterals of the appointer.3 This implies that he has no right of collateral succession;4 nor is he
a lineal descendant of the appointer for purposes of succession.5 The appointed heir also does not cease to be
the member of his natural family.6 He retains the right of collateral succession in his natural family.7 In Abdul
Rehman v. Raghubir Singh,8 the court observed:
A customary adoption in the Punjab is ordinarily no more than a mere appointment of an heir creating only a personal
relationship between the adopter and the adoptee. By such adoption the adoptee does not become the grandson of the
adopter.
The question whether the customary institution of appointed heir has been abrogated by the Hindu Adoptions
and Maintenance Act, 1956 came up before the Supreme Court in Kartar Singh v. Surjan Singh.9On the
question of fact the Supreme Court found that the adoption in question was a “formal adoption” and not
“informal adoption” (as the customary appointment of heir is called), and therefore the adoptee had all the rights
of an adopted son. But the Supreme Court went further and observed that even if the appellant was merely an
appointee, it would not have likewise denied to him the right to the property, because, in view of section 4(a),
Hindu Adoptions and Maintenance Act, 1956, “The question of any customary adoption, as was in force in
Punjab before the Act came into force, does not, any longer, arise.”10 The court further opined that the
Page 4 of 8
expression “any customary adoption” specifically included the custom of appointing an heir “which prevailed
before 1956, has been abolished by the Hindu Adoptions and Maintenance Act”.1 Section 4(a) lays down that
“save as otherwise provided in this Act, 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 the Act shall cease to have effect with
respect to any matter for which provision is made in this Act.”1
It is submitted that the conclusion to which Supreme Court reached on the basis of section 4(a) is founded on
the assumption that appointment of heir is under a custom which is part of Hindu law. It seems that the court
was led into the assumption because all along—right from the decisions of the Punjab Chief Court to the
decisions of the Supreme Court—the term “informal adoption” has been employed for the appointed heir, and
more often than not, the appointed heir has been called “adopted son.” If “informal adoption” is also an
adoption, their Lordships of the Supreme Court were right in their conclusion. But, in our submission, the
resemblance between the Hindu institution of adoption and customary institution of appointed heir is
superfluous—they resemble each other only to the extent that both grew out of the need of the sonless person.
But beyond this there is no resemblance. Further, the Punjab customary law and the customary appointment of
heir has never been part of Hindu law, rather they have existed independently of Hindu law, and, historically,
were much anterior to Hindu law. Thus, if appointed, heir is not equivalent to adopted son, and the custom
under which he has existed is not part of Hindu law, their Lordships were obviously wrong in reaching the
conclusion that the appointed heir stand abrogated by the Hindu Adoptions and Maintenance Act, 1956.2
Virendra Kumar rightly observes:
The appointment of an heir is a rustic institution. It is a simple and expedient method to serve the needs of
predominantly agricultural communities irrespective of their caste or religion. Adoption, in the strict sense, as it is
understood in the domain of Hindu law, is rarely, if ever, met with amongst purely agricultural tribes....
Why should the institution of appointment of heir, which emanated from the real life itself, be replaced by the
formal adoption, a concept which is idealistic in nature? The customary institution has a respectable ancestory.
It has been acted upon for such a long time and with such invariability as to show that it has, by common
consent, been submitted to as the established governing rule.3
6. Khana-damad or Ghar-jawai (Resident Son-in-law)
The institution came into existence in those communities which were not closely knit communities. The
institution is essentially of Muslim origin. Probably, for the first time, it came into existence among the gujar
Muslims.4 The institution existed in the Western Punjab; it was rare in the Eastern Punjab. From the Muslim
tribes this custom was adopted by some non-Muslim tribes. In the words of Sir Charles Roe,.........even the
practice of taking a son-in-law and his wife into the house is not nearly so common as is generally supposed. In
many districts it is said to be altogether unknown. Where the practice does exist, the benefit to be derived from
it is, no doubt, regarded by custom as one to the daughter’s sons and not to their father personally. But by
custom mere residence in the father’s house confers no rights on the daughter, her husband or her children; it
merely, in some districts or tribes, allows greater freedom of gift or adoption in such cases. It is expressly stated
in all the riwaj-i-ams that without a distinct gift, or adoption, or proclamation of appointment as heir, no right of
succession is conferred by residence.1
Nature of the institution of khana-damad.—The khana-damad, or ghar-jawai, or resident son-in-law “is a

man who married the daughter of a sonless proprietor and, instead of taking the girl away to his own house,
lives on with her in her father’s house, performing services for him, helping to manage his property, and
generally taking up to position of a son.”2 This oft-quoted observation of Robertson, J. which graphically
portrays the nature of the institution of khana-damad, is juridically misleading. It is true that the sonlessness of
the proprietor supplies the motive to have a son-in-law to reside in the house and that the resident son-in-law
helps him like a son, but he does not take the position of a son. Probably, the following statement by Ellis
explains the nature of the institution of ghar-jawai correctly:
The khana-damad is an institution whereby a sonless man associates with him in his lifetime his son-in-law, who
resides with him, cultivates for him, and eventually succeeds to him for a life-interest, acting as a means of transmitting
the estate to the original proprietor’s daughter’s son.3
This statement needs modification to the extent that not in all tribes the resident son-in-law takes a life estate.
In most tribes it is the son-in-law’s son (the one begotten on the father-in-law’s daughter) who succeeds to the
father-in-law’s property even when his father (i.e., son-in-law) is alive. Plowden, SJ puts in succinctly and neatly
thus:
Page 5 of 8
The purpose of the institution of resident son-in-law is to benefit the daughter’s son and the daughter and her husband
only benefit incidentally.4
The essential feature of the institution of khana-damad is that in default of male issue, a proprietor may take his
daughter and her husband to live with him in order to supply the want of a male issue,5 and after the death of
the proprietor it is the daughter’s son and not the son-in-law, who succeeds to the property.
The khana-damad should not be likened with the adopted son or appointed heir. He is neither. Had he been
one he would have succeeded to whole of the estate of the sonless proprietor and his son by any wife (not
necessarily the son begotten on the daughter of proprietor) would have succeeded to him after his death. But it
is an essential feature of the institution of khana-damad that it is not the resident son-in-law or any son of his
who succeeds to the estate of his father-in-law but only the son begotten by him on his father-in-law’s daughter.
The son-in-law thus acts as a conduit. It is a different matter that by virtue of his appointment as resident son-
in-law, he and his wife derive some benefit. The only resemblance between him and the appointed heir is that
both owe their position on account of their appointment by a sonless proprietor. Beyond this there is no affinity
between the two. Similarly, the khana-damad and the adopted son are brought into being by sonless person,
but the latter assumes the position and status of a natural born son, while the former is brought in the house
with the sole objective that he would procreate an heir on the daughter of the appointer, if he succeeds, the
estate goes to the daughter’s son, if he does not, in some tribes the son-in-law is allowed a life estate for his
services that he renders to his father-in-law. But in no tribe or community he acquires a status of a son or an
appointed heir.
Since khana-damad cannot be in any sense likened to an adopted son, the question of his abrogation by the
Act does not arise. The khana-damad is merely a medium by which the son born to the daughter of proprietor
to whom he is married succeeds to the property of the proprietor. However, son of the khana-damad is not an
heir under the Hindu Succession Act.
7. Dwyamushyayana Son
Dwyamushyayana son or son of two fathers has been recognized under custom. When a person is adopted
with an express or an implied understanding that he would be the son of both fathers, his natural father as well
as his adoptive father, such a son is known as dwyamushyayana son. Such adoption takes place under an
agreement that he would be continued to be the son of his natural father and he would also become the son of
his adoptive father. Such an adoption has prevailed in the East Coast1 and among the Nambudri Brahmans of
West Coast.2 This form of adoption has also been recognized in Bombay, Uttar Pradesh and probably also in
Bengal.3 It appears that an express agreement to that effect is essential between the two fathers. At one time it
was believed that such an adoption takes place between the brothers, but it is recognized among others also.
Originally, such adoptions took place in cases where between two brothers, there was only one son and both
agreed that he would be son of both. But it appears that widows of two brothers can also make an adoption in
this form.
It is clear that this type of adoption stands abrogated by the Act.4

8. Clause (a) Text, Rule or Interpretation of Hindu law
Clause (a) abrogates “texts” of Hindu law. The texts of Hindu law will include “the Srutis, Smritis (Dharmasutras
and Dharmashastras), commentaries and Digests. The term “rule” will include all textual and non-textual rules
of Hindu law. The latter will include rules of Hindu law as laid down by the courts. The term “interpretation” will
include all those rules which have been laid down by the process of interpretation of textual and non-textual
Hindu law.
Clause (a) custom or usage.—Jurisprudentially there exists a distinction between usage and custom.1 But
clause (a) does not preserve the distinction between custom and usage and treats both at par. An act or
conduct would be a usage or custom if it has been continuously and uniformly observed for a long time, thereby
obtaining force of law (we have already discussed all aspects of custom in our commentary of section 3).
The Hindu Adoptions and Maintenance Act abrogates all pre-Act customs and usage pertaining to adoption.
In Amin Chand v. Sukhbir Singh, AIR 2009 P&H 24, the Punjab and Haryana High Court held that in matters of
adoption, the provisions of the Hindu Adoptions and Maintenance Act, 1956 shall have overriding effect and
shall prevail over the custom. Therefore, a custom barring Jats from making adoption, being inconsistent with
Page 6 of 8
the provisions of the Act, cannot prevail in view of overriding effect of the Act. Custom is preserved only in two
areas:
A. A married child can be adopted if custom permits such an adoption, and

B. A child of fifteen or above can be adopted if custom permits such an adoption.
In a series of cases culminating with the Full Bench decision in Anirudh Jagdeorao v. Babarao Irbaji,2 the
question has come before the Bombay High Court whether the rule prevailing in the Bombay School that a
married child and a child of fifteen or above can be adopted is a rule of custom or rule of text of the Bombay
School, i.e., of the Vyavahara Mayukha, the commentary which is the prevailing authority of the Bombay
School. This has to be understood in the context of clauses (iii) and (iv) of section 10 of the Hindu Adoptions
and Maintenance Act which saves the custom in regard to age and marital status of the adoptive child. If
custom permits such adoptions, such adoption would obviously be valid under these clauses. But if the matter
is not governed by custom or by a “text” of Hindu law, then such adoptions would not be valid, as, all texts of
Hindu law stand abrogated by clause (a) of section 4. The controversy, thus, revolves round the view whether
adoption of a married child or child of fifteen years or above is part of custom or part of textual law, i.e.,
Vyavahara Mayukha. It is a well-settled proposition of the Bombay School that custom permitted such
adoptions, and the Vyavahara Mayukha incorporated it in its text. Thus the subtle argument addressed to the
Bombay High Court is that on the incorporation of these customary rules into text, there have ceased to be
rules of custom and have become part of textual law, within the meaning of clause (a) of section 4 of the Act.
On the other hand, it is argued that merely because a work like Vyavahara Mayukha has accorded recognition
to widely prevalent customs or usages, it would not take them away from the category of customs or usages.
The controversy in the Bombay High Court revolved round these two arguments.
Haribai v. Baba Anna,3 represents the latter view. The Division Bench adverting to the meaning of the word
“custom” in section 3(a) of the Act observed that the definition did not give importance to any particular custom
or usage as opposed to the Dharmashastra text, but to any rule which having been continuously and uniformly
observed for a long time, had obtained the force of law among Hindus in any local area, tribe, community group
or family. It did not speak of any rule not based on any text or based on custom. It might be a rule having its
genesis in a text or in a decision of the court. The court then said:
The definition in a way gives effect to the well known legal maxim ‘Via Trita Via Tuta’. (The beaten way is the safe
way). The definition which Malvankar, J. with great respect appears to have assumed to apply made distinction
between a rule founded on custom and a rule founded on Vyavahar Mayukha or other Hindu Dharma Shastras or the
text. Such a distinction is not germane to the definition of the word ‘custom’ in section 3(a). All that is required for
purpose of that definition is that a rule must have been continuously and uniformly observed for a long time, and it must
have obtained the force of a law among Hindus. Whether it was based on a book of Dharma Shastras like Vyavahar
Mayukha or any other text was irrelevant to the definition of ‘custom’ under the Act.
The Full Bench has approved this view and has expressly overruled the view expressed by Bhimarao Vithu
Khandagale v. Chandrra Savala Khandagale,1Laxman Ganpati Khot v. Anndyabai,2 and Bal Krishna
Raghunath Gharat v. Sadashiv Hiru Gharat.3 Earlier also in some cases the view was expressed that the
adoption of a married person and of person of fifteen years or above was valid being the custom expressly
saved by clauses (iii) and (iv) of section 10 of the Act.4
In Alturi Brahmanandam v. Anne Sai Bapuji, AIR 2008 AP 235 [LNIND 2008 AP 330], the Andhra Pradesh
High Court held that the Judgment in Hanumantha Rao v. Hanumayya, 1964 (1) Andh WR 156, conclusively
proves that there is a custom among members of Kamma caste for adopting a person who is above fifteen
years of age. The Privy Council in the case of Raja of Pittapur, AIR 1918 PC 81, observed that when a custom
is brought to the notice of Courts in the country, the courts may hold that custom exists without necessary proof
in each individual case. In view of the above, the custom among members of Kamma caste in Andhra Pradesh
for adopting a person over and above fifteen years of age need not be proved again in this case and on that
ground presumption under Section 16 of the Act cannot be ignored. This case has been reiterated by the
Supreme Court also.5
9. Matters not covered under the Act
If any rule of Hindu law of adoption is not covered by any provision of the Act, it will, obviously, be still
enforceable. This is made clear by section 4. Clause (a) lays down that any rule, etc., of Hindu law covered by
the Act shall cease to have effect, and if a matter is not covered by the Act, it will not cease to have effect.6
Page 7 of 8
10. Vested rights
It is a well-established rule of interpretation that rights, that accrued before the coming into force of a statute
can be enforced even after the coming into force of the statute.1
Under customary law a form of adoption, known as Guda-datta was recognized among Vallabhakulas. The
custom also recognized that such an adoption could be revoked and annulled at the instance of adopter or
adoptee. The question is: whether such adoptions made before the coming into force of the Act could be
revoked after coming into force of the Act? The question came for consideration before the Supreme Court in
Daniraiji Vrajlal Ji v. Maharaj Shri Chandraprabha.2 The court held that such an adoption could be cancelled
and section 15 of the Act which prohibits cancellation of the adoption could be cancelled and section 15 of the
Act which prohibits cancellation of the adoption would not apply to such adoptions. Section 15 will apply to
adoptions made after the coming into force of the Act.3 In the words of Bhagwati, J.:
It is the first part of the section which enacts the main saving provision and the second part is merely a provision
introduced ex abundanti cautela with a view to emphasising that the validity and effect of an adoption made before the
commencement of the Act shall remain untouched by the provisions contained in the Act and be determined as if the
Act had not been passed. It would not be legitimate to cut down the width and amplitude of the first part of the section
by reference to the second part. It is clear from the plain and unambiguous language of the first part of the section that
the legislature intended to exclude the applicability of all provisions contained in the Act to an adoption made before
the commencement of the Act and not merely the applicability of those provisions which affect the validity and effect of
such adoption.
1 Manu, V. 138.
2 Baudhayana, 2.16-6. See also Manu, IX 137-138; Vishnu XV, 44, 46; Yajnavalkya, 1, 78.
1 Manu, IX. 180.
2 Manu, IX. 16.
3 Hindu Law and Usage, 11th Edn., p. 116.
1 Luchman v. Mohun, 16 WR 179. But see Lalita Prasad v. Sarnam, AIR 1933 Pat 165 for the Contrary view. But this
does not lay down good law.
2 Sree Narain v. Bhya Jha, 2 SD 23; Shibo Koree v. Jugan, 2 WR 155.
3 The Mitakshara quoting Rudhradhara laid the form thus: The adopter says to the adoptee, “Be my son”, and he says, “I
am become the son”: 1, xi, 17.
4 Deepo v. Gowreeshunkar, 3 SD 307; Shivo Koree v. Jugan, 8 WR 155.
5 Jaswant v. Doolee, 25 WR 255.
1 Kehar Singh v. Dewan Singh, AIR 1966 SC 1555 [LNIND 1966 SC 28]; Gurnam Singh v. Asha Kaur, AIR 1977 P&H
103 ; Mela Singh v. Gurdas, AIR 1922 Lah 433 ; Basant Singh v. Brij Raj, ILR (1935) 57 All 494 (PC); Hira Singh v.
Hardat Singh, (1922) 68 IC 763.
2 Kartar Singh v. Surjan Singh, AIR 1974 SC 2161 [LNIND 1974 SC 237].
3 Abdul Rehman v. Raghbir Singh, 1949 PLR 119.
4 Kehar Singh v. Dewan Singh, AIR 1966 SC 1555 [LNIND 1966 SC 28]; Jawala Singh v. Lachhmi, 14 PR 1884 (Gee
Jats of Tehsil Ajnala); Mangal Singh v. Tilak Singh, 61 PR 1899 (Sohel Jats of Ajnala); Chittu v. Jawand Singh, 107 PR
1913 (Sikh Jats of Tarn Taran).
5 Indar Singh v. Gurdevi, AIR 1930 Lah 897 .
Page 8 of 8
6 Kartar Singh v. Surjan Singh, cited above.

7 Kehar Singh v. Dewan Singh, citer above: Jagat Singh v. Ishwar Singh, ILR (1930) 11 Lah 615 .
8 1949 PLR 119.
9 AIR 1974 SC 2161 [LNIND 1974 SC 237].
10 AIR 1974 SC 2161 [LNIND 1974 SC 237](2163). Emphasis author’s.
1 Emphasis author’s.
2 See Virendra Kumar, Customary Appointment of an Heir, (1976) 18 JILI 278 (295).
3 See Virendra Kumar, Customary Appointment of an Heir, (1976) 18 JILI 278 (295-296).
4 See Fateh Alam v. Ghulam Sarwar, AIR 1933 Lah 187 .
1 Tribal Law in the Punjab, 52.
2 Nabia v. Fatta, 2 PR 1901.
3 Ellis, Punjab Custom, (1921), 90.
4 Ghulam Bhikh v. Massamia, 22 PR 1893.
5 Lado v. Nabi Baksh, 6 PR 1900.
1 Mayakha, IV, 5, 22; Dattaka Mimamasa VI, 34-36.
2 Vasudevan v. Secretary of State, ILR (1888) 11 Mad 157 .
3 Nilamadhab Dass v. Bishumber Dass, (1869) 13 MIA 85.
4 Narayanappa v. Government of A.P., (1978) APLJ 60 (illatom adoption stood abrogated).
1 “Usage” represents the twilight stage of custom. Custom begins where usage ends. Usage is a habit of action that has
not yet received full legal attestation. Usage may be conflicting, while custom must be unified and self-consistent.
2 AIR 1983 Bom 391 .
3 AIR 1977 Bom 289 [LNIND 1976 BOM 126].
1 Unreported. Discussed by the Full Bench in AIR 1983 Bom 391 .
2 AIR 1976 Bom 264 [LNIND 1975 BOM 118].
3 AIR 1977 Bom 412 [LNIND 1976 BOM 272].
4 Dattalroya Bapu v. Anubai Bapu, (unreported); Housebai v. Jijabai, AIR 1972 Bom 98 [LNIND 1970 BOM 71].
5 Alturi Brahamanand v. Sai Bapuji, AIR 2011 SC 545 [LNINDORD 2010 SC 193].
6 Laxmi v. Krishna, AIR 1968 Mys 288 (the case relates to pre-Act provision of arrears of maintenance).
1 Ramabai v. Meerabai, AIR 1917 MP 86 (Preexisting right of maintenance is not abrogated by the Act); Amireddy Raja
Gopala Rao v. Amireddi Sitheramamma, AIR 1965 SC 1970 [LNIND 1965 SC 46](Pre-existing right of maintenance of
an illegitimate child born from a concubine are still enforceable if the father had died before coming into force of the
Act).
2 AIR 1975 SC 784 [LNIND 1974 SC 415].
3 Mathew and Untawalia, JJ. took a contrary view.
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
5. Adoptions to be regulated by this Chapter.—
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance
with the provisions contained in this Chapter, and any adoption made in contravention of the said
provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person
which he or she could not have acquired except by reason of the adoption, nor destroy the rights of
any person in the family of his or her birth.
Comments
1. Scope
Section 5 in a sense is a corollary to section 4. Section 4 gives overriding effect to the Act over the pre-Act
Hindu law, and lays down that all texts, rules and interpretations of Hindu law of adoption made before the
coming into force of the Act or any custom or usage existing and recognized as part of that law and any other
law in force immediately before the commencement of the Act stand abrogated. This section lays down that
after the coming into force of the Hindu Adoptions and Maintenance Act all adoptions among the Hindus will be
regulated by the Act.
Sub-section (1) propounds two propositions, one in positive language and the other in negative. The two
propositions are:
(a) All adoptions made by a Hindu or to a Hindu must be in conformity with the provisions of the Act.
(b) Any adoption made in contravention of the provisions of the Act shall be void.
Sub-section (2) is a corollary to the two propositions laid down in sub-section (1). If an adoption is void, it will
not affect the position of any party to the transaction of adoption. The child whose adoption is void would not
Page 2 of 4
lose his rights in the natural family nor will he or she get any right in the adoptive family. Nor will any rights of
the adopter or the person giving in adoption be affected.
2. Sub-section (1): Adoptions to be Regulated by the Act
Sections 6 to 17 contain provisions as to adoptions. This group of sections lay down:
(a) who can adopt,

(b) who can give in adoption,
(c) who can be adopted,
(d) ceremonies or formalities of adoption,
(e) certain other conditions of adoption, and
(f) consequences of adoption.
An adoption to be valid must conform to conditions laid down in sections 6 to 16. If an adoption does not
conform to these requirements it will be void. Adoption under any other law will not be valid, unless it is saved in
terms of section 4.
3. Adoption “by a Hindu” and “to a Hindu”
Sub-section (1) says that adoption may be made by a Hindu or to a Hindu. The expression “by a Hindu”
obviously has a reference to the adopter, i.e., the person who makes an adoption. Adoption “to a Hindu” is, it
seems a hang-over of the old Hindu law whereunder an adoption made by a Hindu widow, was always an
adoption made to her husband, since she was not allowed to make an adoption to herself. It was this hang-over
which led Bhargava, J. of the Supreme Court in Sawan Ram v. Kalawati,1 to think that the Act stipulated two
types of adoptions: (i) adoption by a Hindu, and (ii) adoption to a Hindu. The learned Judge felt that an adoption
by a Hindu female, whose husband is dead, has finally renounced the world, has been judicially declared to be
of unsound mind, or has ceased to be a Hindu is the type of adoption which fell into the latter category, and
thus the doctrine of relating back was recreated and it was held that adoption made by a widow was in fact an
adoption made to her husband. In our submission this is not the import of these words. Under Hindu law
performance of ceremony of adoption can be delegated to someone else, particularly, where the adopter is an
aged, infirm or sick person. Thus when such a person adopts a child, the child is adopted to him, though
ceremonies of adoption are performed by someone else. When an adopter himself or herself performs the
ceremonies of adoption, then adoption is by him or her to himself or herself. It is only in the former sense that
adoption can be “to a Hindu”. In no other sense an adoption can be made by a person to another person. When
a Hindu male adopts a child with the consent of his wife he adopts the child to himself and adoption is made by
him. By virtue of the fact that the adoption has been made by a male Hindu, his wife also becomes the adoptive
mother but thereby, we cannot say that adoption has been made “to her”. She becomes the adoptive mother by
operation of law.2
4. Sub-section (1): Adoptions in Contravention of Part II of the Act are Void
The first part of sub-section (1) lays down that all adoptions after the commencement of the Act must be in
conformity to the provisions of the Act, and the second part of the sub-section lays down that adoptions made in
contravention of the provisions of that Act are void. It leaves no scope for any doubt, and the doctrine of factum
valet is not applicable to adoption. No lacunae or deficiency in any adoption can be cured by the application of
the doctrine of factum valet.
Adoptions made before the coming into force of the Act would obviously be governed by the pre-Act Hindu law
of adoption.
5. Sub-section (2): Consequences of a Void Adoption
It is a well established proposition of law that no consequences ensue a void transaction. A void transaction
does not affect the respective position or status of the parties. Sub-section (2) by way of abundant caution
reiterates this proposition. It lays down:
A. A void adoption does not create any right or relationship in the adoptive family.
B. A void adoption does not lead to the destruction of any right or relationship existing before the
adoption.
Page 3 of 4
It appears that Parliament thought it advisable to reaffirm the law, since adoption creates far-reaching
consequences. An adopted child is transplanted in the adoptive family creating all rights and relationship as if
the child was natural born child.1 On the other hand, all ties, rights and relationship (except the blood ties for
the purpose of marriage)2 cease in the natural family.1 A void adoption does not create any of these situations
and rights.
6. Pre-Act Adoptions are not Affected by the Act
The Hindu Adoptions and Maintenance Act does not apply to any aspect of adoptions made before the
commencement of the Act and the pre-Act Hindu law of Adoption will continue to be applicable to such
adoptions.3
7. Adoption as a Sacramental or Secular Act
Under the old Hindu law predominant view was that the adoption is a sacramental act, though there has been a
controversy not only among writers, but also among Judges whether in adoption the secular motive
predominates or the religious motive predominates.4 Some Judges still insist that the object of adoption is two-
fold: to secure performance to one’s funeral rites and to preserve the continuance of one’s lineage.5 Under the
old Hindu law, there were many rules relating to adoption which could be supported only on the basis that
adoption was a sacramental act. For instance, the following rules could be supported only on this basis: the
adopted son must be a reflection of a son (saunaka): This prevented the adoption of orphans and illegitimate
children; a daughter could not be adopted; no one could have more than one adopted son; one could not adopt
a child whose mother one could not marry when she was a maiden: thus a daughter’s son or sister’s son could
not be adopted as one could not marry one’s sister or daughter. The same seems to be the reason for the rule
that when a widow adopted a son it was always deemed to have meant adoption to her deceased husband.
The principle is responsible for the doctrine of “relating back”.6 (The doctrine of relating back may be illustrated
by an example, say, when a widow, whose husband died, on 1-1-1930, adopted a son on 1-1-1940, the
adoption was deemed to have taken place on 1-1-1930. The fiction was necessary so that it could be said that
the Hindu did not die sonless). It is needless to say that, apart from the religious motives, secular motives were
also important, such as a man’s desire for the celebration of his name, for the perpetuation of his lineage, for
providing security in the old age and for dying in satisfaction that one has left an heir to one’s property. Which of
the motives, religious or secular, were more important or dominant need not detain us here. One thing is certain
that different people adopt with different motives, sometimes the motive may be baseless, just as one may
adopt to despise a prospective heir who could take the property, in the absence of a son. Whatever it may be,
the main purpose of law of adoption is to provide consolation and relief to a childless person. In modern law its
purpose is also to rescue the helpless, the unwanted, the destitute or the orphan child and provide it with
parents and a home. Its purpose is also be to provide a richer family life. For instance, a person who has only a
son can adopt a daughter and vice versa. However, whatever be the motives, the court need not enquire into
them.1
In the present submission, the Hindu Adoptions and Maintenance Act, 1956 has steered off clearly from all the
religious and sacramental aspects of adoption and has made adoption a secular institution and secular act, so
much so that even a religious ceremony is not necessary for adoption. Under the Hindu Adoptions and
Maintenance Act, there cannot be two types of adoptions; one purely secular and the other sacramental. All
adoptions after 1956 are secular, and, to be valid, must conform to the requirement of the Act. It is a different
matter that a Hindu while exercising his right of adoptions may still adhere to old notions, such as he may still
not adopt a daughter’s son or sister’s son; he may still not adopt a daughter, but that should not detract us from
the essentially secular nature of adoption. On the other hand, a Brahman dispensing with his spiritual benefit
may adopt a Sudra’s son or may adopt a daughter or may adopt his own sister’s son or daughter’s son. If he
does so, the adoption is as valid as in the former case. Somehow such is the hang-over of the old notions that
even our Supreme Court could not extricate itself from them.2It is submitted that with whatever motive a person
may adopt, secular or sacramental, the act of adoption under the Hindu Adoptions and Maintenance Act, 1956,
is essentially a secular act.
However, secularization of adoption does not mean that the new law of adoption makes a total departure from
the old law. It was neither necessary nor desirable. But unfortunately what has happened is this: some aspects
of the old law which should have been rejected are still retained. Take two examples: (a) adoption is even now
a private act without any supervision by the State. No order of the court is necessary for an adoption except
when guardian gives the child in adoption, and (b) even now not more than one son and one daughter can be
adopted.
8. Nature of Adoption
Page 4 of 4
Adoption is one of those fictions of law which have been marshalled for furtherance of the individual interest.
The law of adoption enables a childless person to make somebody else’s child as his own. Hindus foresaw this
at the dawn of their civilization. Their ideal was not just to have a son but the adopted son must bear a
reflection of the natural son. With this refinement, it was natural for them to hold that for all intents and purpose
an adopted son was like a natural son. Such was the ideal that the adoption meant the removal of the child
from the natural family and his transplantation in the adoptive family, so much so that all his ties with the natural
family were severed (except that he could not marry any female in natural family whom he could not have
married, had he not been adopted) and all the ties in the adoptive family came into existence. He was not
merely related to the adoptive parents, but all relations on the paternal and maternal side in the adoptive family
also came into existence. This also meant that he could not marry the daughter of his adopted parent, whether
that daughter was natural born or adopted as she, by fiction of law, became his sister. This is also the position
under the modern law.1 In the modern Hindu law an adoption has the effect of transferring the adopter from his
natural family to that of his adopter’s, conferring on him thereby the legitimate natural born son’s rights and
privileges in the adopter’s family. On the other hand, the adopted child loses all rights and privileges of a natural
born child in the natural family. Under the old Hindu law a son adopted by his widow was deemed to be her
husband’s son and therefore, adoption related back to the date of the death of her husband. Under the Act,
adoption is effective from the date on which it is made, and the adopted child cannot divest any person of the
property vested in him before adoption. The child, too, cannot be divested of the property vested in him before
adoption.2
1 AIR 1967 SC 1761 [LNIND 1967 SC 153]; see also Anukush v. Janabai, AIR 1966 Bom 174 [LNIND 1965 BOM 26].
2 See section 14(1) of the Act. It may be interesting to note that when a person having more than one wife adopts with
the consent of all, only the seniormost wife becomes the adoptive mother, and the rest are designated as step-mothers.
1 Section 12.
2 Proviso (a) to section 12.
3 Kavulura v. Kutamukkala, (1971) Andh WR 134; M. Muttiab v. Controller of Estate Duty, AIR 1986 SC 1983 .
4 See Mayne, Hindu Law and Usage, 11th Edn., 184-88.
5 Inder Singh v. Kartar Singh, AIR 1966 Punj 258 .
6 Srinivas v. Narayan, AIR 1954 SC 379 [LNIND 1954 SC 52]; Naidu v. Naidu, AIR 1970 SC 1673 [LNIND 1969 SC
355]; Motilal v. Sardar Mal, AIR 1976 Raj 40 (all old cases have been reviewed).
1 Shripad v. Dattaram, AIR 1974 SC 878 [LNIND 1974 SC 85].
2 Sawan Ram v. Kalawati, AIR 1967 SC 1761 [LNIND 1967 SC 153].
1 Section 12(a) of the Act.
2 Clauses (b) and (c) of section 12.
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
6. Requisites of a valid adoption.—

No adoption shall be valid unless—
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Comments
1. Scope
Even if section 6 was not enacted in the Act, it would not have made any difference. What has been laid down
from section 7 to section 16 has been summarised in this section. This section in its four clauses lays down the
following:
(a) Adopter should have the capacity and the right to adopt.
(b) The person giving the child in adoption should have capacity to give the child in adoption.
(c) Adoptee or adopted child should have capacity to be given in adoption.
(d) Adoption should also comply with other conditions of adoption.
2. Clause (i): Capacity and Right of Adopter to Adopt
Clause (i), unlike clause (ii) lays down two conditions:
(a) Adopter should have capacity to adopt, and

(b) Adopter should have right to adopt.
Page 2 of 3
Sections 7 and 8 of the Act deal with capacity to adopt. In short, every Hindu, male or female, has capacity to
adopt if he or she is of sound mind and is not a minor.
In the case of a Hindu married male, he has no right to adopt except with the consent of his wife1 (and if more
than one wife, with the consent of all of them),2 unless exceptional circumstances exist where he may dispense
with the consent.3
A Hindu married female has no right to adopt during the life-time of her husband even with his consent. Right
accrues to her only if her husband is dead, or her marriage has been dissolved or he has completely and finally
renounced the world or has ceased to be a Hindu or has been adjudged as a person of unsound mind.4
Further, no Hindu, male or female, has a right to adopt a son if he or she has a Hindu son, son’s son, or son’s
son’s son (legitimate or illegitimate).5 Similarly, he or she has no right to adopt a female child if he or she has a
Hindu daughter or son’s daughter.6
3. Clause (ii): Capacity to Give the Adoption
Clause (ii) lays down that giver of the child should have the capacity to give the child. This is laid down in
section 9. So long as the father is alive he alone can give the child in adoption. But he cannot exercise this right
without the consent of the mother of the child.7 Adoption made in absence of mother would not be valid.8 After
the father, the mother has the capacity to give the child in adoption. She can give the child in adoption during
the life-time of the father if the father has ceased to be a Hindu, has renounced the world or has been
adjudicated as a person of unsound mind.7 After the mother, the guardian has capacity to give the child in
adoption.9 Guardian may also give a child in adoption during the life time of the parents, if the latter have
renounced the world or have been adjudicated as persons of unsound mind.9 It may be noted that conversion
of a parent to a non-Hindu faith does not give the guardian a right to give the child in adoption. But a guardian
has power to give an abandoned child in adoption.1 Guardian can also give an orphan child in adoption.1
4. Clause (iii): Capacity to be Adopted
Clause (iii) lays down that if a child lacks capacity to be adopted, his adoption will be void. As to who can be
legally taken in adoption is laid down in section 10 of the Act. Since it is a Hindu law of adoption, the child to be
adopted must be a Hindu.2 He or she should not be an already adopted child.3 He or she should be
unmarried4 and below the age of fifteen years.5 In the last two cases exception by virtue of custom is
recognized.6
In Rangappa v. Chnnamma, AIR 2008 Kant 47 [LNIND 2007 KANT 514], it was held that where the adoptive
father executed a registered settlement deed in favour of the plaintiff describing him as adopted son, there was
valid adoption and the plaintiff cased to be a coparcener of joint family of his natural parents on his adoption.
In Kumar Sursen v. State of Bihar, AIR 2008 Pat 24, it was held that under Hindu Adoption and Maintenance
Act, 1956, permits adoption by a Hindu of a Hindu child alone. Law does not recognize an adoption by a Hindu
of any person other than a Hindu. A Muslim child adopted by a Hindu can neither get caste certificate of his
adoptive parent not residential certificate.
5. Clause (iv): Other Conditions of Adoption
Apart from the requirement of capacity on the part of three parties in the transaction of adoption, the Act also
lays down some other conditions, compliance to which is mandatory. Thus, for instance, no adoption will be
valid if essential formalities or ceremonies of adoption are not complied with.7 In Chandan Bilasini v. Aftabuddin
Khan, AIR 2001 Gau 95 [LNIND 2000 GAU 45]; Aftabuddin Khan v. Amaresh Sarkar,8 the adoptive mother
was very old (84 years) and could not be brought for evidence in the court but since it was established on
record that the ceremony of giving and taking had taken place, the adoption was upheld. Some other conditions
are laid down in clauses (iii) and (iv) of section 11, viz., if adoption is made of a child of the opposite sex than
adopter should be senior to the adoptee by at least twenty-one years. Clause (v) prohibits adoption of the same
child by more than one person simultaneously. Obviously, this does not include husband and wife.
In Ukali Musmat v. Kishori Sahu, AIR 2008 Ori 138 [LNIND 2008 ORI 124], it was held that adopting divests
natural line of succession sand therefore, the burden of proving adoption lies upon the person claiming
adoption, particularly when he is the only son of his natural parents. Thus, where the plaintiff claiming adoption
did not plead anything as to the day, date or tithi of adoption and where the plaintiff is shown in public
record/voters list as son of natural father residing in the house of natural father, the adoption is not proved.
Page 3 of 3
1 First part of the proviso to section 7.

2 Explanation to section 7.
3 Second part of the proviso to section 7.
4 Section 8(c).
5 Section 11(i).
6 Section 11(ii).
7 Section 9(2).
8 Deen Dayal v. Sanjeev Kumar, AIR 2009 Raj 122 [LNIND 2009 RAJ 226].
9 Section 9(4).
1 Section 9(4).
2 Section 10(i).
3 Section 10(ii).
4 Section 10(iii).
5 Section 10(iv).
6 Latter part of clauses (iii) and (iv) of section 10.
7 Section 11(vi).
8 AIR 1996 SC 591 [LNIND 1995 SC 1141].
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
7. Capacity of a male Hindu to take in adoption.—

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in
adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.
Explanation.— If a person has more than one wife living at the time of adoption, the consent of all the wives is
necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the
preceding proviso.
Comments
1. Scope
This section deals, as the marginal title indicates, with the capacity of a Hindu male to make an adoption. The
section deals in its first paragraph with the capacity to adopt, and in its second with the right of adoption.
The tenor of the Act throughout is that it deals with the capacity as well of the right of adopter and adoptee and
the giver of the adoption. A valid transaction of adoption can take place only when the capacity and right co-
exist. In the absence of either, the adoption will not be valid.
This section deals with the capacity of a Hindu male to adopt and deals with some cases where the right to
make an adoption accrues.
2. Capacity to Adopt
There are two requirements of capacity. The adopter should be (a) major, and (b) should be of sound mind. Any
Hindu male who is of sound mind and is not a minor has the capacity to adopt.
3. Adopter must be Hindu
Page 2 of 5
The adopter must be a Hindu. A Hindu married under the Special Marriage Act does not cease to be a Hindu
and, therefore, he has the capacity to adopt. Even if his parents have married under the Special Marriage Act or
under any other law, if he remains a Hindu, he has the capacity to adopt.
4. Adult
A person becomes a major or adult on the completion of the age of eighteen years. Clause (c) of section 3
defines a minor as a person who has not completed the age of eighteen years. There is no maximum age of
adoption. The provision of the Indian Majority Act under which the age of majority in some cases extends to 21
years does not apply to adoptions.1
5. Of Sound Mind
Soundness of mind has not been defined by the Act. In our submission the expression should be given its
natural meaning. Section 12 of the Indian Contract Act defines it. According to that section: A person is said to
be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of
understanding it and of forming a rational judgment as to its effect upon his interests. The section adds, “A
person who is usually of unsound mind, but occasionally of sound mind, may make contract when he is of
sound mind”. “A person who is usually of sound mind, but occasionally of unsound mind, may not make a
contract when he is of unsound mind.”
In the context of capacity to adopt, this could be a good working exposition of soundness of mind. In Gopi v.
Madan,2 the Rajasthan High Court said that unsoundness of mind relates to a general condition of mind. No
adjudication of insanity by the Court is necessary. “Any condition of insanity, including epilepsy, idiocy and
lunacy will come under unsoundness of mind. Ordinarily, a person is presumed to be of sound mind, and one
who alleges that the adopter was not of sound mind at the time of adoption, must establish it.
It is obvious that an idiot or lunatic cannot adopt.3 In some old cases it has been held that adoption by a person
in a disturbed state of mind, arising out of serious illness was not valid.4 In Tayammaul v. Sabhachalia,5 it was
held that an adoption by a dying man who was continuously insensible, though occasionally roused to
consciousness but relapsing into a state of insensibility was not valid. The Privy Council said, “How is it
possible that a person in such a condition could be capable of any act requiring judgment and reflection.” But
an insane person can validly adopt during lucid intervals.6
6. Unmarried Person (Bachelor), Widower or Divorcee
A male Hindu if he is of sound mind and is not a minor has capacity to marry, irrespective of the fact whether he
is bachelor,7 widower,8 or divorcee.
As to adoption by a bachelor, there were two points of view. The Hindu sages recommended affiliation of a
secondary son only in case of failure of aurasa son (natural born son), and to seek a natural son one has to get
married and become a householder, and even then if failed to get a son he could take an adopted son. On this
view a bachelor could not adopt. The other view was that since the motive of adoption was secular, a man
capable of accepting property could also adopt even if he was a bachelor.1 But there was no express Shastric
authority prohibiting a bachelor from making an adoption, and an adoption by a bachelor was regarded as
valid.2 Our court also took the view that there was nothing in textual Hindu law prohibiting a bachelor from
adoption.3 He could make an adoption for securing his own and his ancestor’s funeral oblation.4
There was no controversy as to adoption by a widower. He was, in fact, under a duty to adopt. He must adopt
for the purpose of securing oblations for himself and his ancestors.5
Under the Act, a bachelor and a widower have the capacity to adopt.
7. Deaf, Dumb, Leper and Murderer
Under the old Hindu law, there as some controversy whether a deaf, dumb, blind or leper,6 or murderer7 could
make an adoption, as all these persons were disqualified from inheritance.
But under the modern Hindu law, deafness, dumbness, blindness, leprosy and lameness are not
disqualifications,8 and there seems to be no reason why such persons cannot make an adoption. In our
submission even a murderer can adopt, as disqualification for inheritance has no relevance to capacity to make
adoption.
8. Proviso and Explanation: Married Hindu Male and Consent of the Wife or Wives
Page 3 of 5
Under the old Hindu law, a Hindu male could make an adoption without the consent of his wife. Her protest or
dissent did not matter. Under the Act a married male Hindu cannot make an adoption without the consent of his
wife.9 A question arises as to what is meant by consent. Is it mere presence, silence or lack of protest? It
cannot be construed as consent. Consent should either be in writing or reflected by an affirmative/positive act
voluntarily and willingly done by her.10 If he has more than one wife consent of all the wives is needed. It is a
mandatory requirement of law, and an adoption made without the consent of the wife (wives, as the case may
be) is void. In Kashibai v. Parvatibai,1 since consent of the first wife was not taken adoption was held void. The
consent of the wife may be express or implied. Thus if the wife takes part in the performance of ceremonies of
adoption, her consent will be implied unless she pleads fraud, force or coercion. The requirement of consent of
all the wives relates to the pre-Hindu Marriage Act where polygamy was recognized. Where a man who has
married more than one wife before the coming into force of the Hindu Marriage Act, wants to adopt a child after
the coming into force of the Hindu Adoptions and Maintenance Act, then he must obtain the consent of all the
wives alive at the time of adoption. If a person takes more than one wife after the coming into force of the Hindu
Marriage Act, then consent of that wife alone will be necessary who is his lawfully wedded wife. Ordinarily, the
second woman whom he had married would not be lawfully wedded wife and thus her consent is not required.
But if his first marriage is void, the wife of the second marriage will be the lawfully wedded wife, unless second
marriage is also void.
One reason why the consent of the wife is insisted upon is that before introducing a stranger into the family, the
man should consult his wife. An adoption creates a very intimate relationship and the wife should not be
ignored. But old Hindu did not consider the consent of the wife as mandatory because of a inferior status
ascribed to her.2 T.P. Gopala Krishna is critical of the provision of the Act which makes consent of wife or wives
mandatory.3 He argues that if the reason for taking her consent is that the child also becomes the child of the
wife, then why is the consent of all wives necessary; consent of the senior most should be enough. Further, if
that be the reason then why dispense with the consent of the wife who has ceased to be a Hindu, as
conversion does not lead to automatic dissolution of marriage. She will remain his wife and will also become the
adoptive mother of the child.
If the wife is a minor, then also, under the section, her consent is mandatory. But is a minor wife capable of
giving consent? Under section 8, a minor Hindu female cannot adopt. But under the present section it is not
said that a minor wife in incapable of giving her consent. Raghuvachariar has another argument: Why would a
wife consent to an adoption, when it is likely to result in the deprivation of half of her inheritance and thus it may
happen that a man may not be able to adopt.4 In our submission, this is too far fetched and unrealistic
argument. The desire to have a child is so strong among human beings that when they fail to beget a child of
their own, they go in for adoption, and a woman desires it as much (sometimes more) as the man. A situation
where wife meticulously or unreasonably withholds her consent may arise where the wife is living separately
from her husband either under a separation agreement or under a decree of judicial separation or otherwise.
But then this is not a normal case. If a man has separated from his wife, he may have to live without a son, in
as much as he is living without a wife.
9. Second Clause of the Proviso: When Consent of the Wife may be Dispensed with
The consent of the wife may be dispensed with in any one of the following cases:
(a) If the wife has ceased to be a Hindu,

(b) If she has finally and completely renounced the world, or
(c) If she has been declared by a court of competent jurisdiction to be of unsound mind.
The dispensation of wife’s consent on account of her ceasing to be Hindu means that she has converted to
some non-Hindu faith, i.e., she has become a Muslim, Christian, Parsi or Jew. If she converts to any one of the
four religions of Hindus, she will remain a Hindu. Thus conversion of the wife to Sikhism, Jainism or Buddhism
would not make her cease to be a Hindu.
It may be emphasised that under which law the marriage took place is immaterial. If a Hindu couple is married
under the Special Marriage Act or under a foreign law, they nonetheless remain Hindu, and the consent of the
wife thus cannot be dispensed on the ground that she was not married under Hindu law.
The second case of dispensation of consent relates to the wife becoming a Yati or Sanyasini. That is the
meaning of the words, the complete and final renunciation of the world.
Page 4 of 5
Hindus recognize Sanyasa Ashrama as the last of the four ashramas into which the life of a Hindu is organised.
According to Hindu religion every Hindu is required to enter the last ashrama in his old age; entering into this
ashrama amounts to civil death. One of the ceremonies that is performed before one enters this ashrama is
one’s own funeral rites. The Sanyasi, gives up his name and assumes a new name; in other words, entering
into a Sanyasa Ashrama means not merely renunciation of the world and worldly things, but also renunciation
or rather an end of one’s worldly life led in Grihasth Ashrama or the life lead in the Vanprastha Ashrama.
Entering into the Sanyasa Ashrama in the old age is in accordance with Hindu religion. A person may enter into
a holy order even at the young age and it is not contrary to Hindu religion.
If a person enters into the holy order yet does not renounce the world, then he or she is not the person covered
under the present clause. Similarly, if a wife who had entered into the holy order by renouncing the world,
comes home and resumes cohabitation or after entering into the holy order she continues to cohabit with her
husband, then she is not the person who has completely and finally renounced the world and, therefore, her
consent cannot be dispensed with, howsoever degraded she may be in the eyes of religion and society.
It is further submitted that in some Hindu sects merely entering into holy orders does not amount to
renunciation of world. There are some Hindu sects where a person, after entering into holy orders, is permitted
to marry and lead the life of a grihasthi (householder). If adoption is made by such a person consent of his wife
would be necessary. Thus, when a Sikh becomes a granthi or a Hindu becomes a pujari in a temple he is not
required to renounce the world and can still lead the life of the householder. Thus he has not completely and
finally renounced the world though has entered the holy order. A person who inherits certain properties from his
guru, is not necessarily a person who had entered into holy orders.1
The third case of dispensation of consent is on the basis of insanity of the wife. An adjudication of insanity by a
Court of law is a pre-condition to the dispensation of wife’s consent, otherwise any husband who finds a wife
non-cooperative may declare her insane.
Wife living separately or leading the life of a prostitute.—The consent of a wife who is living separately or is
leading the life of the prostitute cannot be dispensed with.2
No new grounds or circumstances other than those mentioned in the Act can be added.3
10. Son or Daughter
The first para of the section lays down that male Hindu of sound mind and major may adopt “a son or
daughter”. The expressions “son and daughter” do not mean that he can adopt only either a son or daughter. It
means he may adopt a son or daughter. He may as well adopt a son and a daughter. But a Hindu cannot adopt
more than one son or more than one daughter. He can adopt only one son and one daughter.
But a son can be adopted only in the absence of a Hindu son, son’s son, son’s son’s son,4 and a daughter can
be adopted only in the absence of Hindu daughter or son’s daughter.5
In sum:
A. A Hindu male who is of sound mind, and not a minor can adopt a child (a son or a daughter as well as
a daughter and a son) with the consent of his wife, or wives where there are more than one wives, as
the case may be without such consent the adoption will be void.
B. The consent of wife can be dispensed with where she (a) has ceased to be a Hindu, (b) has finally and
completely renounced the world, or (c) has been adjudicated as a person of unsound mind.
A discrepancy was always felt that women, especially the married women, were not given a fair deal under the
Act. A married woman whose husband was alive could neither give the child in adoption nor take a child in
adoption even after obtaining consent of her husband. On the other hand a husband could do so. This always
came in the teeth of equality between the sexes. This amendment has finally done away with this inequality.

Page 5 of 5
1 Mandakini v. Adinath Dey, ILR 18 Cal 69.

2 AIR 1970 Raj 190 .
3 Sarkar, Hindu Law of Adoption, 260 (1916).
4 Ballub Kant v. Kestenpura, 6 Beng SR 219.
5 10 MIA 429.
6 Amanchi v. Amanchi, 33 IC 578.
7 Gopal v. Narayan, (1888) 12 Bom 329 (This was the position under the old Hindu law also).
8 Subramaniam v. Muthialar Chettiar, ILR 1945 Mad 638.
1 Sastri Sarkar, Law of Adoption, 168 (1916).
2 Durgadas v. Santosh Kumar, (1944) 48 CWN 472. A text of Jagannath lays down: “It should be here remarked that no
law is found expressing that a son shall not be adopted by one who has not contracted a marriage.”
3 N. Chand Vasekharudn v. N. Brahamina, 4 Mad HCR 207; Tulsiram v. Behari Lal, ILR 12 All 238; Durgadas v. Santosh
Kumar, AIR 1944 Cal 328 .
4 See W.H. Macnaughten, Principles and Precedent of Hindu Law, 175.
5 Nagappa v. Subbasastry, 2 Mad HCR 367; Subramaniam v. Muthialar Chettiar, ILR 1945 Mad 638. But for some
controversy, see Stranges’s Manual of Hindu law.
6 Ramabai v. Harnabai, 48 Bom 363 (cannot adopt); Sukumari v. Ananta, (1921) 28 Cal 108 (Sudra); Bhagaban v.
Raghunandan, 22 IA 94 (Virulent leprosy); Kayarobana Pathan v. Subbraya Thevsn, AIR 1916 Mad 470 ; Malji v.
Tarabai, AIR 1956 Bom 397 [LNIND 1956 BOM 5].
7 Veman Gururao v. Krishna Ji, 21 Bom ILR 425.
8 See section 27, Hindu Succession Act, 1956.
9 Siddrappa v. Gauravva, AIR 2004 Kant 230 [LNIND 2003 KANT 921]; Malati Roy Chowdhwy v. Suddindranath
Mazumdar, AIR 2007 Cal 4 [LNIND 2006 CAL 526].
10 Ghisalal v. Dhapubai, (2011) 2 SCC 298 [LNIND 2011 SC 50]: AIR 2011 SC 644 [LNIND 2011 SC 50].
1 JT 1995 (7) SC 48 [LNIND 1995 SC 956].
2 Dattaka Mimansa I, 22.
3 T.P. Gopala Krishna, the Hindu Adoptions and Maintenance Act, 2nd Edn., 25-26.
4 Hindu Law, 6th Edn., 302.
1 Govind v. Kuldeep, AIR 1971 Del 151 [LNIND 1970 DEL 60].
2 Bholoo Ram v. Ramlal, AIR 1989 MP 198 .
3 Siddrappa v. Gouravva, AIR 2001 Kant 230 .
4 Clause (i) of section 11.
5 Clause (ii) of section 11.
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
*[8. Capacity of a female Hindu to take in adoption.—

Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in
adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her
husband unless the husband 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.]
Comments
1. Scope
Under the Shastric law ordinarily a woman had no capacity to adopt. But the texts differed. A married woman
was not allowed to adopt. The text of Vasistha was the authority: “Let not a woman either give or receive a son
in adoption except with the consent of her Lord.”1 This text was diversely interpreted. It came to be established
that an unmarried woman could adopt and a widow could adopt only under certain circumstances. But the
modern Hindu law has made a fundamental departure. Now a woman has capacity to adopt though a married
woman’s capacity is limited. This section deals with the Hindu female’s capacity to adopt and right to make an
adoption. Interestingly the section has been divided in three clauses, while this exercise was not done by the
draftsman in the case of section 7 (which they could have done profitably).
2. Capacity of a Hindu Female
The Act makes a fundamental departure from the old law by empowering a Hindu female, though not a married
woman,2 to adopt to herself in her own right. Under the old Hindu law a female had no capacity to make an
adoption to herself, though a widow under certain circumstances, could adopt a son to her deceased husband.3
Since such an adoption was by her, and not to her, she was not the adoptive mother in her own right. She was
the adoptive mother being the wife of her deceased husband to whom adoption was made.
Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu unmarried woman, widow or divorcee, has a
capacity to adopt. An unchaste woman (unmarried or widow) also has a capacity to adopt. The requirements of
capacity of a Hindu female to adopt are identical with the capacity of a Hindu male. A Hindu female of (a) sound
Page 2 of 4
mind, and (b) a major can make an adoption. Reference may be made to paragraphs 2, 3 and 4 of our
commentary on section 7.
3. Unmarried (Virgin), Widow or Divorcee
One view under the old law was that a woman who had neither a father nor husband, nor son had capacity to
adopt. But the texts were not clear and predominant authority was against such adoption. But under the modern
Hindu law an unmarried woman has full right to adopt. Thus, an unmarried Hindu female having capacity to
adopt can adopt a son or a daughter or son and a daughter. But if she has an illegitimate son or daughter then
she cannot make an adoption. The same is the position of widow or divorcee. In case a widow adopts a child
she need not take consent of the junior widow.1
But a problem in the case of an adoption by an unmarried woman can arise in some circumstances. Suppose
an unmarried woman adopts a son and then marries. The question will be, can her husband make an adoption
of a son, obviously the son adopted by her before marriage cannot be called her husband’s son. Thus, her
husband can make an adoption but with the consent of his wife. When she consents to an adoption this child
will also be an adopted son to her. Such an adoption is obviously valid, and cannot be said to be invalid
because of the existence of wife’s adopted son. The anomalous situation will be that she will have two adopted
sons, one adopted by her to herself and one adopted by her husband with her consent and therefore became
her son also, though in the case of his wife’s son he would be no more than a step-son to her husband.
4. Adoption by a Wife of Void Marriage
A wife of void marriage is no wife and hence independently of her husband, she has the right to make an
adoption, and she can do so irrespective of dissent or protest from her husband. It is because a husband-wife
relationship does not exist between the two. This is irrespective of the fact whether the marriage is or is not
declared null and void. However, if there is son of the marriage, she cannot make an adoption of a son, though
she may adopt a daughter. The fact of the matter is that her position is almost identical with that of the
unmarried woman.
However, if the marriage is only voidable, then she is married woman for all intents and purposes till her
marriage is annulled. Her position is thus identical with a married woman.
5. Adoption after Remarriage
Remarried woman’s husband can make an adoption with her consent irrespective of the fact whether she had a
natural born son from her former husband. Adoption can be made by her husband even if she had an adopted
son prior to her second marriage, irrespective of the fact that she adopted such a son after she became a
widow or divorcee or such a son was adopted by her former husband with her consent. In such a case
anomalous situation arises: She will have two sons, one natural born and the other adopted, in the former
situation and two sons in the latter situation. In some pre-Act cases, a view was expressed that a widow could
give a son by her former husband to the new husband. This meant that through the agency of her second
husband, she could make an adoption of her own son from a former husband, and after the coming into force of
the Act, this seems to be still possible. Similarly, if she is a divorced wife, then also her former husband with her
consent can give the child in adoption to her second husband. In both these situations, she becomes the
adoptive mother of her own child.
6. Married woman
A married woman whose husband is alive has no right to make an adoption even with consent of her husband.
Now, of course, after the Amendment Act of 2010 a wife can also adopt after obtaining consent of her husband.
In Brajendra Singh v. State of Madhya Pradesh,1 it has been held that the husband’s consent cannot provide or
bestow capacity on a married woman to adopt a child. Even if a woman though not legally divorced but living
separately from her husband for a long time has no capacity to adopt a child. If an adoption is to be made it
must be made by her husband with her consent. A married woman whose husband is alive can make an
adoption in any one of the following situations:
(a) If her husband has ceased to be a Hindu.

(b) If her husband finally and completely renounced the world, or
(c) If her husband has been adjudicated to be a person of unsound mind.
For the elucidation of these conditions, please refer to our commentary in paragraph 6 of section 7.
Page 3 of 4
Provision is not discriminatory.— When married persons adopt consent of each other is necessary. This
provision is not discriminatory. A single person has freedom to adopt. There is no fundamental right to adopt.2
7. Hindu Widow’s Right of Adoption
If a Hindu dies leaving behind more than one widow, each widow can adopt in the absence of her own child.
For instance, A died, in 1957 issueless leaving behind three widows X, Y and Z. X, Y or Z each can take a son
and/or a daughter in adoption or, say, he died leaving behind a son from his wife X and a daughter from his wife
Y, and no issue from his wife Z. Then, X can adopt a daughter. Y can adopt a son, and Z can adopt a son
and/or a daughter, X and Z will be step-mothers in respect of Y’s son; Y and Z in respect of X’s daughter and X
and Y in respect of Z’s son and/or daughter.
Under the old Hindu law there was controversy on the matter whether of the two sonless widows, mother-in-law
and daughter-in-law who could make an adoption.1 It is hoped that such a controversy will not arise under the
Hindu Adoptions and Maintenance Act.
In Asha Bai v. Vithal,2 the Supreme Court has held that of the two widows, the mother-in-law has no right to
make an adoption in the presence of daughter-in-law.
A Hindu widow making an adoption to herself does not need the consent of any relation of her husband or
anybody else.3 The Supreme Court observed that 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.4
Some anomalous situation can arise in a case where a Hindu having three wives adopted a son and a daughter
with the consent of his wives. The senior most wife will be the adoptive mother and the other two would be
step-mothers. There is no doubt that after the death of her husband the senior most cannot adopt. But can the
junior wives, being only step-mothers adopt? One view may be that since they had consented to the earlier
adoptions made by their husband, they cannot adopt. The other view is that since a step-child is no child, they
can adopt in their own right—a right which accrues to them only on the death of the husband.
8. Woman Living Separate from her Husband
A woman who is living separate from her husband either under a separation agreement or under a decree of
judicial separation remains a married woman and hence she has no right to make an adoption. The same is the
position of a deserted wife or a wife living in desertion. Her husband also cannot make an adoption without her
consent.
* Subs. by Act 30 of 2010, sec. 3, for section 8 (w.e.f. 31-8-2010). Section 8, before substitution, stood as under:
“8. Capacity of a female Hindu to take in adoption.—Any female Hindu—
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has
competent jurisdiction to be of unsound mind,
has the capacity to take a son or daughter in adoption.”.
1 Vasistha, 15.5, Bandhayana, 216.

2 Now subject to Amendment.
3 A text of Vasistha is the authority, “Nor let woman give a son or should she accept one, give with the consent of her
lord.” This text was interpreted differently in different schools. In Bombay, the view taken was that the text applies only
Page 4 of 4
when a female adopted during the life-time of her husband and therefore, a widow could adopt provided her husband
had not forbidden her from doing so. The Mithila took the view that since consent of the husband was necessary at the
time of adoption, a widow could not adopt.
The Banaras school took the view that consent was” necessary, though it could be effective even after the death of the
husband. The Dravida school took the view that want of husband’s consent could be supplied by his nearest sapindas
and thus a widow was permitted to adopt with the consent of her husband’s nearest sapindas: see Naidu v. Naidu, AIR
1970 SC 1973 [LNIND 1969 SC 345] where case law on Sapinda’s consent has been reviewed. See also Appaswami
v. Sarangpani, AIR 1978 SC 1951 .
1 Vijaylakshmamma v. B.T. Shankar, AIR 2001 SC 1424 [LNIND 2001 SC 806].
1 AIR 2008 SC 1056 [LNIND 2008 SC 57](Pre Amendment case).
2 Lalitta v. Union of India, AIR 1991 Kant 186 [LNIND 1990 KANT 308].
1 See Mayne 218-24. The latest cases in this line of decisions are Gurunath v. Kamlabai, AIR 1955 SC 206 [LNIND
1954 SC 175]; Venkalakshri v. Jaganatha, AIR 1963 Mad 316 [LNIND 1961 MAD 292].
2 AIR 1990 SC 670 [LNIND 1989 SC 499]; But see Bhima Kotha Dalai v. Sarat Chandra Kotha Dalai, AIR 1988 Ori 14
[LNIND 1987 ORI 86].
3 Appaswami v. Sarangpani, AIR 1978 SC 1051 [LNIND 1978 SC 112]. This is a case where adoption was made prior to
the coming into force of the Hindu Adoptions and Maintenance Act, 1956, yet the adoption was held valid in disregard
to the consent of husband’s sapindas.
4 Appaswami v. Sarangpani, AIR 1978 SC 1051 [LNIND 1978 SC 112](1056); Abhishek Sharma v. State of Uttar
Pradesh, AIR 2009 All 77 .
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
9. Persons capable of giving in adoption.—
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the
child in adoption.
*[(2)Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to
give a son or daughter in adoption:
Provided that such right shall not be exercised by either of them save with the consent of the other
unless one of them 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.]
*[***]
**[(4) Where both the father and mother are dead or have completely and finally renounced the world or
have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound
mind or where the parentage of the child is not known, the guardian of the child may give the child in
adoption with the previous permission of the court to any person including the guardian himself.]
(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the
adoption will be for the welfare of the child, due consideration being for this purpose given to the
wishes of the child having regard to the age and understanding of the child and that the applicant for
permission has not received or agreed to receive and that no person has made or given or agreed to
make or give to the applicant any payment or reward in consideration of the adoption except such as
the court may sanction.
Explanation.— For the purposes of this section—

(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother;
***[***]
@[(ia) “guardian” means a person having the care of the person or a child or of both his person
and property and includes—
Page 2 of 12
(a) a guardian appointed by the will of the child’s father or mother; and
(b) a guardian appointed or declared by a court; and]
(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the
child to be adopted ordinarily resides.
Comments
1. Scope
Under the old Hindu law only parents had the capacity to give a child in adoption. The Hindu sages clearly laid
it down to be an imperative rule that only the father or the mother could give the child in adoption. According to
Manu:
He is called a Datrima son whom his mother or father affectionately give as a son, being alike, and in time of distress,
confirming the gift with water.1
According to Yajnavalkaya:
A dattaka son is one whom his mother or father gives.2
According to Baudhayana:
He is called a dattaka son who being given by his father and his mother or by either of the two, is received in the place
of a child.3
Sage Vishnu declared:
The dattaka son is the eighth, and he is his to whom he is given by both the mother and the father.4
Sage Vasishtha declared:
The second is the dattaka son, whom his mother and his father give.5
Sakala said:
Let one of a regenerate tribe destitute of male issue on that account adopt as a son the offspring of a sapinda relation
particularly, or also next to him, one born in the same general family. If such exist not, let him adopt one born of
another family: except a daughter’s son, and a sister’s son, and the son of the mother’s sister.1
Most of the sages assign equal power of giving the child in adoption by the father and the mother. Some sages,
however, gave precedence to the father over the mother. According to Sage Vasishtha:
......But let not an only son be given or accepted in adoption, for he is to continue the line of ancestors. But a woman
shall neither give nor accept a son, except with the consent of her husband.2
In the Commentaries and Digests, while the father’s power of giving in adoption is universally recognised, the
same power is denied or doubted to the mother.
The learned writer of the Dattaka Mimansa quotes the following text of Saunaka, “By one having an only son
the gift of son should not be made; by one having many sons the gift of a son should anxiously be made,”3 and
comments, “since the masculine gender is used in the compound word ‘by one having many sons’ the gift of a
son, by a woman is prohibited,” but on the basis of the text of Vasishtha, “except with the assent of her
husband” he admits that the mother can give her child in adoption with the assent of her husband.4 Curiously
enough, Nand Pandit denies5 the power of taking in adoption to a widow, but gives the power of giving in
adoption to a widow and maintains that in such cases assent must be presumed inasmuch as Vedic instances
indicate the legality of such gifts and inasmuch as several texts of sages recognise independent power of the
Page 3 of 12
mother to give in adoption.1 Then, referring to text of Manu, Baudhayana, Yajnavalkaya and Vasishtha he laid
down the following three propositions:2
(i) the competency of both parents united, is the principal;

(ii) that of the father alone independently of the mother is the mediocre, and
(iii) that of the mother, depending as it does on the assent of her husband, is an inferior alternative.
Nand Pandit commenting upon a text of Saunaka lays down, “The capacity to give consists in having a plurality
of sons, and in the assent of the wife.3 This means that if both the parents are alive the father must obtain the
assent of the wife before giving away the child in adoption.
The Dattaka Chandrika does not go into the details of the respective right of the mother or the father of giving
the child in adoption. According to it:
But, by a woman, the gift may be made with her husband’s sanction if he be alive; or even without it, if he be dead, or
remotely absent or retired from the world. Accordingly, Vasishtha ordains—Let not a woman, either give or receive a
son, except with the assent of her husband.”
Now, if there be no prohibition even, there is assent, on account of the maxim—“the intention of another is
sanctioned, if not prohibited.” Gift (by a woman) independently (of the husband) is laid down by Yajnavalkaya.
“He whom is father or mother gives, is the Dattaka son. Likewise by Manu......”4
Commenting upon the definition of dattaka son given by Yajnavalkaya, the author of Mitakshara observes:
He, who is given by his mother with her husband ‘s consent, while her husband is absent,5 or after her husband’s
death,6 or who is given by his father, or by both, being of the same class with the person to whom he is given,
becomes his given son.7
According to Viramitrodaya an adopted son is:
He, whom the mother with her husband’s assent, or the father gives to another...........the father and the mother may
give either separately or jointly.8
The Vyavahara Mayukha commenting on the above-quoted text of Manu observes that in the text participle ‘or’
(wa) is used which means that the mother or the father may give:
......it appears that in default of the mother the father alone may give; and in default of the father, the mother alone; but
if both are in existence, then even both......1
When these texts came for interpretation before our court, the requirement of wife’s consent for giving the child
in adoption was considered not to be an imperative requirement of law. From the decided cases the following
propositions may now be taken to be well settled:
(i) The father can give his son in adoption with the consent of his wife.
(ii) The father’s power of giving away her child in adoption is absolute and he can give away the child even
without the consent of the mother2 or even despite her opposition.3
(iii) The mother can give away her child while her husband is alive only with the consent of the husband.4
(iv) After the death of her husband the mother can give her son in adoption.5
(v) The mother can give away her son in adoption even during the life-time of her husband, if her husband
is of unsound mind or is permanently absent or had entered a religious order.6
(vi) In the last two cases she cannot give the child in adoption, if her husband has expressly forbidden her
to do so.7
(vii) No other person1 except the father or the mother of the child can given him in adoption.
2. Sub-section (2): Father’s Capacity to give in Adoption

Page 4 of 12
According to Manu, “He is called a dattaka son whom his mother or father affectionately gives as a son being
alike.......”2 Under the old Hindu law father has the right to give in adoptions, and during the life time no one
else could do it. Mother could give the child in adoption only in the absence of the father. The position under the
old Hindu law was that the father could give his son in adoption with or without the consent of the mother of the
child, or even against her wishes. No one else could do so,3 not even the grandfather or any other paternal or
maternal relation.4
It is interesting to note that the Act says that a person who takes a child in adoption should be major and of
sound mind, but these twin conditions are not mentioned in the case of the giver of the child. Soundness of
mind may be presumed from the requirement that if the father has been adjudged as of unsound mind, the right
to give in adoption passes on to the mother. Similarly, we should infer that only a major can give the child in
adoption.
Under the Act the father continues to have the prior right to give in adoption.5 Now, of course, after the
Amendment Act of 2010 a wife can also give a child in adoption after obtaining consent of her husband. But he
can do so only with the consent of his wife, i.e., mother of the child.6 Irrespective of the fact whether the child is
a male or female child. An adoption made by him without her consent is void. It may be emphasised that
consent required is that of the mother of the child. It is immaterial that the marriage is void or marriage has
been annulled or dissolved. It is also immaterial that the mother of the child has separated from the father of the
child or is in desertion.
3. Sub-section (2): Consent of the Mother of the Child
Consent that is required is not of the wife of the person who gives in adoption but of the mother of the child. A
wife who is not the mother of the child has no authority to consent or dissent, if the child has no mother, the
father can give the child in adoption and he needs nobody’s consent for the exercise of his right.
Consent need not be express. It may be implied. When the mother participates in the ceremony of giving child
in adoption her consent will be implied unless she proves fraud, force, coercion or undue influence. In short, if
her consent is not free, adoption will not be valid. A difficult question may arise when she is a minor. But, it
seems that if she is of the age of discretion and consents, her consent should be enough, the Act does not say
that the mother should be major. In practice there would hardly be a case where the mother of child would be
below the age of discretion as in such a case she would not be, ordinarily, capable of bearing a child.
The old law under which he could give his son in adoption without the consent of the mother of the child is no
longer valid.1 Under the modern Hindu law father has no absolute power to give the child in adoption. An
adoption without her consent is void.
4. Explanation (i): Step-father and Adoptive Father
The expression, ‘father’ here does not include an adoptive father, putative father or step-father. The putative
father of an illegitimate son is not included even if, subsequent to the birth of the child, he had married the
mother of the child, because Hindu law does not recognize legitimation.
5. Father who has ceased to be a Hindu
Under the old Hindu law a father who ceased to be Hindu could give the child in adoption since he was
permitted to delegate the performance of the ceremony to some other person. It is submitted that whether he
can do so now is doubtful. On his conversion, the power passes to the mother and she alone can exercise it. In
such an event, the mother can give child in adoption without his consent and, even despite his protest.2
6. Adoptive Person’s Right to give his Child in Adoption Born to him Prior to Adoption
Before 1956, in Bombay school a married person could be taken in adoption under custom. The same is the
position under the Act. The question that arises is: Can a father exercise the power of giving in adoption a child
born to him prior to his adoption? There is no textual authority on the matter either way. When a married person
is taken in adoption his wife goes with him in the adoptive family, but his children born to him before adoption
remain in the natural family.3 Therefore, the obvious question is: In such a case can the father still exercise his
power of giving the child in adoption? Obviously his natural father (i.e., child’s paternal grandfather) has no
such power. The problem is this: (a) Whether after his “Civil death” in the natural family and “rebirth” in the
adoptive family, can he still have some power over his children left in the natural family, and (b) does not his
authority over his children cease to exist once he goes to another family? Nand Pandit laid down:
Page 5 of 12
Of the son adopted, purchased and the rest, the relationship of consanguinity with their natural father does certainly
subsist. It is not extinguished by gift, etc. Its connection being with the portions of the body, so long as the body lasts, it
is difficult to be extinguished.
In Bai Seserba v. Shiv Singhji,1 Parkash, J. observed that it would be dangerous to extend the fiction of new
birth in the adoptive family so as to hold that he was never born in the natural family and had been born in the
adoptive family. The matter was considered by a Full Bench of the Bombay High Court in Martland v.
Narayan.2 On the basis of Nanda Pandit’s text the Court said if an adopted person had a child born to him prior
to adoption, he was nevertheless his genitive father. This status could never be lost. The Court added, with the
father actually living it would be hardship on the boy to treat him as an orphan merely because his father has
gone in adoption to another family.3
On the other hand, a Full Bench of the Nagpur High Court took a contrary view in Sarad Chandra v. Shanta
Bai.4 According to the Full Bench since adoption implies a complete severance of the adoptee from his natural
family and his right to give his child born to him before his adoption and left in the natural family is lost. He does
not have any right to give such a son in adoption. In our submission the Nagpur view is preferable and correct.
If adoption severs all ties in the natural family, we should accept all the consequences of the same. He has no
obligations towards such a child. Neither can he claim guardianship nor can he be saddled with the
responsibility of maintaining him. We have to accept all the consequences of adoption and it would be sheer
sentimentalism to say that such a person is nonetheless his genitive father. Genitive father he is, but he has
lost the status of his father by his being given in adoption in another family and his leaving behind his genitive
progeny.
7. Sub-section (2): When Consent of the Mother may be Dispensed with
In the following three cases, the consent of the mother of the child may be dispensed with:
(a) When she has ceased to be a Hindu,

(b) When she has completely and finally renounced the world, and
(c) When she has been judicially declared to be of unsound mind.
8. Sub-section (3): Mother’s Capacity to give in Adoption
Vasishtha said: ‘A son produced from the virile seed and uterine blood in an effect whereof the mother and the
father are the cause.1 It is a unique feature of law that though a married woman was not allowed to take a child
in adoption to herself and when widow was allowed to adopt, she adopted to her husband, yet mother’s power
was not so limited, as to giving away the child in adoption. The mother could give the child in adoption even
during the life-time of her husband if the latter was incompetent.2 Of course, each case was to be judged on its
own merits.3 When she became a widow she could give her son in adoption and it was not required that he
must have given his consent before he died.4 She could do so if there was not express prohibition from her
deceased husband.5 Thus, under the old Hindu law mother had no capacity to give the child in adoption during
the life time of child’s father if he was capable of giving consent. When she became widow there were no fetters
on her power, unless her husband before he died had expressly prohibited her from giving the child in
adoption.6
Under the Act also mother has no power to give her child in adoption so long as the father is alive. The
circumstances in which she can give the child in adoption during the life-time of her husband are laid down.
These are:
(a) When the father has ceased to be a Hindu,

(b) When he has completely and finally renounced the world, or
(c) When he has been declared by a Court of competent jurisdiction to be of unsound mind.
It may be emphasised that if father is in fact of unsound mind but he has not been adjudged as a person of
unsound mind, the mother cannot give the child in adoption.
Here “mother” means natural mother. Explanation to the section expressly says that mother does not include an
adoptive mother. In our submission step-mother is also not included.7
Page 6 of 12
It appears that the mother cannot give the child in adoption during the life-time of the father, even if the
marriage is void. The same is the position when a marriage has been annulled or dissolved. It would make no
difference, that she has been deserted by her husband or that the parties are living separate under a separation
agreement or under a decree for judicial separation.
9. Mother’s Right to give in Adoption her Illegitimate Child
Although Hindu law never considered an illegitimate child as filius nullius, the relationship of such a child with
the father (except for the purpose of its maintenance) was not recognized. Putative father had no rights over the
child. On the other hand, mother of such a child was recognized.1 Obviously, mother should have been
recognized to have the power to give the child in adoption. But our Courts rendered conflicting decisions. In
Apya Settya Talwar v. Rammakka Apya Talwar,2 the Bombay High Court felt that since the two mandatory
conditions, viz., the child given in adoption by a woman was her husband’s child and the husband was
incapable of giving his consent, could not be fulfilled in the case of an illegitimate child, adoption of such a child
was not possible and if made, it was void. The Mysore and Nagpur High Courts,3 dissented from this view.
They said that since putative father is nobody to the child, if child’s mother desired to give it in adoption she
certainly had the power to do so.
Under the Act also the mother has the right to give such a child in adoption even when the putative father is
alive and owns up the child. It may be argued that when putative father is known he should be allowed to have
a say,4 but if that argument would prevail, then under the letter of the law mother would have no power to give
the child in adoption as her right arises only after the death of the father or in the three cases listed above.
Since in the definition of the father putative father is not included, the illegitimate child has no father and thus
even where a putative father is known and acknowledges the child, he has no role to play in the adoption of
such a child. Neither he himself can give the child in adoption nor can be prevent the mother from giving away
the child in adoption. His consent, too, is not needed. In short he cannot create any obstruction in the way of
the adoption of such a child nor can he give such a child in adoption.
10. Widow’s Right to give her Child in Adoption after her Remarriage
A widow has a right to give her child in adoption under the old Hindu law, and so she has under the modern
Hindu law. But a question arises: Can she give her child in adoption after she had remarried. Under the old law
our courts expressed divergent views. The main argument is based on section 3 of the Hindu Widow’s
Remarriage Act, 1856, under which on her remarriage she loses her right of guardianship over the child and,
therefore, cannot give him in adoption. The Act is still in force.
In Panchappa v. Sanganbasawa,5 the Bombay High Court expressed the view that she could not give such a
son in adoption unless her deceased husband had expressly authorised her to do so. But in Putliabai v.
Madhu,6 the Bombay High Court took the opposite view. The court said that mother’s right to give her child in
adoption arose out of maternal relationship and was not deprived by any delegation from her husband and,
therefore, she could not be deprived of that right by any provision of the Hindu Widow’s Remarriage Act, 1856.
However, a Full Bench overruled this decision in Fakirappa v. Savitrawa,1 Shah J. said:
It seems to me that a Hindu widow after her remarriage cannot claim to have any right to give a son by her first
husband in adoption..........A Hindu widow on her remarriage loses all power of giving her son by her first husband in
adoption because her connection with the family of her first husband, which is necessary for the act of giving in
adoption, ceases on her remarriage.
The Nagpur2 and Allahabad3 High Courts have followed this decision. These decisions are based on the
construction of section 3 of the Hindu Widow’s Remarriage Act. Carefully looked at, that section lays down that
in case the widow has not been made a guardian of her minor children by her husband’s Will then her father or
paternal grandfather or the mother or paternal grandmother of the deceased husband or any male relative of
the deceased husband may petition to the Court for the appointment of a proper person as the guardian of such
children. But if children have no property of their own no such appointment shall be made except with the
consent of the mother unless the proposed guardian gives security for the support and proper education of the
children during minority. In our submission so long as she remains the guardian of her minor children she
certainly can exercise her right of giving away her child from her former husband. In our submission, even if
some one else is appointed a guardian, her right as mother Will still exist. Appointment of some person as
guardian does not deprive her of her rights of mother over her children. She remains their mother. The right to
give the child in adoption is not the right of guardianship but it is essentially a parental right. It may be noticed
that such a guardian can be appointed even on her petition. It is apparent from this provision that it has been
Page 7 of 12
enacted for the welfare of the child, in case on her remarriage mother is not able to look after it and does not
impose any disqualification on her. Thus, her right to give away her child in adoption after the death of her
husband is not taken away from her on her remarriage either on account of any provision of Hindu law or the
Hindu Widow’s Remarriage Act, 1856.
The same is the position after the coming into force of the Hindu Adoptions and Maintenance Act, 1956. In our
submission, this is one of those situations where a order of the court determining whether the adoption is for the
welfare of the children, is desirable.
11. Widowed Mother’s Power to give in Adoption
After the death of the father, mother’s power of giving the child in adoption is unfettered. Even if her husband
before he died had expressly forbidden her from giving the child in adoption, she can give the child in adoption.
12. Converted Mother’s Right to give in Adoption
It appears that mother on conversion does not lose her right of giving the child in adoption. It may be noticed
that section 9(4) does not empower a guardian to give the child in adoption when mother has converted to
some other religion.
13. Sub-section (5): Adoption and Welfare of the Adopted Child
Under Hindu law if the father or mother is the giver of the child in adoption, no order of the court is required.
This is the continuation of the old notion under which adoption was considered to be essentially a private act,
and adoption was essentially a transfer of dominion over the children by the natural parent to the adoptive
parent, and therefore the question whether an adoption was or was not for the welfare of the child did not arise.
It is true today, as it was ever before, that no person can look after the welfare of children in a better way than
parents. But the divorce cases show that it is not always so, and when parents fight each other, children are the
first prey of family feud. The very fact that a parent wants to give away the child in adoption is indicative of
different attitude. It may be that in some cases a parent wants to give away his child in adoption because he
feels that the child will have better upbringing. But it may be otherwise too. Take, for instance, a young widow
or a young mother of an illegitimate child may feel that in her resettlement in life, the child is proving a
hindrance, and she may, therefore, want to give away the child in adoption to any person who is willing to have
it. This may as well be true in the case of widower. If we accept that the very fact that a parent wants to give
away the child in adoption calls for investigation, since giving away the child in adoption by a parent cannot be,
prima facie, in the welfare of the child. Thus, whenever a child is to be given in adoption, by father, mother or
guardian, the adoption order should be necessary, and no court of law should pass an order unless it comes to
the conclusion that the proposed adoption will be for the welfare of the child.
14. Adoption of Orphans
During the Raj, it came to be established that since only father or mother could give the child in adoption,
orphans could not be adopted. In Basant Singh v. Brij Raj Saran Singh,1 the court observed:
The reason that under the Mitakshara law an orphan cannot be adopted is because a boy can be given in adoption
only by his father or his mother and such giving is an essential part of ceremony.2
This was also considered to be the law under the Dayabhaga school.
An orphan could be adopted only if custom permitted such adoption.3
This state of law was obviously unsatisfactory. It was the orphans who were needed to be adopted by some
one, and it was they who could not be adopted because the law did not permit their adoption. Consequently,
the Hindu Adoptions and Maintenance Act, 1956, made it possible to adopt an orphan. Originally section 9 of
the Act provided that the father or the mother or guardian of the child alone could give the child in adoption.
Sub-section (4) provided that the guardian could give the child in adoption only if the parents were dead, or
have completely and finally renounced the world or have been declared by court of competent jurisdiction to be
of unsound mind.
The provisions in the Act relating to the adoption of an orphan were found not very satisfactory, since it did not
include abandoned children and the definition of guardian was also very narrow. In 1962, the Hindu Adoptions
and Maintenance (Amendment) Act was passed which purports to do the following two things:
Page 8 of 12
(a) The Act purports to lay down that a child who has been abandoned by both his parents or child whose
parentage is not known can also be given in adoption.1
(b) Now the terms “guardian” includes not merely the testamentary guardian and guardian appointed by
the Court but also a person who has the care of the person of the child or having care of both person
and property of the child, i.e., a de facto guardian.
In Shankar Kumar Das v. Supt. Jawaharlal Nehru Memorial Hospital, Kalyani,2 it was held that abandoned
children shall be deemed to be in custody of Juvenile Justice Board and it would be the duty of the Board to
visit the child from time to time. Application for adoption of such children can be filed by the Board only. Court
can permit adoption to a willing couple.
15. Adoption of certain other Children
Under the Act not merely orphans but certain other children can also be given in adoption by the guardian.
These are:
(a) Children whose parents are dead, i.e., orphans.

(b) Children whose both parents have finally and completely renounced the world.
(c) Children whose both parents have been adjudged to be of unsound mind.
(d) Children who have been abandoned by both the parents.
(e) Children whose parentage is not known, such as foundling and refugee children.
It is obvious that if one of the parents is dead and the other is disqualified, the guardian has the power to give
the child in adoption. Similarly, it may be that one parent suffers from one disqualification and the other parent
from some other, when also the guardian will have the power to give the child in adoption.
16. Explanation (ia): Guardians
The original sub-section (4) of section 9 of the Act confined the power of giving the child in adoption to the de
jure guardian, i.e., testamentary guardian or guardian appointed by the court. As we have seen earlier, the
Amending Act, 1962 has enlarged the definition of guardian so as to include both de facto and de jure
guardians. This has been done by introducing a new clause (ia) to the Explanation. According to the clause:
Guardian means a person having the care of the person of a child or of both his person and property and
includes—
(a) a guardian appointed by the Will of the child’s father or mother, and
(b) a guardian appointed or declared by a Court.
Thus, the term guardian includes both de jure and de facto guardian. A manager, secretary or any person in
charge of an orphanage or a person who has brought up the child or under whose care the child is, can give the
child in adoption.
17. Sub-section (5): Prior Permission of the Court and Welfare of the Child
When the guardian exercises power of giving the child in adoption, prior permission of the court is necessary.
No court will accord permission to an adoption proposed by the guardian unless it comes to the finding that the
adoption will be for the welfare of the child. If the child is capable of expressing his wishes, his wishes will be
taken into account, though court may pass an adoption order contrary to the wishes of the child as the welfare
of the child is of paramount consideration. In considering what is for the welfare of the child, the court will
consider the physical and moral well being of the child and the character and qualifications of the proposed
adopter. The financial position and social status of the proposed adopter may also be taken into consideration.
In short, the court will weigh the pros and cons of the two places: the place where the child is and the place
where the child will be taken to. If the situation in which the child is proposed to be taken is less advantageous
to the child, the court will ordinarily refuse to pass an adoption order.
The permission of the civil court is necessary. The Family Court has no jurisdiction to accord permission.1
18. Section 9(5): Consideration for giving the Child in Adoption
The second matter the court has to consider before passing an adoption order is that the applicant seeking
Page 9 of 12
permission has not received or agreed to receive, and that no person has made or given or agreed to make or
give to the applicant any payment or reward in consideration of the adoption. If anything, in cash or kind, has
been given or taken or agreed to be given or taken the court may refuse to accord permission to the proposed
adoption. It is submitted that if an adoption is made in contravention of this condition (it may not be brought to
the notice of the court) the adoption will stand valid as this cannot be taken one of the essential conditions of
adoption within the meaning of section 6(iv). The court has power to allow some payment to be made to the
guardian. For instance, cost of the performance of ceremonies of adoption will be a valid charge. The court may
also allow the actual cost of the up-keep of the child that guardian had spent from his own pocket. The court, it
seems, has also power to attach conditions to the adoption order.
19. Explanation (ii): The Court
Clause (4) of the section lays down that when guardian gives a child in adoption prior permission of the court is
necessary. Clause (ii) of the Explanation lays down the forum to which an application has to be made. Such an
application may be made to:
(i) the Civil Court, wherever it exists, provided the child ordinarily resides in the local limits of its
jurisdiction, or
(ii) to District Court (where there is no city civil court) within the local limits of whose jurisdiction the child
ordinarily resides.
For the meaning of the expression “ordinarily resides” reference may be made to our commentary on section
25, Guardians and Wards Act.
The High Court may in certain exceptional circumstances exercise the jurisdiction, particularly where the child
has not established an ordinary residence, such as in the case of a refugee child or foundling, or a child who is
visiting India, or has been brought to India in an ordinary way or by deceit.
* Subs. by Act 30 of 2010, sec. 4(i), for sub-section (2) (w.e.f. 31-8-2010). Earlier sub-section (2) was amended by Act 45
of 1962, sec. 3(a) (w.e.f. 29-11-1962). Sub-section (2), before substitution by Act 30 of 2010, stood as under:
“(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to
give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has
competent jurisdiction to be of unsound mind.”.
* Sub-section (3) omitted by Act 30 of 2010, sec. 4(ii) (w.e.f. 31-8-2010). Sub-section (3), before omission, stood as
under:
“(3) The mother may give the child in adoption if the father 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.”.
** Subs. by Act 45 of 1962, sec. 3(b), for sub-section (4) (w.e.f. 29-11-1962).
*** The word “and” omitted by Act 45 of 1962, sec. 3(c)(i) (w.e.f. 29-11-1962).
@ Ins. by Act 45 of 1962, sec. 3(c)(ii) (w.e.f. 29-11-1962).
1 IX, 168.
2 II, 131.
3 II, 2, 3, 20; Dattaka Mimansa quotes another text of Baudhayana, “Both parents alone have the power, for the
connection to them is equal.” (Dattaka Mimansa, IV 14).
Page 10 of 12
4 XV, 18-19.
5 XVII, 28-29.
1 See Dattak Chandrika, I, II, the text is also quoted in Bhagwan Singh v. Bhagwan Singh, (1899) 26 IA 153 (160). The
following text of Saunaka may also be noted:
The adopter having taken the boy by both hands, with the recitation of prayers.......having inaudibly repeated the mystical
invocation.........’ having kissed the forehead of the child; having adorned with clothes, and so forth, the boy, bearing the
reflection.........accompanied with dancing, songs and benedictory words, having seated him in the middle of the
house.........and having performed the homa or burnt—sacrifices with the holy texts, should complete the remaining part
of the ceremony. The adoption of a son by any Brahman, must be made from among the sapindas..........; or on failure
of these, an asapinda may be adopted; otherwise let him not adopt. Of Kshatriyas, in their own class positively; and (on
default of sapinda, kinsmen) even in the general family, following the same guru; of Vaisaya, from among those of
Vaisya class; of Sudra, from amongst those of Sudra class. Of all, and the tribes likewise, (in their own) classes only;
and not otherwise. But a daughter’s son, and a sister’s son are affiliated by Sudras. For the three superior tribes, a
sister’s son is nowhere (mentioned as) a son. By no man having such gift of a son is to be ever made. By a man having
several sons such gift is to be made, on account of difficulty.” The text is cited in Dattaka Mimansa (see V. 2.21; II 2, 74
see also Mayukha IV, V, 8-10.)
2 Vasistha, XV, 3-4.
Baudhyana also gives precedence to the father over the mother in the matter of adoption, see Baudhayana, Parisishta, VII,
5, 2-6.
This text of Vasistha which limits the power of the female to give or make an adoption has been variously interpreted by
different schools of Hindu Law; and there were as many as five views on the subject.
3 Dattaka Mimansa, 4, 1.
4 Dattaka Mimansa, 4, 9-10.
2 Dattaka Mimansa, 4, 14-17.
4 Dattaka Chandrika, 1, 31-32.
5 Balambhatta adds a gloss here: “or incapable though present.”
6 Balambhatta adds a gloss here too, “without his assent.”
7 Mitakshara, 1, 11,9.
8 Viramitrodaya, 115. According to the learned author if a child is given without distress the giver incurs a sin. The
Mitakshara is also to the same effect (1, 11, 10).
1 Vyavahara Mayukha, 50. Vaijanti is also to the same effect. The power to give the child in adoption belongs to the
parents. The mother may also give the child in adoption with the consent of her husband. The mother can also give if
the father is dead.
2 Alank Manjari v. Fakir Chandra, 5 SD 356; Chitko Raghunath v. Janki, (1874) 11 Bom HC 199.
3 Chitko Raghunath v. Janki, (1874) 11 Bom HC 199; Narayanaswami v. Kuppuswami, ILR (1888) 11 Mad 43 .
This is recognised even by Jagannath. The Dattaka Mimansa maintains that for religious purposes assent of the wife is
necessary. In Shri Virada v. Shri Brojo, ILR 1 Mad 69, it was opined that adoption without the consent of the wife
cannot be valid. Upto the time of decision in this case, the accepted judicial view was that the spiritual motive was
dominant motive in adoption. See Mayne, Hindu Law and Usage, 11th Edn., 226.
4 Muthuswami v. Chidambara, (1948) 2 MLJ 468.
5 See Dattaka Mimansa, IV, 10-12; Dattaka Chandrika, 1, 31, 32; Mitakshara, 1, xi, 9; Arunachellum v. Iyasami, ILR 1
Mad 154.
6 Huro Sundari v. Chundramonee; Rangubai v. Bhagirathibai, ILR (1878) 2 Bom 377 ; Mhalsabai v. Vithoba, (1870) 7
Bom HC 26; Jogesh Chandra v. Nrityakali, ILR (1903) 30 Cal 965 ; Raja Mukand v. Jagannath, ILR (1923) 2 Pat 469 ;
Shiva Parsad v. Natwar Lal, ILR (1949) Bom 318; Nago v. Sukhya, AIR 1953 Nag 239 ; Narayan v. Nana, 7 Bom HCR
153; Santappayya v. Rangappayya, ILR 18 Mad 397; Lallubai v. Mankuverbhai, ILR 2 Bom 388; Tarinee v. Sheroda, 11
WR 469.
Page 11 of 12
7 Naryanswami v. Kupuswami, ILR 11 Mad 43; Gurulingaswami v. Ramalakshmanna, ILR 18 Mad 53; Raja Mukand v.
Jagannath, AIR 1923 Pat 432 ; Rangubai v. Bagirathi Bai, ILR 2 Bom 377; Nago v. Sukya, AIR 1953 Nag 239 .
1 Collector of Surat v. Dhir Singh, 10 Bom HCR 235; adoptive parents cannot give their adopted child in adoption. This is
also the law under the Hindu Adoptions and Maintenance Act, 1956.Papama v. Appa Rao, ILR 16 Mad 384; Haribhan
Ganpatrao v. Ajajrao, AIR 1947 Nag 143 ; Step-mother has no authority to give her step-child in adoption.
Mst. Tara Munee v. Deb Narayan, 3 SD 387; grandfather has no power of giving his grandson in adoption.
Narayan v. Nana, 7 Bom HCR 153; Rangubai v. Bhagirathi Bai, ILR 2 Bom 377; Santappayya v. Rangappayya, ILR 18 Mad
397; Jogesh Chandra v. Nrityakali, ILR 30 Cal 965; Lallubai v. Mankuverbhai, ILR 2 Bom 388; the brother has no power
of giving his brother in adoption.
2 Manu IX 168.
3 See also Dattaka Mimansa IV, 15; M. Vyavahara Mayukha, Niekantha said that mother or father i.e., either could give
in adoption or both could give in adoption: Vyavahara Mayukha, 50.
4 Damraj v. Sonebai, AIR 1925 PC 118 ; Muthuswami v. Chidambara, AIR 1949 PC 18 ; Maloji Rao v. Rarabai, AIR 1956
Bom 397 [LNIND 1956 BOM 5].
5 Collector of Surat v. Dhir Singh, 10 Bom HCR 235; Tara Munee v. Dev Naryan, 3 Sadar Diwani Adalat 387.
6 Dhanraj v. Suraj Bai, AIR 1971 Raj 7 ; all the four conditions of adoption laid down in section 5 are mandatory.
1 For old law, see Mayne, Hindu Law and Usage, 11th Edn., 226; Sastri Sarkar, Hindu Law of Adoption (1966) 274,
where all the texts and precedents have been discussed.
2 Derrett takes the contrary view on the basis that in Explanation to sec. 9, “father” does not include adoptive father and
therefore rest of the fathers are included. Introduction to Modern Hindu Law 97.
3 Tavanappa v. Somppa, ILR 30 Bom 669; Manikbai v. Cochil Das, AIR 1925 Bom 372 ; Martland v. Narayan, AIR 1939
Bom 305 .
1 ILR 34 Bom 136.
2 AIR 1939 Bom 305 (FB).
3 See also Raghuraj v. Subhdra, AIR 1928 PC 87 .
4 AIR 1944 Nag 60 (FB).
1 Vasishtha, XV, 1, 2.
2 Apya Settya Talwar v. Rammakka Apya Talwar, AIR 1941 Bom 222 ; Muthuswami v. Chidambara, AIR 1949 PC 18 .
3 Nago v. Sakya, AIR 1953 Nag 239 (in this case whereabouts of the husband was not known.) It was held that the
mother could give away the child in adoption.
4 Jogesh Chandra Banerjee v. Nritya Kali Devi, ILR 30 Cal 965.
5 Raja Mukand Dev v. Sri Jagan Nath, AIR 1923 Pat 423 .
6 Nago v. Sukya, AIR 1953 Nag 239 ; Shiv Parshad v. Natwar Lal, AIR 1949 Bom 408 .
7 Dhanraj v. Suraj, AIR 1971 Raj 7 ; AIR 1975 SC 1103 [LNIND 1975 SC 141].
1 Mayana v. Littram, 2 Mad HCR 196 is the oldest case recognizing the mother.
2 AIR 1941 Bom 222 .
3 Talwar Hanumani v. Talwar Outtya, (1948) 26 Mys LJ 8; Sadhu v. Shankarrao, ILR (1955) Nag 461.
4 It seems B. Sivaramayya takes this view and says that putative father has a right to give the child in adoption and
mother cannot do so, unless the courts construe him as dead [see (1962) JIL 1 461]. In our submission since putative
father does not exist in law, he is not there and thus question of considering him as dead does not arise.
5 ILR 24 Bom 89.
6 ILR 33 Bom 107.
1 AIR 1921 Bom 1 (FB).
2 Sheokabai v. Ganpat, AIR 1925 Nag 1 (FB).
3 Kishni v. Ratna, AIR 1964 All 17 [LNIND 1963 ALL 19].
Page 12 of 12
1 (1935) 57 All 494.

2 (1935) 57 All 494 (509).
3 Ramkishore v. Jainarayan, AIR 1922 PC 2 ; Parsotham v. Venchandra, ILR (1921) 45 Bom 754 ; Subramanian Chettiar
v. Somsundranam, ILR (1936) 59 Mad 1064 ; Kanwar Basant v. Kanwar Birjraj, (1935) 62 IA 180; Sukbir v. Mangeisar,
AIR 1927 All 252 .
1 Section 9(1) of the Act runs as under:
“No person except the father or mother or guardian of a child shall have the capacity to give the child in adoption.”
Section 9(4) of the Act runs as under:
Where both the father and the mother are dead or have completely and finally renounced the world or have been declared
by a Court of competent jurisdiction to be of unsound mind, the guardian of a child (whether a testamentary guardian or
a guardian appointed or declared by a court) may give the child in adoption with the previous permission of the court.”
2 AIR 1996 Cal 264 [LNIND 1995 CAL 227].
1 In the matter of Canara Bank Relief & Welfare Society, AIR 1991 Kant 6 [LNIND 1990 KANT 129].
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
10. Persons who may be adopted.—

No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:—
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which
permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to
the parties which permits persons who have completed the age of fifteen years being taken in
adoption.
Comments
1. Scope
Some hold that this section deals with the capacity of a person to be adopted, though marginal title to the
section is “person who may be adopted”, and, it is submitted, the section deals more with the qualifications of
the child who may be adopted than with the capacity of a person to be adopted.
This section lays down only four requirements for a person to be adopted. All other requirements under the old
law such as the child should be a sapinda, a sagotra and belonging to the same caste have been done away
with. Similarly, prohibitions relating to adoption of an only son or eldest son, personal disqualification, and
illegitimacy have been given up. This section overrules old Hindu law.1 Only requirements are:
(i) Child must be Hindu,

(ii) Child should not be an already adopted child,
(iii) The age of the child should be below fifteen years, and
Page 2 of 6
(iv) The child should not be married child.
The last two conditions can be waived if custom permits adoptions of child of 15 years or above or of a married
child.
Now one can also adopt a daughter.

2. Old Hindu Law
The Dharmashastra has gone into the question of qualifications of the child to be adopted as a son in very
minute details. It was natural for them to do so as the adopted child was to be in the image of a natural born
son, since he was required to do all the functions and duties of a natural son and he acquired all the rights,
privileges, and powers of a natural son. Therefore, considerations for laying down the qualifications of the child
to be adopted were many, and multifarious aspects have to be taken into account. These were positive
requirements as well as negative requirements. We would review briefly these requirements.
3. Sapinda
First requirement laid down by the Dharmashastra was that the child to be adopted should be a sapinda. If
sapinda is not available, then a sagotra. If neither is available then alone one should adopt a bhinna-gotra
sapinda. This was considered by our Courts to be merely recommendatory text,1 and even the adoption of a
total stranger was considered to be valid, even if a near sapinda or sagotra child was available.2 Under the Act
any Hindu child can be adopted.
4. Incest Theory
The second requirement was on the basis of so-called incest theory. The rule laid down that one could not
adopt the son of a female whom he could not have married had she been a maiden. Thus one was prohibited
from adopting a daughter’s son.3 Nanda Pandit formulated the rule thus: amongst the twice born classes such
a son should be adopted as could be begotten on the natural mother of the boy by appointment to raise
according to the rule of Niyoga. Since the rule did not apply to Sudras, they could adopt a sister’s son or
daughter’s son.4 Similarly, if custom permitted such an adoption, adoption could take place validly.5
Under the Act there is no such prohibition. Any Hindu child, relative or non-relative could be adopted. Sister’s
son, daughter’s son or son of any female whose mother adopter cannot marry in her maiden state can also
validly taken in adoption.
5. Section 10(i): Identity of the Caste
The Shastric law was categorical that the child to be adopted should be of the same caste as that of adopter,1
and an adoption from different caste was considered to be invalid. This came to be the established law.
However, adoption from a sub-caste of the same caste was held valid.2
Under the Act caste or sub-caste is no bar. A Brahaman can adopt a Sudra boy and vice versa is also true. In
short, the only condition is that the child should be a Hindu, he may belong to any caste, sub-caste, tribe or
clan. Section 10(i) of the Act is specific on this.
6. Adoption of an only Son
Since the Hindus considered a son to be necessary for the spiritual benefit of the person, for offering oblations
to him and his ancestors—son being the redeemer of the father from the hell (that is the meaning of the word
putra)—the Dharmashstra did not permit adoption of the only son.3
When these texts came for interpretation, our courts expressed divergent views. But in Waman Raghupati v.
Krishnaji Kashiraj,4 the Privy Council, after considering various texts and judicial decision, held that adoption of
any only son was not invalid.
Under the Act there is no prohibition from the adoption of any only son. Adoption of an only son is valid.
7. Adoption of the Eldest or the Youngest Son
The Dharmashastra was against the adoption of the eldest son. The Mitakshra laid down, “Though more than
one son exists, the first born should not be given, for he chiefly fulfils the office of a son.”5 Some considered
adoption of the eldest son as sin. From the story of Sunahsepa, some opined that a youngest son should also
not be adopted. The courts consider these texts as merely recommendatory and adoption of the eldest or the
youngest son was held valid.6
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Under the Act adoption of any son, eldest, youngest or the middle one is valid. There is no prohibition
whatsoever.
8. Personal Disqualifications
Since adoption was considered to be essential for spiritual purpose, a child suffering from personal
disqualifications was recommended not to be adopted. Such a son was incapable of discharging spiritual and
religious obligation.1 However, our courts considered the texts as merely recommendatory. Thus, a child
suffering from leprosy or lunacy may also be adopted.2
9. Illegitimate Child
We have already in paragraph 9 of our commentary on section 9 considered the position of an illegitimate child.
Before the coming into force of the Act, the predominant authority was that such a child cannot be adopted.3
Under the Act there is no bar on the adoption of such child, male or female.
10. Clause (i): Child must be Hindu
Only requirement that has been retained under the Act is that the child to be adopted should be Hindu child. If
the child is Hindu that is enough, irrespective of the fact whether he belongs to a different caste or he belongs
to a higher caste or lower caste or a sub-caste or to a tribe. As we have explained in our commentary on
section 2, the child may belong to any of the four religions of Hindus is a Hindu. If adoption of non-Hindu child is
made the adoption would be void.
In Kumar Sursen v. State of Bihar, AIR 2008 Pat 24, it was held that under Hindu Adoption and Maintenance
Act, 1956, permits adoption by a Hindu of a Hindu child alone. Law does not recognize an adoption by a Hindu
of any person other than a Hindu. A Muslim child adopted by a Hindu can neither get caste certificate of his
adoptive parent not residential certificate.
11. Clause (ii): Adoption of an Adopted Child
Under the old Hindu law, an adopted child could not be given in adoption for various reasons. One reason was
that only the natural parent was allowed to give the child in adoption. The second reason was that the adoption
once made was final and irrevocable.4
Whatever be the reasons, under the Act also an adopted child cannot be adopted. Thus the Act gives effect to
the old law principle: no child can be adopted more than once. Under the Act also, once an adoption is made, it
is final and irrevocable. This bar applies to all adoptions. Even if a son has been adopted before the coming into
force of the Act, another son cannot be adopted after the coming into force of the Act. But, if an adoption of a
son has been made before the Act, adoption of a daughter can obviously be made after the commencement of
the Act.
If the adoption made earlier is void, then another adoption can be made.5
In our submission, there seems to be no rational or social justification for such prohibition. When natural
parents abandon their child, such a child can be provided with a home, as he can be given in adoption by the
guardian. But if adoptive parents abandon their adopted child, such a child cannot be again given in adoption.
Unfortunately, he cannot go back to the natural family as on adoption all ties in his natural family stand
snapped. Howsoever, the natural parents may desire, they cannot have him back. An abandoned adopted child
is thus left to his fate. In our submission adoption of an adopted child should not be a bar. Further in certain
circumstances an adopted child should be allowed to go back to his natural parents particularly, when the
adoptive parents ill-treat him or abandon him, the natural parents desire to have the child back.
12. Clause (iii): Adoption of a Married Child
Before the coming into force of the Hindu Adoptions and Maintenance Act, the adoption of a married male child
among all the classes throughout India was invalid except in Bombay School where adoption of married male
child was valid under custom. A married male person with children could also be adopted. The children born to
him before his adoption belonged to the natural family and children born to him after his adoption belonged to
the adoptive family.1 His wife also came to the adoptive family along with him.
Under the Act a married person can also be adopted provided custom permits such an adoption.2
13. Clause (iv): Age of the Child
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The Dharmashastra laid down that a young boy should be adopted. The rationale behind the rule is adoption of
a child of tender year will make it possible for him to adjust himself in the new family. He would feel that as if he
was born in the adoptive family.
Before the coming into force of the Act, it was a settled law throughout India and among all classes, except the
Bombay School and among Jains, that the adoption of a son among the twice born was valid if made before the
performance of the upanayana ceremony. Among the Hindus the upanayana ceremony was performed
between the age of 8 and 12 years depending to which class the child belonged. But in no case it could be
delayed beyond twelve years of age. Nand Pandit said that the adoption of a child whose age exceeded five
years was not valid.3 Devan Bhatta said that adoption must take before the expiry of the primary season for
investiture rite.4 The performance of the ceremony of tonsure in the natural family was considered as a bar to
adoption.5 This was the view held by all the High Court except the Madras High Court where the adoption of a
boy of the same gotra could take place after the performance of the upanayana ceremony.6
In Bombay School adoption of a child of any age was valid, and adoption of son older than the adopter was
also valid.7 Similarly, under Punjab customary law there was no restriction as to age, as no religious
significance was attached to adoption.1 The same was the position among Jains.
Among the Sudras a child before marriage could be adopted.
Under the Act, a child below the age of 15 years can be adopted2, but if a custom permits adoption of a child of
15 years or above, such an adoption can still be made.3 Whenever custom is pleaded it must be proved and
there is no presumption in favour of such a custom.4 In case of adoption of male over 15 years of age the
custom has to be proved by clear and cogent evidence. Adoption certificate from community produced undated
without any seal and affidavit of the person issuing the certificate.5 In Nemichand Shantilal Patni v.
Basantabai6, the adoptee was 30 years old and married. The adoptive mother was only 19 years older than the
adoptee. Since there was no custom in the community for establishing the validity of such custom, adoption
was held not valid. However a judicially recognized custom need not be proved.7 This means that a child of any
age can still be adopted in Bombay jurisdiction, among Jains and under the customary law.8 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 Parliament
was to preserve custom and usage, where such express provision in that behalf was made in the Act. (This
case and other connected cases we have discussed earlier in our commentary on section 4).
The Punjab and Haryana High Court has expressed the view that where an adult is adopted under custom, the
consent of the adoptee is essential.9
In sum:
A. The child to be adopted must be below the age of 15 years and an adoption made of the child of the
age of 15 years or above will be void.
B. If custom permits, a child of any age can be validly adopted.
14. Adoption of Daughters
Since adoption was primarily a spiritual act, in ancient Hindu law adoption of daughters was not favoured.
Daughter did not confer any spiritual benefit on the adopted. But, it is not that adoption of daughter did not take
place.10 Nand Pandit construed the word “Putra” as including daughters. He said on adoption of a daughter
spiritual benefit was derived by making a gift of her in marriage. It was further stated that through a daughter
father could get a son, putrikaputra.1 But generally the adoption of daughters was not favoured, as at best she
could confer spiritual benefit on him only indirectly.
In some cases adoption of daughter was held valid. Thus in Nawab Roy v. Bhugbutte Koonwar,2 the Calcutta
High Court held that the adoption of a brother’s daughter was valid provided that her son was made
putrikaputra. But in later cases adoption of daughter was held invalid.3 In Lalitha v. Parmeswari,4 it was held
that since prior to this Act the adoption of daughters was not permissible any amount of evidence would not
prove adoption. It may be interesting to note that adoption of daughters was recognised among he dancing girls
Page 5 of 6
provided it was not for the purpose of prostitution. If it was for the purpose of prostitution it was void being
against public policy.5
Now under the Hindu Adoptions and Maintenance Act adoption of a daughter is valid. Now a Hindu, male or
female, having capacity and right to adopt can adopt a son as well as a daughter.
1 Jogindra Majhi v. Jahaja Baliarsingh, AIR 2007 Ori 142 .

1 Dattaka Mimansa quoting Manu said that preference should be given to brother’s son. A text of Saunaka runs as under:
Among Brahamans, the affiliation of a son should be made from amongst sapindas or on failure of them, a non-sapinda may
be affiliated. Among Kshatriyas, one from their own tribes or one whose gotra is the same as that of the adopter may be
affiliated; amongst Vaisyas, from among those of the Vaisya tribe; amongst Sudras, from amongst those of Sudra
tribes; amongst all classes from amongst their respective classes not from others.
Text of Sakala runs as under:
A twice born man, being destitute of a son, should on that account, affiliate as a son the offspring of a sapinda; or also next
to him, a child of a sagotra; in default of the latter he should bring up as a son one born in a different gotra.
According to Nanda Pandit:
A sapinda of the same gotra is most preferable for adoption; on failure of him, a distant relation of the same gotra within the
degree of Samanodaka, on his failure a more distant member of the same gotra and on default of such also, one who is
neither a sapinda nor sagotra but belonging to the same caste may be adopted.
2 Uma Devi v. Cokoolmend, ILR (1978) 3 Cal 583 ; Dharma v. Ram, ILR (1866) 10 Bom 60 ; Chandra Sokhara v.
Kulandaivehi, AIR 1963 SC 185 [LNIND 1962 SC 192].
3 Sakala ordained:
A sonless twice born man shall adopt a sapinda, a son of sapinda or also next to him a son of a sagotra, shall adopt one
born of a different gotra, except the daughter’s son, sister’s son, and mother’s son.
Similarly Saunaka declared:
A daughter’s son and a sister’s son are made sons by Sudras; among the three tribes beginning with the Brahmna, a
sister’s son is not (made) son somewhere [anywhere].
4 There was some controversy among the textbook Writers:
See Sastri Sarkar, Hindu Law of Adoption 323, where he has discussed these views; See also Mayne, Hindu Law and
Usage, 11th Edn., 231.
5 In Bhagwan Singh v. Bhagwan Singh, ILR 21 All 412, the Privy Council held that adoption of daughter’s son or sister’s
son was invalid unless custom permitted such an adoption. Ishwar Parsad v. Rai Hari, ILR 6 Pat 506 to the same effect.
See also Abhi Raj Kaur v. Devendra Singh, AIR 1962 SC 351 [LNIND 1961 SC 302].
1 Dattaka Mimansa, II, 74-78, Dattaka Chandrika I, 16; Mitakshra I, xi, 9.
2 Shiv Deo Misra v. Ram Prasad, ILR (1924) 46 All 6379 .
3 A text of Budhayana runs:
Let no man give or accept an only son, as he must remain for the obsequies of his ancestors. Saunaka ordained:
By no man having an only son should be gift of an only son be ever made; by man having ‘Bahu’ sons should the gift of a
son be carefully made.
4 ILR 22 Mad 398.
5 Mitakshara I, ix, 12; see also Manu, IX, 106.
This was also the view of practically all the Smritikaras and Digest Writers and Commentators.
6 Janokee v. Gopaul, ILR 2 Cal 365; Kashibai v. Tatia, ILR 7 Bom 221.
Page 6 of 6
1 See Sarkar Sastri, Hindu Law of Adoption (1916), 356, where texts have been discussed.
2 Devgonda v. Shamgonda, AIR 1992 Bom 189 [LNIND 1991 BOM 372].
3 Apya Settya Talwar v. Rammakka Apya Talwar, AIR 1941 Bom 221 ; Tatayna v. Nakeraju, AIR 1958 AP 611 .
4 See Sastri Sarkar, Hindu Law of Adoption, (1916) 281, for the old law.
5 Bachu Abaji v. Hari Ramchandra, AIR 1932 Bom 301 .
1 Tarabai v. Bagonda, AIR 1981 Bom 13 .
2 Maya Ram v. Jai Narain, AIR 1989 P&H 202 (Jats).
3 Dattaka Mimansa, IV, 23-26.
4 Dattaka Chandrika, II, 19.
5 In Ganga Sahai v. Lakhraj, ILR 9 All 253, the court said, “According to the Hindu Law, the ceremony of upanayana
representing as it does the second birth.....is also the ultimate limit of time when a valid adoption in the dattaka form
can take place”.
6 See Vythilingo v. Vyithammal, ILR 6 Mad 43; Somesekha v. Mahadeva, ILR 53 Mad 297.
7 Lakshamappa v. Ramana, 12 Bom HCR 364.
1 Gurdatta Mal v. Chauranji Lal, AIR 1946 Lah 350 ; Hem Singh v. Harnam Singh, AIR 1954 SC 581 [LNIND 1954 SC
56]; Dhanraj v. Suraj Bai, AIR 1975 SC 1103 [LNIND 1975 SC 141].
2 M.D. Gopalaiah v. Usha Priyadarshini, AIR 2002 Kant 73 [LNIND 2001 KANT 432].
3 Sriram Jain v. Manjubai Jain, AIR 2009 Ori 104 .
4 Mahalingam v. Kannayyan, AIR 1990 Mad 333 [LNIND 1989 MAD 246].
5 Amit Chandubhai Chauhan v. Ahmedabad M.C., AIR 2011 Guj 145 [LNIND 2011 GUJ 32].
6 AIR 1994 Bom 235 [LNIND 1994 BOM 45].
7 Kondiba v. Narayan, AIR 1991 SC 1180 .
8 Balkrishna v. Sadashiva, AIR 1977 Bom 412 [LNIND 1976 BOM 272]; Haripai v. Baba Anna, AIR 1977 Bom 289
[LNIND 1976 BOM 126]; Anirutti v. Babarao, AIR 1983 Bom 391 (FB).
9 ILR (1975) 1 Punj 360 .
10 For instance King Larvapada adopted Shanta, the daughter of King Dasaratha and Kunti, daughter of Sura was
adopted by King Kunti Bhoj; Dattaka Mimansa VII, 30, 34.
1 See Sastri Sarkar, Hindu Law of Adoption 144 where he had discussed the entire matter; See also U.C. Sarkar; Epochs
of Hindu Legal History, (1958), 192.
2 S SDR 5.
3 Ghasiti v. Umraojan, ILR 21 Cal 149; Ram Piari v. Dewan Shiv Ram, AIR 1934 Lah 659 ; Gangabai v. Anant, ILR 13
Bom 690; Mathura Naiken v. Esk Naikin, ILR 4 Bom 543; Hira v. Radha, ILR 37 Bom 116.
4 AIR 2001 Mad 363 [LNIND 2001 MAD 479].
5 Kamalakshmi v. Ramaswami, ILR 19 Mad 127.
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
11. Other conditions for a valid adoption.—

In every adoption, the following conditions must be complied with:—
(i) if the 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;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least
twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least
twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian
concerned or under their authority with intent to transfer the child from the family of its birth *[or in the
case of an abandoned child or child whose parentage is not known, from the place or family where it
has been brought up] to the family of its adoption:
Provided that the performance of datta homam shall not be essential to the validity of adoption.
Comments
1. Scope
This section deals with several matters, some of which relate to right to adoption. This section also deals with
formalities necessary for a valid adoption. This section thus deals with:
Page 2 of 9
A. Right to make an adoption. This means:

(i) No Hindu can adopt a son, if he or she has a Hindu son, son’s son, or son’s son’s son living at the
time of adoption.
(ii) No Hindu can adopt a daughter if he or she has a Hindu daughter or son’s daughter living at the
time of adoption.
B. Age difference between the adopter and adoptee. This means that when a Hindu adopt a child of
opposite sex, he or she must be senior to the child by at least 21 years. In other words:
(i) When a male Hindu wants to adopt a male child, he should be senior to her by 21 years.
(ii) When a female Hindu wants to adopt a female child, she should be senior to him by 21 years.
C. Two persons cannot simultaneously adopt the same child. This will not apply when a man and his wife
adopts a child.
D. Necessary formalities or ceremonies of adoption.
A, B and C are sometimes designated as restrictive conditions of adoption.

2. Prohibition under the Shastric Hindu Law
In Abishek Sharma v. State of Uttar Pradesh, AIR 2009 All 77, the Allahabad High Court held that a conjoint
reading of sections, 6,8,9,10 and 11 of the Act clearly indicates that all conditions of valid adoption including the
capacity of taking in adoption by female or for capacity of a person who is to be adopted has been statutorily
laid down. Therefore, the entire law has to be governed on the above provisions and the prohibition in the
Shastric Hindu Law is no more in application.
3. Clause (i): Adoption of a Son
Clause (i) lays down that when a Hindu, male or female, desires to adopt a son, he or she can do so only when
he or she has no Hindu son, son’s son, or son’s son’s son, living at the time of adoption, whether by legitimate
blood relation or by adoption. Even if custom permits adoption of a male child in the presence of a son such a
custom is invalid and the adoption would be void.1 This means that existence of an illegitimate son is no bar,
irrespective of the fact whether the adopter is a male or female. In other words, if a woman has an illegitimate
son, she can also make an adoption of a son. That this position flows logically from the wordings of the clause,
and despite the fact that section 3(1)(j) of the Hindu Succession Act lays down that an illegitimate child is
related to the mother and entitled to inherit to her property along with legitimate children. The provision of
clause (j) of section 3(1) of the Hindu Succession Act is in the context of succession and not adoption, and
since clause (i) of section 11, Hindu Adoptions and Maintenance Act does not include illegitimate child, a Hindu
is not prohibited from making an adoption in the presence of an illegitimate child. If a Hindu male has an
illegitimate son, he too can make an adoption of a son. The son, son’s son, or son’s son’s son whose existence
bars adoption should be Hindu: If he has ceased to be a Hindu, then there is no bar on adoption.2 In other
words, if a person has only son’s son and he converts a non-Hindu religion, then he or she can make an
adoption of a son. In short, the son, son’s son, or son’s son’s son whose existence bars the adoption must be a
Hindu. But the term “Hindu” means as the term has been defined in section 2 of the Act. Thus conversion of
Hindu son, to Jainism, Sikhism or Buddhism would not make him cease to be a Hindu.
However, a Hindu cannot adopt a son if there exists a son of a void marriage, under section 11, the Hindu
Marriage Act or of voidable marriage (whether annulled or not). Similarly, if there is a son of dissolved marriage,
it will also bar the adoption of a son. A child of void marriage under section 11, Hindu Marriage Act, and
children of voidable marriages under section 12, are legitimate children by virtue of section 16 of the Hindu
Marriage Act even if the same are declared null or void or annulled, as the case may be.
If parents have adopted a son who dies leaving behind a son, then adoption of a son cannot be made validly,
as a son’s son bars adoption of a son.
A son, son’s son or son’s son’s son does not include a step-son, step-son’s son, or step-son’s son’s son. Thus
a widow may validly adopt a son in the presence of a step-son.1
The requirement is that the adopter should not have a Hindu son, son’s son or sons, son’s son “living” obviously
means that such a son should not be alive. But a person whose whereabouts are not known for a period of
seven years within the meaning of section 108, the Evidence Act, 1872 is not a “living” son.
Page 3 of 9
A Hindu cannot adopt a son if his or her son, son’s son or son’s son’s son is suffering from a disqualification
under the pre-Hindu succession law or under the Hindu Succession Act, 1956.
4. Clause (ii): Adoption of a Daughter
Clause (ii) lays down that when a person wants to adopt a daughter he should not have a daughter living at the
time of adoption. Such a daughter may be by legitimate relationship or by adoption. Whatever we have said in
para 2 of our commentary in respect of the adoption of a son about his Hinduness and illegitimacy will apply to
the daughter also.
As we have seen in our commentary on section 10, under the old Hindu law, adoption of daughters was not
permitted, except where a valid custom permitted such adoption. But a person may like to adopt a daughter as
much as he or she wants to adopt a son. This clause now permits a Hindu to adopt a daughter. All over the
world, there are many people who do not consider their family to be complete without a daughter, and when
one fails to beget a daughter he desires to complete his family adopting a daughter. There is no valid argument
in not having a daughter even if one has many natural born sons. The modern Hindu law permits a Hindu to
adopt a daughter.
However, a Hindu can adopt a daughter in the absence of Hindu daughter or son’s daughter. His daughter may
be by natural birth or by adoption. The same applies to son’s daughter. If the daughter or son’s daughter has
ceased to be a Hindu, then adoption of daughter is not barred. In Sandhya @ Supriya Kulkarni v. Union of
India,2 these provisions, i.e., provisions injuncting a person from adopting a second son or daughter was
challenged. It was held by the Bombay High Court that since personal laws are outside the ambit of Part III of
the Constitution, court cannot grant any indulgence though the court observed that Parliament may re-examine
the question of relaxing the condition.
It is submitted here that, even otherwise, the scope of the institution of adoption is very limited, in the sense,
that it is available only to the Hindus. It seems while enacting section 11(i) and (ii) our legislators adhered to old
Hindu law notions. But in the present day scenario, these provisions look anachronistic. These provisions
overlook the aspirations of public spirited persons and couples who want a richer and fuller family life. A couple
after having a natural son or/ and daughter may desire to have more children and instead of having them
biologically, they may want to adopt, to have a fuller family and to provide home to homeless children, but
present provisions thwart the aspirations of such persons. These provisions ought to be amended in the spirit of
the above judgment.
Existence of an illegitimate daughter or step-daughter does not bar the adoption of a daughter by a male or
female Hindu. See our commentary in para 2.
The existence of a daughter of void marriage under section 11, Hindu Marriage Act voidable marriage (even if it
is annulled) under section 12 of the Act does bar adoption of a daughter. Obviously if marriage is dissolved, the
daughter remains a daughter irrespective of the fact whether she is living with her father or mother or
separately. Any disqualification, physical or mental, under the old law or modern law by which daughter is not
entitled to inherit does not entitle any parent to make an adoption of a daughter.
Where daughter or son’s daughter has ceased to be a Hindu, an adoption of daughter can be made.
5. Clauses (iii) and (iv): Age Difference between the Adopter and Adoptee
In case adopter and adoptee are of the same sex, there is no law laying down any age difference between the
two. In such a case the only requirement is that child should be below the age of fifteen unless custom permits
otherwise.
Clauses (iii) and (iv) of the section provide that in case a male Hindu wants to adopt a female child he should
be senior to her by 21 years, and if a female Hindu wants to adopt a male child she should be senior to the
child by 21 years.1 The principle behind the rule is obvious. The institution of adoption should not be abused.
An adoption in violation of clause (iii) or clause (iv) is void.2
Interestingly, 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.
Page 4 of 9
6. Clause (v): Simultaneous Adoptions
As we have seen in our commentary on section 4, para 7, under the old Hindu law, there existed under custom
the dwyamushyayana son who was son of two fathers. Under the modern Hindu law this is not possible. Even
under the Shastric Hindu law this type of adoption was not recognised. It was recognised under custom.
Under this clause two persons cannot simultaneously adopt the same child. Obviously, two persons do not
mean husband and wife as in such a case both are adoptive parents of the child, one will be the adoptive father
and the other adoptive mother.3 Here by two persons are meant two brothers, two sisters or two friends. This
also means that the child cannot continue to be the son or daughter, as the case may be, in his natural family.
He will be the son or daughter only in the adopter’s family, and if the adopter is a single person the child will
have only one parent.
The same child can also not be successively adopted by other persons.
CEREMONIES OF ADOPTION
7. Clause (vi): Ceremonies of Adoption
Hindus considered adoption essentially as a transfer of dominion over the child from the natural parents to the
adoptive parents, and therefore, some essential formalities were prescribed to effectuate the transfer of
dominion. The Hindu sages prescribed both religious and secular ceremonies indicating that the transfer of
child by the natural parent to the adoptive parent has been made for creating the father son relationship
between the adoptive parent and the child.
A text of Budhayana runs:
One about to adopt produces two pieces of cloth, a pair of ear-rings, a ring and a priest thoroughly read in the Vedas, a
bunch of 64 stems of the Kus-grass and fuel of the purna tree. Then having invited kinsmen into the middle of the
dwelling and having set down by the direction of a Brahmin in the assembly, or in the middle of his house, having
caused law to be exclaimed, the ‘auspicious’ day ‘Benediction’, prosperity having performed rites connecting with the
recitation of the prayer ‘yaddevey-ajana’ down to the placing of vessel for water having advanced before the giver, let
him beg, “Give me thy son.” The other replies “I give”, for the sake of religious duty. I adopt the for offspring.
The Dattaka Mimansa1 said that one of two modes prescribed by Vasishtha and Saunaka was essential. The
filial relationship of adopted son was created only by the performance of proper ceremonies of adoption, which
included acceptance of the child and performance of dattak-homa. If either was wanting filial relationship failed.
Thus the Shastra prescribed two set of ceremonies:
(a) Religious ceremonies, and

(b) Secular ceremonies.
8. Religious Ceremonies
Baudhayana,2 Vasishtha3 and Saunaka4 prescribed the recital of certain prayers and Vedic hymns as part of
religious ceremonies. But in practice these were never insisted upon, though most people among the twice born
classes performed these ceremonies.
The ceremony of dattaka-homa, i.e., oblation of fire was considered both by the Dattaka Mimansa and Dattaka
Chandrika as essential ceremonies among the twice born classes.1 Nanda Pandit said:
It is therefore established that the filial relation of adopted sons is occasioned only by the proper ceremonies of gift,
acceptance, a burnt sacrifice and so forth, should either be wanting, the filial relation even fails.2
According to him a son adopted without the performance of the dattaka-homa was entitled only to his marriage
expenses and nothing else. On the other hand, Jagannath held the view that the dattaka-homa was not an essential
ceremony of adoption, and its non-performance did not defeat the adoption.3 According to Sastri Sarkar, the dattaka-
homa ceremony was used in adoption for the sake of procuring good fortune to the adoptee and not intended to be
legally essential ceremony, though it was a religiously meritorious ceremony.4
After some vacillation, the Madras High Court held that the dattaka-homa was essential. The same view was
expressed by the Calcutta and the Bombay High Courts5:
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It was a settled law that in the case of Sudras neither dattaka-homa nor any other religious ceremony was essential.6
Under the Act, the performance of dattaka-homa is not an essential ceremony of adoption among any class of
Hindus. Proviso to clause (vi) lays down, “the performance of dattaka-homa ceremony shall not be essential to
the validity of an adoption.”
9. Secular Ceremonies: Giving and Taking
The Shastras clearly laid down that the secular ceremony of giving and taking is a mandatory ceremony for the
validity of adoption. By the performance of this ceremony the transfer of dominion over the child from the
natural parent to the adoptive parent was complete and became final and irrevocable.7 In some cases a view
was expressed that if the ceremony of giving and taking was performed, then non-performance of any other
ceremony did not render the adoption invalid.8
The ceremony of giving and taking has to be performed by the person who gives the child in adoption whether
he is father, mother, or guardian, and by the person who takes the child in adoption. According to Baudhayana:
One should go to the giver of the child, and ask him, saying ‘Give me thy son!’ The other answers, ‘I give him!’ He
receives him with these words, ‘I take these for the fulfilment of my religious duties; I take these to continue the line of
my ancestors.’
The Dattaka Mimansa’s comment is as under:
It is, therefore, established that the filial relation of adopted son is occasioned only by the proper ceremonies, of gift,
acceptance, homa and so forth, should either be wanting the filial relation even fails.1
Sastri Sarkar describes the ceremony of giving and taking thus:2
The ceremonies of giving and taking are absolutely necessary in all cases. The ceremonies must not be accompanied
by the actual delivery of the child, symbolical and constructive delivery by the mere parole expression of intention on
the part of the giver and taker without the presence of the boy is not sufficient. Nor are deeds of gift and acceptance
executed and registered in anticipation of the intended adoption; nor acknowledgment, sufficient by themselves to
constitute legal adoption in the absence of actual gift and acceptance accompanied by actual delivery; a formal
ceremony being essential for the purpose.
Before the coming into force of the Hindu Adoptions and Maintenance Act, the courts took the view that the
ceremony of giving and taking is mandatory, and the ceremony of giving and taking should be performed by the
father in handing over the child to the adopter who should accept the gift of the child.3 The High Court said that
a mere declaration by the natural parent and adopter is not enough to create a valid adoption, without actual
ceremony of giving and taking.4 Other High Courts also expressed the view that the performance of the
ceremony of giving and taking was essential and enough for the validity of an adoption, no specific words need
be expressed.5
In Illachi v. Shivaram,6 the Rajasthan High Court held that giving and taking may not be by actually handing
over the child to the adoptive parents, where the natural father performs the ceremony of pouring water in the
hands of the adoptive father, when the son was himself present, there was giving and acceptance of the gift
and the requirements of Hindu law were satisfied.7 According to Nagpur High Court, the gift and acceptance
must be effected by the corporeal delivery of the boy.8
Performance of giving and taking performed, thread ceremony performed, meals served to the clan, proves
adoption.1
Hindu law does not require that there shall be any particular form so far as giving and taking are concerned,
whereby the registered deed of adoption itself mentions that the boy has been given and received in adoption,
a presumption does arise that the recitals in the deed have been truly made. Ceremony of giving and taking has
to be proved. It has to be shown that after adoption the adoptee was treated as a son. Mere placing of a
registered deed of adoption is not sufficient.2 In such cases, it is for the party challenging the adoption to rebut
the presumption and on his proving such, it is for the other party relying on the deed to prove by positive
evidence that the physical act of giving and taking did take place.3 Production of registered document of
Page 6 of 9
adoption gives rise to presumption that adoption has been made in compliance with provisions of the Act unless
disproved. Proving of giving and taking of child is not necessary.4
In Lakshman Singh v. Rup Kanwar,5 the Supreme Court observed that although no particular form is
prescribed for the ceremony and it may vary depending upon the circumstances of each case, but giving and
taking is an indispensable part of the ceremony. The Supreme Court further observed that in respect of old
adoptions, strict proof of ceremonies need not be demanded.
In Chandan Bilsini (Smt.) v. Aftabuddin Khan, AIR 2001 Gau 95 [LNIND 2000 GAU 45]; Aftabuddin Khan v.
Amaresh Sarkar,6 the adoptive mother was 84 years old and could not be brought into court for evidence.
Since it was established on record that the ceremony of giving and taking took place, the adoption was upheld.
Where reliance was placed only on an undated deed and there was no proof of actual giving and taking the
adoption was held not proven.7
Thus, the position under the old law was that actual words in the text of Baudhayana need not be used, but the
ceremony of giving and taking should take place. The same is the position under the codified law. This clause
lays down that the child to be adopted must be actually given and taken in adoption by the parents or guardian
concerned. In Urmila Devi v. Hemanta Kumari,8 since no giving and taking ceremony could be established,
adoption was not proved. In this case the child was given to uncle and aunt to be reared up as its mother had
died when the child was a few days old. There was no intention of giving it in adoption or under their authority
with intent to transfer the child from the family of its birth or in the case of an abandoned child whose parentage
is not known from the place or family where it has been brought up to the family of its adoption.
In Kuldeep Singh v. Prithpal Singh, AIR 2009 (NOC) 1423 (J&K), the Jammu and Kashmir High Court held that
adoption by way of landing over and taking over by performing religious ceremonies is a recognised mode of
adoption provided under the Act. Adoption once mode cannot be cancelled.
Under the old Hindu, some other secular ceremonies were also laid down but they were not considered to be
mandatory. Nor are these essential under the modern Hindu law.1
Burden of proof.—Burden of proof that ceremony of giving and taking took place is on the person who alleges
adoption.2 However the person who challenges adoption should prove that necessary ceremonies of adoption
did not take place.2
Strict proof of adoption is required since it changes natural line of succession. If adoption is challenged after a
long period of time, heavy burden is on the one who challenges it.3 Merely having joint account would not prove
adoption.4
Few illustrative cases are given where adoption was not proved: Adoption was not proved in the event where
no document to that effect was ever executed and in all records the name of natural father was there.5
Similarly, adoption was not proved where the son all along considered his natural mother as his mother.6 He
had made her nominee in LIC policy and provident fund. He had also performed sraddha ceremony of his
natural father.7 Expenditure incurred by the step father in the maintenance and marriage of step children does
not raise presumption of adoption.8
10. Delegation of Power
The ceremony of giving and taking must be performed:
(a) by the giver and taker, or

(b) by any other person under the authority of the giver or taker, as the case may be.
It should be noted that the performance of the ceremony can be delegated but not the power to give or take in
adoption. The power is to be exercised by the person who is entitled to give the child in adoption and the
person who wants to take the child in adoption. It seems that no specific Shastric or customary ceremony is
necessary. Performance of customary ceremony such as feeding the child in the lap or tying of pagri with or
without offering to Brahmans or the sacred fire or saffron water drinking may indicate the intention of
transferring the child in adoption but so long as the intention is manifest no particular form is necessary.1 May
Page 7 of 9
be, in the course of the time some specific ceremony evolves in modern Hindu law. The evolution of the
ceremony may be something like this: The giver of the child lifts the child in his arms and places it in the lap of
adoptive parent saying, ‘I give this child in adoption to thee’ and the taker says, ‘I accept this child as my
adopted son (or daughter).’ In a case under the old law, Vijavarangara v. Lakshman,1 where the natural mother
of the child being too sick to be able to hand over her son in adoption, requested her uncle to do so and who
actually performed the ceremony of giving on her behalf. On adoption being challenged on this ground, West, J.
observed:
The Hindu law recognises the vicarious performance of most legal acts, the object of the corporeal giving and receiving
in adoption is obviously to secure due publicity and natural mother’s employing her uncle to perform this physical act,
which derived its efficacy from her own volition accompanying it, cannot, we think, deprive it of its legal effect. We hold
therefore, with the learned Judge, that the adoption is proved that effectual.
This is the view expressed in other cases also.2 In Lakshman v. Rup,3 Subba Rao, J. (as he was then)
observed:
...............It is, therefore, settled law that, after the natural and adoptive parents exercised their volition to give and take
the boy in adoption, either of them could under certain unavoidable compelling circumstances, delegate the
performance of ceremonies to third party.
Thus, it is a settled law that performance of ceremony of giving and taking may be delegated to any person. But
power or right to give and take a child in adoption cannot be delegated. It was held in Narinderjit Kaur v. Union
of India,4 that in case where the child was given in adoption willingly by its natural parents and taken in
adoption by the adoptive mother through her attorney, the adoption was valid.
11. Consent of the Child
Nowhere the Act lays down that the consent of the child to be given in adoption is necessary. In fact, the child
need not be consulted. Even the protest of the child is immaterial. When a parent gives the child in adoption, no
order of the Court is required. However, in Dhanraj v. Suraj,5 it was argued before the Supreme Court that
where under custom an adult child is given in adoption his consent was necessary. The Supreme Court did not
answer the question. It is said that in every case the ceremony of giving and taking should take place, whether
the child is adult or minor, and that is enough to complete the adoption.6 We may recall that when guardian
gives the child in adoption, an order of the court is necessary and no court will pass an order, unless adoption is
considered to be for the welfare of the child. But it is not needed when the parent gives the child in the
adoption.
* Ins. by Act 45 of 1962, sec. 4 (w.e.f. 29-11-1962).

1 Krushna v. Narana, AIR 1991 Ori 134 .
2 Vittal v. Ausha Bai, AIR 1977 Bom 298 [LNIND 1976 BOM 256].
1 Radha Krishna Mohapalia v. Bhuyan Srishyam Sunder Mohapalia, AIR 1964 Ori 136 [LNIND 1963 ORI 99].
2 AIR 1998 Bom 228 [LNIND 1997 BOM 1099].
1 Hanumant Laxman Salunke v. Shrirang Narayan Kausa, AIR 2006 Bom 123 [LNIND 2005 BOM 1272].
2 Golak Chand v. Krutibas, AIR 1979 Ori 205 [LNIND 1979 ORI 35].
3 Kasturi v. Pannamal, AIR 1961 SC 1320 [LNIND 1961 SC 111].
1 See Dattaka Mimansa, V, 42. According to Saunka:
I, Saunka, will now declare the best mode of affiliating a son, One, having earnestly invited the agnate and cognate
relations......having performed the rites....... having advanced before the give, should ask through the giver being
capable of making gift should give to him with the recitation of fine ‘risks’ commencing with ‘Ye Yajnena’ having taken to
Page 8 of 9
boy with both hands, with the recitation of Mantra or prayer.......having brought him accompanied with dancing songs
and valedictory words, within the house.......having performed the homa or burnt sacrifice with the holy texts........should
complete the remaining part of the ceremony. Dattaka Mimansa, V, 2-12.
2 Dattaka Mimansa, V, 12.
3 Vasishtha, XV, 6-14.
4 Dattaka Mimansa, V, 2-21.
1 Dattaka Mimansa, V, 50-56, Dattaka Chandrika, II, 16-17.
2 Dattaka Mimansa, V, 46.
3 See Sarkar, Hindu Law of Adoption, 380.
4 Sarkar, Hindu Law of Adoption, 379.
5 Venkata v. Subhadra, ILR (1884) 7 Mad 548 ; Govindayyar v. Dorasami, ILR (1888) 11 Mad 51 ; Ranganayakamma v.
Alwar, ILR (1890) 13 Mad 214 ; Subbarayar v. Subbarmmal, ILR (1898) 21 Mad 497 ; Shosinath v. Krishna, ILR 6 Cal
381; Govind Prasad v. Rindabai, ILR (1925) 49 Bom 513 ; Haridas Kisandaas v. Narayandas, AIR 1940 Bom 181 .
6 Narain Mitter v. Sreemurthy Kishan, ILR 28 Cal 168 (PC); Balgangadhar Tilak v. Shrinivas, AIR 1915 PC 7 .
7 Mahashya Shosinath v. Sirmathi Krishna, ILR (1881) 7 IA 250 ; Brishwar v. Andha, ILR (1892) 19 Cal 452 .
8 For instance see, Indramoni Chowdhri v. Bihari Lal Mallick, ILR 5 Cal 776.
1 Dattaka Mimansa, V. 50.
2 Sastri Sarkar; Hindu Law of Adoption, 194.
3 Siddessory Dossee v. Doorgacharan Dass, 2 IJ (NS) 22; Sosinath v. Krishna ILR 6 Cal 381.
4 Govindayyar v. Dorsami, ILR 11 Mad 5; Ishwari Prasad v. Raj Hari Mal, AIR 1927 Pat 145 .
5 Ghissai Ram v. Barey Lal, AIR 1942 Oudh 490 ; Maroti Bangi Teli v. Radhabai, AIR 1945 Nag 65 .
6 ILR (1957) Raj 659.
7 ILR (1959) Raj 659.
8 Shanker v. Mst. Savitri, 50 IC 599.
1 Khagenban Sadhu @ Rajbei Singh v. Khageban Ibohar Singh, AIR 2001 Gau 95 [LNIND 2000 GAU 45].
2 Dhanno v. Tuhi Ram, AIR 1996 P&H 203 .
3 Bhajan Das v. Nanuram, AIR 1954 Raj 17 [LNIND 1952 RAJ 169].
4 Shivada Ramaswami v. Karada Surya Prakasa Rao, AIR 1993 AP 336 [LNIND 1993 AP 47].
5 AIR 1961 SC 1378 [LNIND 1961 SC 129].
6 AIR 1998 SC 591 [LNIND 1997 SC 1685].
7 Raghunath Behera v. Balaram Behera, AIR 1996 Ori 38 [LNIND 1995 ORI 36].
8 AIR 1993 Ori 213 [LNIND 1993 ORI 106].
1 Lakshman v. Rup, AIR 1961 SC 1378 [LNIND 1961 SC 129].
2 Pabbathi Reddy Sudershan Reddy v. Pabbathi Reddy Sashirekhamma, AIR 1996 AP 300 [LNIND 1995 AP 613]; Arjun
Banchhor v. Buchi Banchhor, AIR 1995 Ori 32 [LNIND 1994 ORI 25].
3 Srinivasan v. John Bentic, AIR 1989 Mad 334 [LNIND 1988 MAD 432].
4 Nilima Mukherji v. Kanta Bhushan Ghosh, AIR 2001 SC 725 .
5 Devgonda v. Shamgonda, AIR 1992 Bom 189 [LNIND 1991 BOM 372].
6 Suma Bewa v. Kunja Bihari Nayak, AIR 1998 Ori 29 [LNIND 1997 ORI 102].
7 Prafulla Bala Mukherji v. Satish Chandra Mukherji, AIR 1998 Cal 86 [LNIND 1997 CAL 251].
8 Ram Das v. Gandiabai, AIR 1997 SC 1563 [LNIND 1996 SC 1930].
1 2 Bom HCR 244.
Page 9 of 9
2 Lakshmibai v. Ramchandra, ILR (1898) 22 Bom 590 ; Saptappayya v. Rangappayya, ILR (1892) 18 Mad 379 ;
Viyyamna v. Suryapra Ksorao, ILR (1942) Mad 608; Govindram v. Sheoprasad, AIR 1948 Nag 398 .
3 AIR 1961 SC 1378 [LNIND 1961 SC 129].
4 AIR 1997 P&H 280 .
5 AIR 1975 SC 1103 [LNIND 1975 SC 141]. See Vepal v. Bhalla, (1973) 75 PLR 232.
6 The Rajasthan High Court in Dhanraj v. Suraj Bai, AIR 1973 Raj 7, said that ceremony of giving and taking is essential
even if the “child” is adult, as expression “child” in the clause will also include an adult adoptee.
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
12. Effects of adoption.—

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 cannot marry any person whom he or she could not have married if he or she had continued
in the family of his or her birth;
(b) any property which 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.
Comments
1. Scope
This section, in its one aspect, confirms, the pre-Act position that on adoption a child for all intents and
purposes becomes the child of not merely of adopters or adopter (in case a single person adopts a child) but
also of the adoptive family and all his ties with the natural family come to an end from the date of adoption. In its
other aspect, it changes the old law in the sense that the doctrine of relating back has been abolished. Thus,
under the first para of the section adoption will have the following effects:
(a) The adopted child, boy or girl, for all purposes be deemed to be the child of its adoptive parent or
parents.
(b) All the ties of the child in the natural family will stand terminated from the date of adoption, except the
ties of blood for the purpose of marriage.
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(c) All the ties of the child will come into existence in the adoptive family from the date of adoption (This
should be read subject to what has been held by the Supreme Court in Sawan Ram v. Kalwati, see
note).
2. Child’s Position in the Natural Family
Under Hindu law, both old and new, the adoption of child means that the child is totally uprooted from the
natural family and transplanted in the new family.
(a) Relationship with Members of the Natural Family
For secular, religious and civil purposes the adopted child ceases to be the child of the natural family. His father
and mother cease to be his parents and all relations on the father’s side and mother’s side cease to be his
relations. Only tie that he retains with his natural family is that he cannot marry any person in his natural family
whom he could not have married before his adoption.
The natural parents’ right of guardianship ceases with effect from the date of adoption, whatever be the age of
the child. The child given in adoption is not entitled to take share in natural parent’s property1. Even if the child
is below five years, its natural mother cannot claim its custody [which she would be entitled to otherwise under
the proviso to section 6(a), Hindu Minority and Guardianship Act, 1956]. When adoption of a married person is
permitted that person cannot give in adoption his child born to him prior to adoption,2 though a contrary opinion
was expressed in a case under old law.3
(b) Divesting of Property
Clause (b) of proviso to section 12 of the Act provides that “any property which 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.” Thus
any property that the child inherited from any relation before adoption will continue to be his property even after
adoption.4 For instance, two brothers X and Y inherited property from their mother. Subsequently, the father
gave away X in adoption. X will continue to be the owner of the property inherited by him from his mother
before adoption. Or, take another example, the maternal grandfather of X died leaving behind a widowed
daughter-in-law P, who has a right of maintenance against the grandfather. X inherited the property.
Subsequently X is given away in adoption. X will retain the property inherited by him from his maternal
grandfather, though he will be required to provide maintenance to P, so long as she is entitled to it.
A son has an interest by birth in the Mitakshara joint family property. Such an interest does not vest any
property in him.1 Therefore, if such a son is given in adoption his interest together with any liabilities, attached
thereto cease on his adoption. His position is as if he died at the time of adoption. Under the Dayabhaga2
school this is not the law. Share of a Dayabhaga coparcener in the coparcenary is not a mere interest. It is a
property vested in him. Therefore, if a Dayabhaga coparcener is given away in adoption he would continue to
retain his share in the coparcenary property.
3. Child’s Position in the Adoptive Family
The adopted child is deemed to be the child of the adopter for all purposes. His position for all intents and
purposes is that of a natural born son; he has the same right, privileges and the same obligation in the adoptive
family.3
(a) Relationship with the Members of the Adoptive Family
The adoption in Hindu law means complete transplantation of the child in the adoptive family. This means that
he is not merely the child of the adoptive parents but he is also related to all relations on mother’s side as well
as father’s side as if he is the natural born child of the family. Thus, father’s and mother’s parents are his
grandparents. His adoptive parents’ daughter is his sister and so on. But under the modern law as well as
under the old Hindu law if an unmarried person, a bachelor or a virgin, adopts a child, the latter will have only
one parent, adoptive father or adoptive mother, and he will have only one line, paternal or maternal, as the case
may be. For example, if a virgin adopts a son the child will have only maternal side, i.e., his adoptive mother’s
parents will be his maternal grandparents, but he will not have any paternal side, as the child has no father.
Under the old law in respect of widow’s adoption the doctrine of relating back applied and the child was deemed
to be the child of her deceased husband. The doctrine of relating back has been abolished, but the Supreme
Court has taken the view that even now the deceased husband of the widow is the adoptive father of the child.4
(See supra, under the title: Relationship of adopted child.)
Page 3 of 18
Since all ties come into existence in adoptive family, the adopted child cannot marry any person (whether by
natural birth or adoption) in the adoptive family, whom he would not have married had he or she been a natural
child of the family.
(b) Guardianship, Inheritance and Maintenance
The adoptive parents are the natural guardians of their adopted minor child, first the father, then the mother. If
the adopted child is less than five years, then the adoptive mother will have preferential claim to the custody of
the child.
The position of an adopted child in respect of inheritance and maintenance is the same as that of the natural
born child. If there is an adopted child and a natural child, both will inherit equally. The adopted child has the
right of collateral succession both on his adoptive mother’s side and adoptive father’s side. In short, he will
inherit in the adoptive family as if he is born in the adoptive family. Conversely, all persons are entitled to
succeed to him, if they would have succeeded to him had he been a natural child.
Similarly, his position is that of natural born child for the purposes of maintenance. He can claim maintenance
against his adoptive parents or against any person, against whom a natural child could have claimed
maintenance. Conversely, he is liable to maintain all those persons whom a natural child has an obligation to
maintain. The adopted child’s right of maintenance ceases on his attaining majority.1
An adopted son can also exercise the right of pre-emption. Under the Punjab Pre-emption Act ‘father’ and ‘son’
include adopted son and adoptive father.2
4. Clause (a) of proviso: Prohibition from Marrying in the Natural Family
The total uprooting of the child from its natural family and its transplantation in the adoptive family, does not
mean that all ties of blood are snapped. The tie of blood for the purposes of marriage is retained. The child
cannot marry any person in his natural family whom it could not have married have he not gone out in adoption.
This means that the child retains sapinda relationship and degrees of prohibited relationship in his natural
family for the purpose of marriage.
5. Clause (b) of proviso: Divesting of Property
Clause (b) of proviso to the section lays down that if in the natural family some property was vested in the child
before adoption that will remain vested in him and he cannot be divested of it just because he has gone out in
another family in adoption. Further, if any such property vested in him was subject to some obligation, such
obligation will continue to attach to the property even after his adoption. Such an obligation may be relating to
the maintenance of any member of his natural family. Such an obligation he will be bound to perform even after
his adoption. But he will be required to discharge the obligation only out of such property.
In Y. Nayudamma v. Government of Andhra Pradesh,3 the question before the court was: when a member of a
coparcenary governed by the Mitakshara law is given in adoption, whether his undivided interest in the
coparcenary property would continue to vest in him even after adoption by virtue of clause (b) of proviso to
section 12? In this case one Nayudamma had two sons, S and S, and his widowed mother M. S was given in
adoption to Rattamma. In land ceiling proceedings, it was contended that S share has to be excluded as this
share was vested in him and he could not be divested of this share. S.V. Gupta has expressed the view that
under clause (b) of proviso to section 12, the undivided interest of a Mitakshara coparcener being vested in him
would pass on with him as if he had separated from the coparcenary. Mulla has expressed a contrary view.
According to the learned editor of Mulla’s Hindu law the undivided interest of a Mitakshara coparcener is not
vested in him and consequently on his adoption his interest will remain in the joint family. On this controversy
the Andhra Pradesh High Court observed:
The texts of Mitakshara Law.......are emphatic with regard to the vesting of the property in the coparcener. The property
vests in the coparcener by birth, and hence he gets a vested interest in that property by virtue of inheritance. The
position would have been probably different, if proviso (b) was not enacted in section 12.
In conclusion the court said that the coparcenary interest is a vested interest and even on adoption it remains
vested in him.
Har Chand v. Ranjeet,1 is a simple case. In this case, 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
Page 4 of 18
adoption, he left the natural family and all his ties were severed. Rejecting this argument, in our submission
rightly, 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 cannot be divested of this property.2
Section 12(c) specifically lays down that ‘the adopted child shall not divest any person of any estate which
vested in him, or her before the adoption’.3 The old Hindu law of divesting of property on adoption was very
complicated and a source of constant litigation. Under the Modern Hindu law this source of litigation and
consequent dissentions in Hindu families have been done away with by laying down that the adopted child
cannot divest any person of the properties vested in him or her before adoption. For instance, A died leaving his
widow B and two daughters X and Y. On A’s death B, X and Y inherited properties of A, each taking 1/3 share.
This one-third share vests in each of them immediately on the death of A. If now B adopts a son P, P cannot
divest B, X or Y.
The question of divestment has arisen in some cases in connection with an adoption made by a widow. The
question is: does a child adopted by a widow also become the child after her deceased husband? If he does,
the question of divesting may arise in some situations. We would review these cases. But before we do so,
summary of law of adoption by one for another under the old Hindu law may be given.
6. Adoption of a Child by one for Another
The following two propositions were well-settled in old Hindu law: (i) a parent could not delegate his authority to
give the child in adoption or to take a child in adoption;1 and (ii) the physical act of taking or giving could be
delegated to another person.2 In other words, the old law stipulated that the authority to give or take a child in
adoption could not be delegated, a person must himself exercise the authority to take or give the child in
adoption. But once a person decided to take or give a child in adoption, he could delegate the physical act of
giving and taking the child in adoption. Thus, when a sick, aged or infirm person adopted a child, he adopted
the child to himself or herself, though on account of age, infirmity or sickness he or she was free to delegate the
performance of the ceremonies of adoption: in such a case the adoption was made by the person to himself
though the ceremonies were performed by someone else.3It seems that these propositions are given statutory
form in section 5 of the Hindu Adoptions and Maintenance Act, 1956. It is submitted that this is what is meant
when the section says that no adoption “shall be made...........by or to a Hindu.......” However,Sawan Ram v.
Kalawati,4 Bhargava, J., of the Supreme Court thinks that two kinds of adoption are visualized: One is an
adoption by a Hindu and the other is an adoption to a Hindu. The learned Judge gives the following instances of
the latter: when a female Hindu whose husband is dead, has finally and completely renounced the world, or has
been declared by a court of competent jurisdiction to be of unsound mind, adopts a child, then such an adopted
son will be the adopted son of her husband.
It is submitted that under the modern Hindu law one spouse cannot adopt to another. When a married Hindu
male adopts a child, he can do so only with the consent of his wife; in the absence of wife’s consent adoption is
null and void.4 Since the adoption is made by the Hindu male with the consent of his wife, he becomes the
adoptive father and his wife becomes the adoptive mother.5 A married Hindu female is not allowed to adopt at
all,6 and if she adopts a child with the consent of her husband, the adoption is null and void. This is the entire
law relating to adoptions by married person whose another spouse is living and is a normal person.
As we have seen, only in three abnormal cases a married spouse can adopt during the life-time of the other
spouse and without his or her consent, and probably despite his dissent. These cases are: (1) when the other
spouse has completely and finally renounced the world (i.e. has become a sanyasi or yati), (ii) when the other
spouse ceased to be a Hindu, and (iii) when the other spouse has been declared by a court of competent
jurisdiction to be of unsound mind.1 With due deference to Bhargava, J.,2 in such cases the child will have no
relationship with the other spouse of the adopter. Any other view is likely to result in anomalies and absurdities.
Thus, a childless married woman whose husband has become a sanyasi adopts a son and a daughter and if
we hold that such a child will be related to the other spouse, it would mean that the sanyasi has been blessed
with a son and a daughter. Similarly, if a childless married Hindu wife whose husband has become a Muslim
adopts a child then it would mean that a Muslim has an adopted son, even though by his personal law a Muslim
is not allowed to adopt. Similarly, if a childless married Hindu female whose husband has been adjudicated as a
person of unsound mind, adopts a daughter, then it would mean that an insane person has an adopted
daughter, even though under Hindu law, an insane person has no capacity to adopt. Thus, by this process, a
sanyasi, a Muslim and a person of unsound mind have been allowed to have an adopted child.
7. Adoption by a Single Person and Doctrine of Relating Back
It is an established position in the modern Hindu law that a widow, a widower, a spinster and bachelor have
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capacity to adopt. In such cases the question that arises is whether the child adopted by a single person has
any relationship with the ex-spouse of the adopter or with the future spouse of the adopter? Or, the question
may be passed as under:
(a) When widow (or widower) or divorcee adopts a child, then what is the relationship of the child, if any,
with the deceased spouse or with the divorced spouse?
(b) When a person (widow, widower, divorcee, spinster or bachelor) adopts a child and subsequently
marries then what will be the child’s relationship with the subsequently married spouse?
To the question posed in (b) the Hindu Adoptions and Maintenance Act, 1956 provides a direct answer by
laying down that in all such cases the subsequently married spouse will be a step-parent of the adopted child.3
No direct answer has been provided to the question posed in (a) by the Hindu Adoptions and Maintenance Act,
1956. The question may arise in three situations: adoption by a divorcee, adoption by a widow, and adoption by
a widower. In the first situation the answer seems to be clear and adopted child of the divorcee will stand in no
relationship with the divorced spouse. Then should our answer in other two situations be different? The
question in the second situation has come up before some of our High Courts4 and the Supreme Court.5
The question came up before the Bombay High Court in Ankush v. Jenabai,1 where a Hindu, N died leaving
behind two widows, L and T and a daughter J from L. The senior widow, L, died in 1938. The junior widow, T,
adopted the plaintiff as her son in 1957. The plaintiff filed a suit for the recovery of possession of all the
properties of N, including those alienated by the widows, on the plea that he was not merely the adopted son of
T but also of N. Applying the provisions of section 12 of the Hindu Adoptions and Maintenance Act, 1956, the
trial court came to the conclusion that the child was the adopted child only ofT and not of N, since under that
section the adoption was effective from the date on which it is made. The trial court was clearly of the view that
the doctrine of relating back was no longer operative. On appeal, the Bombay High Court came to the opposite
conclusion.
Building his arguments on the premise that “the adopted child is for all purposes absorbed in the adopting
family”2, Desai, J. came to the conclusion that an adopted child of the widow was absorbed in the adoptive
family to which the widow belonged, i.e., the family of her deceased husband, the adopted child being “tried
with the relationship of sonship with the deceased husband of the widow and the other collateral relations of the
husband of the widow.” With least hesitation the learned Judge observed: “We have no doubt that on a widow
adopting a son the necessary consequence that arise under the provisions of the Act is that the child would be
the adoptive son of the deceased husband.” The Allahabad High Court also reached the same conclusion on
slightly different facts.3
Thus the doctrine of relating back was resurrected.
The Andhra Pradesh High Court in Hanumantha Rao v. Hanumayya,4 took a contrary view. In this case, A and
his two sons B and C were members of a Hindu joint family. B died in 1924 leaving behind his widow D. D
adopted a son E in 1957. E filed a suit against C and his son for partition and claimed possession of half a
share in the properties (A had died earlier). The trial court held the adoption valid, but said that the adopted son
could not divest C and his son of the properties already vested in them before adoption. This decision was
upheld by the High Court. His Lordship said that even by a cursory reading of section 12 of the Hindu Adoptions
and Maintenance Act, 1956, it was abundantly clear that the adopted child was deemed to be the child of his or
her mother or father: That this was so was clearly indicated by a word, “or” between father and mother. And this
was further clear from the words, the adoption was effective “with effect from the date of adoption.......On a fair
interpretation of the provisions of section 12 of the Act, we are of the opinion that the section has the effect of
abrogating ordinary rule of Mitakshara law that, as a result of the adoption made by the widow, the adoptee
acquires rights to the share of his deceased adoptive father which had passed by survivorship to his father’s
brothers.”
The question came before the Supreme Court in Sawan Ram v. Kalawanti.1 In this case a reversioner had
challenged certain alienations made by the widow to one Ramjidas. The reversioner’s suit was decreed. The
widow filed an appeal to the High Court and while the appeal was pending, adopted one Deepchand as her
son. The appeal was dismissed by the High Court. When in 1959 the widow died, the reversioner brought a suit
for possession of all the properties of Ramjidas. The trial court dismissed the suit on the ground that
Deepchand, the adopted son, had preferential claim to the properties of Ramjidas over the reversioner, since
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he was not merely the adopted son of the widow but also of her deceased husband. The High Court confirmed
the decision of the trial court. The reversioner preferred an appeal to the Supreme Court.
In the Supreme Court, Bhargava, J. referred to Hanumantha Rao v. Hanumayya,2and expressly dissented from
the view taken therein. Analysing section 4(1) of the Hindu Adoptions and Maintenance Act, 1956, the learned
Judge said that the section envisages two kinds of adoptions: (i) an adoption by a Hindu, and (ii) an adoption to
a Hindu. The instances of the latter, according to his Lordship, are: adoption by a female whose husband is
dead, or has completely and finally renounced the world, or has been declared to be of unsound mind by a
court of competent jurisdiction, or has ceased to be a Hindu by converting to another religion. In these cases
the adopted son of the Hindu female will also be a son of her deceased,sanyasi, instance or non-Hindu
husband. This argument was further fortified by section 12 which lays down that from the date of adoption 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 adoption in the adoptive family. This led his Lordship into the search of the family of the widow or the
family of the husband of the Hindu female whose husband has became a sanyasi, or has become a non-Hindu
or has been adjudicated to be of unsound mind by a court of competent jurisdiction. The learned Judge had no
hesitation in saying that on marriage the family of a Hindu female is the family of her husband, and therefore
the child adopted by her must belong logically to the same family. His Lordship observed: “On adoption by a
widow, therefore the adopted son is deemed to be a member of the family of the deceased husband of the
widow......the rights, which the child had, to succeed to property by virtue of being the son of natural father, in
the family of his birth, is thus, clearly to be replaced by similar rights in the adoptive family, and consequently,
he would certainly obtain those rights in the capacity of a member of that family as an adopted son of the
deceased husband of the widow.”3
It is submitted that the construction placed by the learned Judge on the provisions of the Hindu Adoptions and
Maintenance Act, 1956 is rather artificial and does not appear to be socially desirable either. It is clear even
from a cursory perusal of the provisions of the Act that now a widow has the right to adopt in her own right, and
in those cases where a person leaves behind more than one widow each widow will have the right to adopt. It
cannot be said that only the seniormost will have the right of adoption. Nor could it be said that the son adopted
by the seniormost alone will be the adopted son of the deceased husband and the sons adopted by other
widows will be his step-sons. (Since the learned Judge insists that the child must be related to the deceased
husband of a widow.) It is submitted that this double fiction is nowhere warranted from the provisions of the Act.
We may illustrate some of the anomalies that are likely to arise by placing Bhargava, J’s construction on the
provision. If a Hindu dies leaving behind three widows and no issue, then each of the widows can adopt a child
(or even two children, one son and one daughter). Suppose these widows adopt children to themselves, then
all the children will also be the adopted children of the deceased husband of the widows. In other words, the
deceased Hindu male will have at least three (or six) adopted children. Or, a Hindu dies leaving behind two
widows and an adopted son (adopted by him during his life-time with the consent of both his wives). Now if the
junior widow exercises her right of adoption (The senior widow cannot exercise this right, since on adoption
byA, she, being the senior wife, became the adoptive mother of the child) and adopts to herself a daughter and
a son, then the deceased male Hindu will have two adopted sons and an adopted daughter! Or, suppose a
Hindu dies leaving behind a natural son from his pre-deceased wife and a widow (whom he had married after
the death of his first wife). Now suppose his widow (who has no child and therefore has a right of adoption)
adopts a son. The result will be that the deceased Hindu will have a natural son as well as an adopted son.
Thus, the artificial construction placed on the provisions of the Hindu Adoptions and Maintenance Act, 1956
enables the deceased male Hindu to perform those feats which he could not have performed during his life-
time.
It is submitted that the construction placed by the learned Judge on the provisions of the Hindu Adoptions and
Maintenance Act, 1956 does not flow logically from them and is not tenable. Fortunately, in this case the
question of divesting anybody did not arise and, therefore, there was no violation of the provisions of clause (c)
of proviso to section 12 which lays down that “adopted child shall not divest any person of any estate vested in
him or her before adoption.” In this case the Hindu male had died in 1948 leaving behind a widow and no one
else. This resulted in the widow taking the property of the deceased male Hindu by succession and taking it as
a Hindu woman’s limited estate. In 1954 (i.e., before the coming into force of section 14, Hindu Succession Act,
1956) the widow made a gift of certain land to her grand-niece (who was the mother of the child whom she
adopted during the pendency of reversioner’s appeal). Since she had no such power of alienation, the gift had
to be held void by the court. These lands were not in her possession but in the possession of her grand-niece
when the Hindu Succession Act, 1956 came into force, and therefore, these lands could not become her
absolute property, in terms of section 14, the Hindu Succession Act, with the result that old law applied to the
land.1 The adopted son could not claim these lands, in the capacity of the adopted son of the widow, but he
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could claim them as the son of the deceased husband, since in such a case he would be the nearest
reversioner. It was in these circumstances that the Supreme Court held that the adopted son of the widow was
also the adopted son of her deceased husband, and thereby enabled him to take the lands in preference to the
reversioners.
It is submitted that the basic flaw in the argument lies in the assumption that husband’s family is the family of
the widow. There is no doubt that on adoption a child becomes the member of the family of the adopter.1 But
the vital question is: which is the family of adopter? When a Hindu male adopts a child, we have no difficulty in
saying that it is his family to which the child belongs, whatever might be the nature of his family, i.e., it may be a
single man’s family (bachelor’s or widower’s) or it may be a Hindu joint family to which he belongs. When a
spinster adopts a child, again we have no hesitation in saying that it is her family to which the child belongs,
and we do not say that the child belongs to her father’s family to which broadly speaking she belongs. Similarly,
when a divorced woman adopts a child, we say that the child belongs to her family and we do not say the child
belongs to her father’s family to which she might have reverted, or the her divorced husband’s family which she
had left. But when a widow makes an adoption, we say (almost like a reflex action) that the child belongs to her
husband’s family. The reason seems to be the hang-over of the past legal notions and social values. Hindu law
has always maintained that on marriage the girl completely passes from the family of her father to the family of
her husband, so much so that it is her husband’s gotra which becomes her gotra and her husband’s relations
become hers.2 And, in case she becomes a widow in her minority, the guardianship of the person as well as of
property belongs not to her parents but to her husband’s relations.3 This notion is further fortified by another
notion that a woman is never free: during maidenhood she is under the subjugation of her father, during
coverture under the subjugation of her husband, and during widowhood under the subjugation of her son or
other relations of the husband.4 From these notions flow the inevitable conclusion that the Hindu widow cannot
have her own independent home. Beneath these notions, is the concept of Hindu law that Hindu marriage is a
sacrament and an indissoluble union.5 This means that death does not dissolve the marriage. A Hindu female
who becomes a widow continues to be the wife of her deceased husband, and therefore continues to be the
member of her husband’s family. The doctrine of adoption by widow and the relating back were the natural
corollaries to these notions. These notions are no longer valid, but old beliefs still cling to us. Today (i.e., from
the date of coming into force of the Hindu Widow’s Remarriage Act, 1856)—a widow can remarry,6 and it is no
longer true that after the death of Hindu male his widow continues to be his wife. The other aspect of
sacramental marriage, i.e., it is an indissoluble union also stands abrogated with the statutory recognition of
divorce.1 Thus, today the position of Hindu widow is largely that of a divorcee. If this is so, then why should we
insist that the Hindu widow’s family is that of her husband? Why should we not say plainly that her family is her
own family? If a divorced woman can have her own family, if a spinster can have her own family, then, it is
submitted, we should have no hesitation in saying that a widow, too, can have her own family.
The second fallacy seems to be a quest to find out both the parents of the adopted son of the Hindu widow.
Section 12 lays down that all the ties of an adopted child are created in the adoptive family as if the child is a
natural born child in the adoptive family. The ties that can be created in the adoptive family can be only those
which the state of the family of adopter permits. If a bachelor adopts a child, the child cannot be provided with
an adoptive mother; if a spinster adopts a child, the child cannot be provided with an adoptive father. Similarly,
when a widow adopts a child, an adoptive father cannot be provided to the child.
Under the modern Hindu law an adoption cannot be pre-dated. Section 12 clearly lays down that the adoption
will be effective from the date on which it is made. An adopted child is like a natural child from the date of
adoption. Suppose a Hindu dies leaving behind a widow and no child on 1-1-1957. The widow makes an
adoption on 1-7-1975. If the Hindu male is to be considered to be the adopted child of the deceased of the
widow, then we have to pre-date the adoption. This would mean the re-creation of the doctrine of relating back
which has been expressly abrogated by the Hindu Adoptions and Maintenance Act, 1956.2 The Supreme
Court’s decision in Sawan Ram v. Kalawati3 has (it is submitted) wrongly resurrected the doctrine of relating
back.
The Hindu Adoptions and Maintenance Act, 1956 permits an issueless widow to make an adoption. In this
regard now the law is uniform all over India, with the result that a widow governed by the Mithila school of
Hindus has also power to make an adoption. Under the old Hindu law, with the exception of the Mithila school,
a widow could adopt only if her husband had authorised her to make an adoption. Today she can adopt even if
her husband has expressly prohibited her from making an adoption. If we hold that a child adopted by a widow
is her husband’s son, then in this case also the child will be the adopted child of her deceased husband. This
will mean that what she could not do in the life-time of her husband (i.e., to compel her husband to adopt a
child), she can do so after his death. She can thrust a son on her deceased husband. It is evident that under
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the Hindu Adoptions and Maintenance Act, 1956 (the learned Judge does not say so) no distinction can be
made between two cases: when a husband expressly or impliedly prohibits his widow to make an adoption and
when he dies without saying anything. We cannot say in the latter case that the child adopted by the widow will
be the adopted child of the husband, while in the former case he will not be. Even under the old Hindu law there
was no such distinction. In the Bombay school she could adopt without the authority of her husband. But there
too if her husband had prohibited her, expressly or impliedly, from making an adoption, she could not make an
adoption.1 And then, in those cases where the husband expressly directed that after his death his widow
should make an adoption, there is nothing in the modern law, as there was nothing in the old law, which could
compel the widow2 to make the adoption. In the modern Hindu law, even when the widow adopts the adopted
child cannot be considered to be the child of her deceased husband, since a Hindu who makes an adoption
adopts to himself or herself.3 Under the old Hindu law the child adopted by the widow became the child of her
deceased husband by the fiction that the adoption made by the widow was in fact made on behalf of her
husband. She adopted the child to her husband, as she could not adopt to herself.4
There is yet another aspect of the matter. If what Bhargava, J., says in respect of the adoption of a widow is
correct then it should also apply to the converse case. When a widower adopts a child, then his deceased wife
should be considered to be the adoptive mother. It has been seen earlier that such an argument was repelled
by the court under the old Hindu law. The Supreme Court and the High Courts of Allahabad and Bombay5 have
built up their arguments on the basis of section 12 that all ties of adopted child are created in the adoptive
family and on the assumption that widow’s family is her husband’s family. When a widower adopts a child, child
obviously belongs to the adopter’s family, i.e., the widower’s. Then, the question is: does widower’s family
include his deceased wife? Had the question come before the Supreme Court in this form, it is submitted that
the court would have, without hesitation, answered the question in the negative, as an affirmative answer would
have resulted in more problems than it would have solved. For instance, a widower who remarries and adopts a
child with the consent of his wife, then the latter will be the adoptive mother of the child. But if we retain the
fiction that the deceased wife is also the member of the family of the widower then she, too, would be the
adoptive mother of the child: thus the child will have two adoptive mothers. This question in this form will not
arise in respect of a widow who had remarried, since a married woman has no right to make an adoption. It is
submitted the court would have the least hesitation in saying that on remarriage a widow belongs to the family
of her second husband and she had no ties with the family of her deceased husband. The moment she
becomes a widow, she acquires the right of adoption. This obviously implies that she has become independent
of her deceased husband and can have her own independent family. If we would insist to say that she
continues to belong to the family of her deceased husband till she remarries, then we would have to say this
also that in case her deceased husband prohibited her from making an adoption, she cannot make an adoption.
It is submitted that it is a hang-over of the past that has led the Supreme Court and the Allahabad and the
Bombay High Courts in the quest of adoptive father. However, this theory would apply on pre-Act adoption.1
Thus, it is submitted that the entire scheme and the express provisions of the Hindu Adoptions and
Maintenance Act, 1956 clearly negative any suggestion that the child adopted by a widow is the child of her
deceased husband or that a child adopted by a widower is an adopted child of the deceased wife of the
widower. Section 12 expressly lays down that an adopted child shall be deemed to be the adopted child of his
or her adoptive father or mother....” (emphasis supplied). If the adopter is a single person then the adopted child
will have only one parent. For instance, a child adopted by spinster will have only an adoptive mother and no
adoptive father; similarly, a child adopted by a bachelor will have only an adoptive father and no adoptive
mother. Section 14 lays down the adopted child’s relationship with the adopter and the future spouse of the
adopter. It is indeed silent regarding the relationship of the child with the ex-spouse (whether living or dead) of
the adopter. On account of this, some scholars have thought there is a lacuna in the Act and this may be
supplied by an amendment to the Act.2 It is submitted that there is no lacuna. Should the Act lay down as to
how an adopted child will be related to his neighbour? Is it necessary to do so? Should the Act expressly say
that the child is not related to the neighbour in any manner? Similarly, was it necessary for the Act to say that
the adopted child of a person has no relationship with the ex-spouse of adoptor? Since some relationship is
contemplated with the present and future spouse the Act expressly lays down that when a Hindu married male
adopts a child, then his wife is the adoptive mother of the child.3 If a married Hindu with more than one wife
adopts a child, then the senior most wife is his adoptive mother, while other wife or wives is/are step-
mother/mothers.4 When a spinster or a widow adopts a child and then takes a husband, this husband is merely
child’s step-father.5 Similarly, when a bachelor or a widower adopts a child and marries, then his wife is merely
a step-mother to the child.6But when the divorcee (man or woman) adopts a child, then, it is submitted (on this
there cannot be two opinions), the divorced spouse is in no way related to the adopted child. Similarly, when a
widower adopts a child, his deceased wife is in no way related to the child. And, what is submitted here is, the
same should be true when widow adopts a child, her deceased husband should be in no way related to the
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adopted child. Since an adopted child has no relationship with a neighbour, or an ex-spouse of the adopter, the
Hindu Adoptions and Maintenance Act, 1956 does not, and need not, say so. It is obvious.
8. Adoption by Coparcener’s Widow
It is well-established proposition of law that when a Mitakshara coparcener dies his undivided interest devolves
on surviving coparceners by survivorship. Under the old Hindu law it was also a well-established proposition
that Mitakshara coparcener might authorise his widow to adopt after his death. The moment the widow of a
coparcener adopted a son, the adopted son became a coparcener with the surviving coparcener of the adoptive
father and consequently acquired the same interest which his adoptive father would have in the property had he
been living. This was on account of the doctrine of relating back; the child adopted by the widow of the
coparcener became the child of the deceased coparcener from the date of the death of the coparcener. The
doctrine of relating back was taken to extreme limits in Anant v. Shankar.1 His Lordship observed: “An adopted
son by the mother of the male owner is to take estate out of the hands of collateral........No distinction in this
respect can be drawn between property which had come to the last male owner from his father and any other
property which he may have acquired. Separate watan property devolved not on his mother who would be his
heir in the general law but on the nearest male in the line of heirs; and if the plaintiff’s adoption as son to her
husband and put him] puts in that position, his right to succeed cannot be limited to such watan property.
The view taken in Anant v. Shankar1 by the Privy Council that “a coparcenary subsists even after the death of a
sole surviving corparcener so long as it is possible in nature or law to add a male member to it”, has been
reiterated by the Supreme Court in several cases.2
In subsequent cases the Supreme Court and the High Courts have endeavoured to put some limits on this
extreme view. Krishna Iyer, J. observed: “Two principles compete in this jurisdiction and Judges have struck a
fair balance between the two, animated by a sense of realism, impelled by desire to do equity and to avoid
unsettling vested rights and concluded transactions, last fiction should by invading actual facts of life became
an instrumentality of instability.......... In short, the principle of relating the birth of the adopted son to the last day
of the adoptive father’s life is put in peaceful co-existence with recognition of rights lawfully vested on the basis
of realities then existing.”3
The Supreme Court started briddling the hitherto unbriddled doctrine of relating back in Srinivas v. Narayan,4
where the right of the adopted son to divest a collateral heir was negatived. Venkatarama Iyer, J. said. “The law
as thus well-settled that when succession to the properties of a person other than an adoptive father was
involved, the principle applicable was not the rule of relation back but the rule that inheritance once vested
cannot be divested.”1 His Lordship also said that when a widow of a coparcener adopts a son, then the right of
the adopted son to claim properties as on the death of the adoptive father by reason of the theory of relation
back; is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they
were for the purpose binding on the estate.
The next important case in this series in Govind v. Nagappa.2 In this case the joint family consisted of one K
and his three sons RR, HR and IR. HR was given away in adoption by K. RR died in 1912 leaving behind a
widow S. In 1933 there was a partition between K and IR. K died in 1935. S, the widow of RR adopted a son on
September 18, 1955. The adopted son filed a suit of partition on the plea that the partition of 1933 was not
binding on him as no share was given to him— he being in existence in 1912 (when his adoptive father RR
died) by the operation of the doctrine of relating back. The Supreme Court accepted the proposition that the
partition is not binding on the adopted son (thus accepting that a subsequent adoption by a coparcener’s widow
can unsettle a partition validly made prior to adoption), but proceeded to say that this does not obliterate the
factum of partition. Hedge, J. observed: “It is one thing to say that an adopted son can ignore a partition
effected prior to his adoption, which affects his rights and it is different thing to say that his adoption wipes out
the division of status that had taken place in his family.”
When Sripa v. Dattaram,3 came before the Supreme Court, Krishna Iyer, J. started on the assumption that it is
a settled law that the rights of an adopted son spring into existence only from the moment of the adoption and
all alienations made by the widow before adoption, if they are made for legal necessity or are otherwise lawful
(such as with the consent of the next reversioners) are binding on the adopted son. In this case a Mitakshara
joint family consisted of one M and his two sons C and K. K died in 1921 leaving behind a widow RB and a
daughter LB. A partition took place between M and C in 1944. In 1954 M gifted his share of properties to S son
of C. M died in 1946. K’s widow RB adopted LBS, her daughter LB’ s son on 16-2-1956, before the coming into
force of the Hindu Adoptions and Maintenance Act, 1956,LBS filed a suit for partition ignoring the partition of
1944 and claimed half share, his case being that gift by M to S was invalid. The questions before the court
Page 10 of 18
were: Whether the adoption made in 1956 could upset the partition of 1944, validly made under the then
conditions? Whether the gift made by M to S could be retrospectively invalidated on account of the application
of doctrine of relating back? The court came to the conclusion that LBS, the adopted son, could get the partition
reopened, but could get only one-third share, and in computing the net properties available for partition the gift
made by M to S had to be excluded. The court further observed that it was an accepted principle that when a
disposition is made, inter vivos or by Will, by one who had full power to do, then the subsequently adopted son
could not challenge or affect such disposition.1
9. Clause (c) of proviso: Divestment of the Property
Clause (c) of proviso lays down that an adopted son does not divest any person of the property already vested
in him.2The question whether a son adopted by a widow after the coming into force of the Hindu Succession
Act, 1956 can divest the widow of the property already vested in her came for consideration before the
Supreme Court in Punithavathi Ammal v. Minor Ramalingam.3The court without hesitation said that the rights
conferred on a Hindu widow under section 14(1), the Hindu Succession Act, 1956 are not restricted or limited
by any rule or text of Hindu law. The doctrine of relating back cannot be used for circumventing the plain
intendment of the Act. It is interesting to note that Krishna Iyer, J., in Sripad v. Dattaram,4observed that the
question of upsetting of settled titles on account of doctrine of relating back was not likely to arise since section
4, Hindu Succession Act, 1956 has practically swept off all texts, customary rules of the Hindu law which
conflict with the provisions of the Act, and that section 12, thehindu Adoptions and Maintenance Act, 1956
makes it plain that an adopted child shall be the child of his or her adoptive father or mother for all purposes
with effect from the date of adoption. One would not venture to say that a judge of the eminence of Justice
Krishna Iyer was not aware of the precedents,5 which, in fact resurrected the doctrine of relating back.
This takes us to the question as to what is the effect of an adoption made by a coparcener’s widow relating to
the coparcenary property devolved on other coparceners or vested in the widow prior to adoption?
In Ankush Narayan,6 Desai, J., after observing that the result of adoption by “either spouse” (though under the
Act, of the two spouses who can adopt, it is the husband alone who has the right to adopt and the wife has no
such right) is that the adopted child becomes the child of both spouses (one may wonder whether a widow or
widower has a spouse, but it seems to be clear that his Lordship thought that the widow’s spouse is her
deceased husband), said (obiter) that “not only the widow’s husband becomes the adopted father but all
collateral relationships from the husband’s side also come into existence”.7 The learned Judge did not stop
there, but further observed: ........... It is not possible for the respondent to contend that the son adopted by the
widow will not become coparcener with other coparceners surviving after the death of her deceased
husband......................”1
These obiter dicta of Desai, J. have been approved in Sitabai v. Ram Chandra.2 In this case two brothers A
and B constituted a Mitakshara joint family. B died in 1930 leaving behind his widow Sitabai. After the death of
B, Sitabai lived with A as a result of which an illegitimate son, Ramchandra, was born to her in 1935. Sitabai
adopted P on March 4, 1958. On March 13, 1958 A died leaving behind his illegitimate son Ramachandra. After
the death of A, Ramachandra took possession of the joint family properties, whereupon P filed a suit for
ejectment of Ramachandra on the plea that he being the adopted son B, was entitled to all the joint family
properties by survivorship on the death of A. Ramachandra claimed the land on the basis of settlement of the
same in his favour after it has been surrendered by A, and he claimed other properties on the basis of bequest
to him under the Will of A. Ramaswami, J. built up the argument on the premises that a Mitakshara coparcenary
can consist of a single male member and widows of deceased male members and that the property of a joint
family did not cease to belong to the joint family merely because the family is represented by a single
coparcener who possessed the same rights which an absolute owner of the property may possess.3 On this
basis the learned Judge came to the conclusion that even on the death of B the character of the property, did
not change, that is, the properties continued to remain joint. Ramaswami, J. observed on the basis of sections
11 and 12 of the Hindu Adoptions and Maintenance Act, 1956 that the child adopted by the widow “is tied with
the relationship of sonship with the deceased husband of the widow. The other collateral relations of the
husband would be connected with the child through that deceased husband of the widow.”4 Then nothing that
section 14 of the Act did not expressly state that the widow’s adopted child became the adopted child of her
deceased husband, the learned Judge said that by necessary implication of sections 12 and 14 the widow’s
adopted son became her deceased husband’s adopted son also.
In Sitabai, since the coparcener had died in 1930 (when the Hindu Women’s Right to Property Act, 1937 did not
exist) the question of divesting the widow did not arise. Had the widow then taken a widow’s estate which would
have matured into absolute estate on the coming into force of the Hindu Succession Act, 1956, the question
Page 11 of 18
whether the adopted son could divest her, would have arisen. The Supreme Court in Punithavathi Ammal v.
Minor Ramalingam,5has categorically (and it is submitted rightly) said that an adopted son of a widow cannot
divest her of the property vested in her. Under the old Hindu law, a son adopted by a widow became the
adopted son of her deceased husband by virtue of the doctrine of relating back (and since the doctrine did not
apply in the converse case, the son adopted by a widower did not become the adopted son of his deceased
wife). The proviso to section 6 of the Hindu Succession Act, 1956 lays down that if a Mitakshara coparcener
dies leaving behind female heir in Class I (or a male heir in class I claiming through a female), then his interest
will devolve by succession and not by survivorship. Suppose, a coparcenary consists of two brothers,A and B.
A dies in 1975 leaving behind his widow, W. Since A had died leaving behind a female heir in Class I of the
Schedule to the Hindu Succession Act, 1956, her interest will devolve by succession. By notional partition it
would come to one-half. Since there is no other Class I heir,W will take the entire one-half share by succession
which vests in her. Now in 1977 W adopts S as her son. Does S become coparcener with B? If, following the
reasoning of the learned Judge in Sitabai v. Ram Chandra, we answer the question in affirmative, then the
question is: in what property does he become coparcener with B? S cannot obviously divest W of the one-half
share of her husband.1 Then, does he become a coparcener in the remaining one-half share of B? To say so
would mean that in the Mitakshara system of law not merely son but the nephew (to be precise, the adopted
son of the widow of the brother) also has a right by birth.2
Sitabai v. Ramchandra has been followed by the Delhi High Court in Dunichand v. Paras Ram.3 In this case on
the death of K, an issueless Hindu, his widow M succeeded to his properties and took widow’s estate. In 1944,
she made an oral gift of the properties to two persons, BR and RR. Later on in the same year two reversioners
PR and K filed a suit challenging the aforesaid gift. The suit was compromised in favour of the plaintiffs. Then in
1957, M filed a suit for the cancellation of the gift and possession of gifted property. Again, a decree of
compromise was passed under which one half of properties were awarded to M as against RR, and the suit
against BR was dismissed. In 1957, M adopted DC, son of BR. M died in 1960. The reversioner, PR and K filed
a suit for possession against DC and others. Khanna, J., after quoting extensively from Sitabai, said that DC
should be held not merely the adopted son of M but also of her deceased husband K. The learned Judge
further said that section 12(c), the Hindu Adoptions and Maintenance Act, did not come into play as there was
no question of divesting the plaintiffs PR and K, since no property vested in them (when M had adopted DC no
property had vested in the PR and K). In view of this statement of law, his Lordship has no difficulty in holding
that on the death of M her adopted son being the adopted son of K also was the preferential heir of K. It is
submitted that if we say that DC succeeds to the property of M being the adopted son of M the statement would
be correct, but if we say that DC succeeded because he is the nearest Kin of K, we can say so only if we
accept that the doctrine of relation back is still recognised in Hindu law, otherwise the adopted son of a widow
cannot be also the adopted son her deceased husband.
It is submitted that in none of three cases divestment of property had taken place: in Dunichand v. Paras Ram
the property at the time of adoption did not vest in any person; in Sitabai v. Ramchandra, of the two brothers
who constituted coparcenary, the brother whose widow subsequently adopted a son had died in 1930, and
therefore no property vested in the widow or any other person. In Sawanram v. Kalwati the widow who had
widow’s estate had alienated the estate before she made the adoption. (In fact she made the adoption pending
the proceedings of the reversioner challenging the alienation made by her). It may be recalled that in that case
a coparcenary consisted of A and his two sons B and C. B died in 1924 (when the Hindu Women’s Right to
Property Act, 1937 was not in existence; this fact has been noted by Bhargava, J.) leaving behind a widow D. A
died in 1936 (making C a sole surviving corparcener: this fact too has been noted by Bhargave, J.). In 1956 D
adopted E and soon after his adoption E filed a suit for half a share against C and his son F. Bhargava, J., after
observing that the ultimate decision arrived at by the Andhra Pradesh High Court in Hanumantha’s case is not
incorrect, said: “It is significant that by the year 1936, C was the sole surviving male member of the Hindu joint
family which owned the disputed property. B died in 1924 and A died in 1936. By that time the Hindu Women’s
Right to Property Act, 1937 had not been enacted and, consequently, C, as the sole male survivor of the family,
became fully owner of that property. In these circumstances it was clear that after the adoption of E by D, E
could not divest C of the right already vested in him in view of the special provision in clause (c) of proviso to
section 12 of the Act.” On this reasoning, it is submitted that Sitabai v. Ramchandra was wrongly decided. It is
curious that no reference was made to Sawanram in Sitabai. It is further submitted that the observation of
Bhargava, J. that the sole surviving coparcener becomes “full owner” or that the joint family property “vests” in
the sole surviving coparcener is not correct. In Hanumantha at the time of the adoption the coparcenary again
came into existence since C was blessed with a son. If we accept that the adopted son of widow is also the
adopted son of the deceased husband, we have no alternative but to say what the Supreme Court has said in
Sitabai. But can we say that?
Page 12 of 18
Again, in Ankush v. Janabai also most of the properties were not in possession of the widow, but were
alienated by her before the adoption was made. Since the widow was not in possession of these properties
when the Hindu Succession Act, 1956 came into force, these properties did not become her absolute properties
and did not vest in her. Another important fact was that when the appeal was pending in the High Court, the
widow died. The court accepted the argument that the adopted son may be allowed to take the properties which
were in the possession of the widow at the time of her death as her adopted son. In Subhash Misir v. Thagai
Misir also the properties were not in the possession of the widow, but in the possession of a collateral of the
husband who claimed the properties in his own right. Originally, it was widow’s right for declaration and
possession of properties, but during the pendency of the proceedings the widow had died and the adopted son
of the widow was substituted in her place. The adopted son was allowed to take the properties as the adopted
son of the deceased husband and of the widow. In Arumugha v. Valliammal the widow succeeded to the
properties of her husband and took them as women’s estate. Subsequently, she made several alienations. One
of her husband’s sister instituted proceedings in 1951 and obtained a declaration that alienations made by the
widow would not be binding on the reversioners. The widow died in 1960 but before her death she had adopted
a son. After the death of the widow the husband’s sister filed a suit for possession of properties against the
alienee. In these proceedings the adopted son intervened and claimed the properties as the nearest heir of the
husband of the deceased widow, being his adopted son. The Madras High Court decided against the adopted
son, expressing disagreement with the decision in Ankushnarayan. It seems the Supreme Court’s decision in
Sawanram was not brought to the notice of the court.
The peculiar feature of most of these cases,1 is that the question of divesting any person did not arise, and
therefore the adopted son was allowed to take the property of the deceased husband of the adoptive mother as
his heir. But as has been held in Punithavathi Ammal v. Minor Ramalingam,2 the adopted son cannot divest
any person if the property had already vested in him. The Supreme Court said that the full ownership conferred
on a Hindu female under section 14(1), the Hindu Succession Act, is not defeasible by the adoption made by
her to her deceased husband after the Act came into force.3 In view of the submission made here, the decision
of the Supreme Court and the High Courts which take the view that a son adopted by the widow of the
deceased coparcener becomes coparcener with the surviving coparceners of the deceased husband needs a
second look.
Incidentally in these cases, the question of divesting any person of any property already vested in him before
adoption did not arise. But in some subsequent cases this question arose and in one case resort was taken to
the doctrine of prospective furthering.
In Yamunabai v. Ram Maharaj,4 where the question of “vesting” came before the court in the context of clause
(c) of proviso, an inamdar from the state of Kohlapur died leaving two widows. The senior widow being navawali
(holder) of the Inam properties adopted a son in 1949 without securing the sanction of the government of
Kohlapur as was required under the State regulations. On her death, the junior widow’s name was recorded as
holder of the inam properties. The adopted son disputed the claim of junior widow. The junior widow filed a suit
claiming that she was entitled to the entire properties, as adoption was invalid being made without any sanction
of the Government. It may be stated that ex-post facto sanction for the adoption was given in 1959. The
question before the court was whether adoption was effective from 1949 or from 1959? The court held that
sanction was effective from the date it was given and it could not be given retrospective effect. The court also
held that by virtue of section 14(1), the Hindu Succession Act, 1956, the junior widow became the full owner of
the inam properties.5
In Hirabai v. Babu Manik Ingale,1 the Bombay High Court declined to follow Yamunabai. In this case one
Hirabai, widow of Harjit Ingale, adopted Babu Manik under a registered deed of adoption. The land left by Harjit
Ingale were mutated in the name of Babu Manik. Later on Hirabai filed a suit for cancellation of adoption and for
a declaration that the ownership of the land vested in her. During the pendency of the suit she purported to
make a transfer of the land in favour of one Latabai, a minor, for a consideration of a sum of Rs. 25,000. The
trial Court held that the adoption and surrender of land in favour of adopted son as valid. The main argument
addressed before the court in favour of the widow ran: Hirabai was the sole holder of the joint family property
coming to her on the death of her husband and by virtue of section 14(1), the Hindu Succession Act, she
became the absolute owner of the property, therefore, unless the property was conveyed by a deed of gift to
the adopted son, the adopted son could not acquire any interest in it by the mere fact that he was adopted by
the widow.
Masadkhar, J. who delivered the judgment of the court, after narrating the historical development of Hindu law
Page 13 of 18
of property in the context of adoption, after referring to section 12 of the Act which lays down that the adopted
child “shall be deemed” to be the child of adoptive father or mother for all purposes, and after adverting to the
Supreme Court decision in Sawan Ram v. Kalawati,2 and Sitabai v. Ramchandra,3 said that the expression
“shall be deemed” and “for all purposes” in the section indicated that the legislature clearly introduced a new
legal fiction, i.e., “prospective furthering”. According to learned Judge, the theory prospective-furthering is as
under:
This prospective-furthering of the effects will have dual incidents of admitting status and conferring rights and
privileges, including the rights and privileges in property, for the purpose of giving effect to the status as that of the
child born to the wedded spouses, this prospective-furthering implies that because of the device of adoption, though
the child is taken by one of the spouses, the child equally is the child of the other.......... As a consequence of this
position, it follows that on the date of adoption, the adopted child becomes the immediate heir to his deceased father or
mother from that date and acquires all necessary capacity to take the property. (emphasis author’s)
In the result, the rights and privileges by virtue of prospective furthering would get annexed to whatever remains
of the property as on the date the effect of adoption is enjoined to take place. The learned judge’s reading of
the Supreme Court decisions referred to earlier is: The ratio of both cases clearly goes to show that the
exception provided in clause (c) is meant only to protect the others of the rights vested in them prior to adoption
and is not intended to deprive the adopted child of the rights with regard to the property belonging to the joint
family. The learned Judge added that the language of section 14(1) of the Hindu Succession Act does not stand
in the way of an adopted child getting an interest in the property held by the widow. The learned Judge also
distinguished Punithavalhi Ammal v. Minor Ramalingam by saying that in the case there was no reference to
the coparcenary property.
On account of this conflict, the matter came for consideration before a Full Bench in Kesharbai Jagannath v.
State.1The fact of the case are interesting as an attempt was made to escape from the clutches of the
Maharashtra Land (Ceilings on Holding) Act, 1961. The widow of one Jagannatth Gujar who had adopted a son
pleaded that her adopted son was entitled to one-half share in the land. The land tribunal accepted this
contention and held that, in view of the notional partition, neither party was a surplus holder. But the Divisional
Commissioner came to a different conclusion. According to him Kesharbai became a full owner of the entire
property left by her husband by virtue of section 14, the Hindu Succession Act read with section 12(c) of the
Hindu Adoptions and Maintenance Act, 1956 and the adopted son had no share. In view of this he held that
there was surplus land. The question before the Full Bench was formulated thus:
Whether by reason of section 14 of the Hindu Succession Act which converts the limited estate into full ownership, in
the case of the joint family property, does the adopted son take interest by birth i.e., civil birth from the date of his
adoption?
The Full Bench overruled Hirabai and observed that after coming into force of the Hindu Succession Act, 1956,
by virtue of section 14(1) thereof, a female holder became the full owner of the property held by her. In our
submission, the court rightly said that in Hirabai, the widow became the full owner of the property under section
14(1), the Hindu Succession Act. The Full Bench also dismissed the theory of prospective-furthering. The court
said that “this seems to be a new expression coined and such a concept is not to be found anywhere else”. The
court said:
.......It appears that the full ownership conferred upon a Hindu female would have all the attributes of full ownership as
is understood normally in law. In our view the first consequence is that there is no question of reversion after the death
of the Hindu female and she would continue a fresh stock. Succession to this property will be governed by the
provisions of the Hindu Succession Act and not by the Shastric Hindu Law. Being full owner she is entitled to dispose
of the property by transfer inter vivos or by Will. If a son adopted by a Hindu male person could not claim any right in
the self-acquired property how can a son adopted by the Hindu female now claim a right by birth in this independent
property of the female which is akin to the self-acquired property. It is being conceded on all hands that the adoption
after the Hindu Succession Act operates prospectively and not retrospectively. There is no relation back. On the date
of the adoption there is no joint family property in existence in which he could claim any interest in birth. In doing so,
the adopted son is not deprived of the status given to him of natural born son as section 12 of the Hindu Adoptions and
Maintenance Act, 1956 provides. Where the natural born son could get a right by birth, the adopted son would. If the
natural son had no right by birth, the adopted son cannot also claim any such right.
Page 14 of 18
In Kisan Baburao Memane v. Suresh Sadhu Memane,1 original owner of the property died in 1919 and his
widow gifted some property to defendants in 1948. She adopted the plaintiff in 1973 and she died in 1975. It
was held that the adopted son could not divest suit property vested in defendants before adoption even
presuming that the gift was invalid.
Yet, Sawan Ram v. Sitabai, continues to bug us. Section 12, it may be recalled, particularly the words therein
“replaced by those created by the adoption in the adoptive family,” led the Supreme Court to hold that the child
adopted by a widow is also the child of her deceased husband. If we hold so the question of divestment of
property is the natural result of resurrection of the doctrine of relating back. In both Sawan Ram and Sitabai
such were the facts that the question of divestment did not arise. But it arose in a later case. We have also
overlooked that under the old law, the theory of relating back was clearly subject to the following two
exceptions: (i) when property by inheritance passes to a collateral and the adopted son is adopted after the
death of the collateral (thus property passing to his heir by inheritance) the adopted son cannot divest his heirs;
and (ii) the adopted son is bound by any lawful alienation made by a male or female heir after the death of the
adoptive father and before the date of an adoption; (iii) the third exception (assuming the validity of the
resurrection of the doctrine of relating back by the Supreme Court) has come into existence by virtue of section
14, the Hindu Succession Act, 1956.i.e., when a Hindu female is in possession of the property in her own right
when the Act came into force and if that was a limited estate it becomes full estate, and the subsequently
adopted son cannot divest her of the property already vested in her. (And this will be so even after Sitabai v.
Ram Chandra).2 The question of divestment of the property vested in the widow on the death of her husband
arose in Revabai v. Sitaram,3 where the brief facts were these: two brothers constituted a Mitakshara
coparcenary and they effected an oral partition in or about 1928-29. One of the brothers had two wives. He died
in 1936 and soon thereafter his two widows, A and B, got effected a partition of the estate through a court
decree. B adopted a son, S on November 12, 1953. On November 30, S filed a suit claiming properties held by
A on the ground that from the date of adoption by B, he, the adopted son, divested A of all the properties vested
in her, and the decree of partition obtained by his adoptive mother and the co-widow of his adoptive father (in
view of Sawan Ram he was the adopted son of the deceased husband of his adoptive mother) was not binding
on him.
The Hindu Women’s Right to Property Act, 1937 came in that region on September 30, 1939 and the date when
the suit was filed, section 14 of the Hindu Succession Act had come into force. The case was based on the
construction of the provisions of section 14. The rights of acquisition of property contemplated under both the
sub-sections of the section may be acquired in any possible manner and independently of each other. In our
submission, it seems to be clear that sub-section (2) will come into application only when the property is
acquired by a Hindu female for the first time (without any pre-existing right) under gift, Will, instrument, decree
or order or award and such gift-deed, Will, instrument, decree, order or award grants her a restricted estate in
the property. On the other hand, if any property or right in the property has been acquired by a Hindu female in
any manner including the manner laid down in sub-section (2), on the basis of pre-existing right (in other words,
if the grant is merely a recognition of pre-existing right), sub-section (2) will not apply, and the matter will be
exclusively governed by sub-section (1). If the Hindu female has possession over that property when the Act
came into force, it will be converted into an absolute estate.
P.D. Muley, J., in a considered judgment, observed that the decree of the court effecting portion between the
widows merely recognized their pre-existing right, since each has a pre-existing right to maintenance in the
property. The Judge added that A was obviously in possession of the property when the Hindu Succession Act
came into force, and even if assuming that the widows have no right to partition in the sense of putting their
mutual right of survivorship to an end, they were in possession of the suit properties and once it was shown that
by mutual consent they had effected a final partition, it was not open to any one of them, much less the adopted
son, to claim a reallotment of possession of the properties. The adopted son could not divest her of the
properties already vested in her and which had, by virtue of section 14(1) become her absolute properties.
Again in Kanduru Vankata Samaiah v. Kanduru Ramasubbamma,1 the doctrine of relating 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 her adopted son and retained the other for herself. The adopted son sought to divest his
adoptive mother of all the properties on the same basis on which he tried to do so in Revabai v. Sitaram, and
here also he failed. P. Kodandaramayya, J., after a review of the authorities of the Madras High Court and
some Privy Council decisions, observed:
Though there is some conflicting dicta on this question, the preponderance of authority is in favour of the view that
Page 15 of 18
when a Hindu disposes of his property by a Will giving absolute estate to his wife the disposition is not affected by a
subsequent adoption by the widow as the Will speaks as at the death of the testator and the property is carried away
before the adoption....... 2
The Judge observed that this has been the accepted view of the Madras High Court for over three decades and
the doctrine of relating back could not be resurrected. Then he added:
Further after 1956, the Hindu Adoptions and Maintenance Act......... 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.1
In Akshay Kumar v. Sarada Dai,2son adopted by a widow was held to be the son of her deceased husband but
it was added that such adopted son would not though divest the widow of property vested in her by virtue of
section 14 of the Hindu Succession Act, 1956.
In Sorawar Singh v. Kan Mal,3 it was held that widow became the sole owner of property once she inherited it
under the Hindu Succession Act and any subsequent adoption of a son could not divest her.
1 Rajappa v. Channamma, AIR 2008 Kant 47 [LNIND 2007 KANT 514].

2 Sharad Chand v. Shanta Bai, AIR 1944 Nag 66 (FB).
3 Martland v. Narayan, AIR 1939 Bom 305 (FB).
4 See Muthukrishnan v. Sri Palani, (1969) IMLJ 129.
1 Basant v. Dattu, AIR 1987 SC 398 ; Devgonda v. Shamgonda, AIR 1992 Bom 189 [LNIND 1991 BOM 372].
2 Santosh Kumar Jalan v. Chandra Kishore Jalan, AIR 2001 Pat 125 .
3 Kesharpai v. State of Maharashtra, AIR 1981 Bom 115 [LNIND 1980 BOM 235].
4 Sawan Ram v. Kalawati, AIR 1967 SC 1761 [LNIND 1967 SC 153].
1 Nanda Kishore v. Bhupendra, AIR 1966 Cal 181 .
2 Inder Singh v. Kartar Singh, AIR 1966 Punj 258 .
3 AIR 1981 AP 19 .
1 AIR 1986 P&H 259 .
2 AIR 1996 Bom 50 [LNIND 1995 BOM 238].
3 AIR 2002 Kant 73 [LNIND 2001 KANT 432].
1 Beshetappa v. Shivagappa, ILR (1973) 10 Bom HC 268.
2 Vijiaradgam v. Lakhuman, (1871) 8 Bom HC 44; Venkata v. Subhadra, ILR (1884) 7 Mad 584 ; Sham Singh v.
Santabai, ILR (1901) 25 Bom; Kisum v. Satya, ILR 30 Cal 399.
3 Sham Singh v. Santabai, ILR (1901) 25 Bom where a Hindu convert to Islam gave his son in adoption by delegating the
performance of ceremonies to another person.
4 AIR 1976 SC 1761 .
5 See section 7. Section 6(1) lays down that no “adoption shall be valid unless the person adopting has the
capacity...........and the person giving in adoption has the capacity to do so.”
6 In a case where the adopter has more than one wife, then the consent of all the wives is required, though senior most
alone becomes an adoptive mother and the rest are designated as step-mothers. To call all of them as adoptive
mothers, would have been rather too much of a fiction.
Page 16 of 18
1 Section 8(c).
2 Proviso to sec. 7 and sec. 8(c).
3 Clauses (3) and (4) of sec. 14.
4 Ankush v. Janabai, AIR 1966 Bom 174 [LNIND 1965 BOM 26]; Subhash Misir v. Thanga Misir, AIR 1967 All 148
[LNIND 1966 ALL 70] and Hanumantha Rao v. Hanumayya, ILR (1966) AP 140 : 1964 (1) Andh WR 156.
5 Sawanram v. Kalawati, AIR 1967 SC 1761 [LNIND 1967 SC 153].
1 AIR 1966 Bom 174 [LNIND 1965 BOM 26].
2 AIR 1965 Bom 174 (178).
3 AIR 1967 All 148 [LNIND 1966 ALL 70](149).
4 ILR (1966) AP 140 : 1964 (1) Andh WR 156.
1 AIR 1967 SC 1761 [LNIND 1967 SC 153].
2 ILR (1966) AP 40 : 1964 (1) Andh WR 156.
3 AIR 1967 SC 1761 [LNIND 1967 SC 153](1764).
1 Radha v. Hanuman, AIR 1966 SC 216 [LNIND 1965 SC 142].
1 Section 12.
2 See Rig Veda, IX 85; Shatpatha Brahammana, V.I. 6. 10; Taitirirya Samhita, III. 1.2.57; Manu Smriti, IX 101-102.
3 Manu Smriti, V. 146.
4 Manu Smriti, V 146-148; See also Vasishtha V.I. 3; Gautama XVII. 1.
5 See author’s work, Modern Hindu law, Codified and uncodified 2nd Edn., pp. 63-66. From these texts (referred to in
footnotes 40, 41, and 42), was developed the concept of guardianship by affinity; See Chinna Alagum Persumal v.
Vinayakathamal, AIR 1929 Mad 110 [LNIND 1928 MAD 188].
6 Section 2, Hindu Widows Remarriage Act, 1856.
1 See the Hindu Marriage Act 1955, sec. 13.
2 Section 12.
3 AIR 1967 SC 1761 [LNIND 1967 SC 153].
1 Bajabai v. Bale Venkatesh, (1870) 7 Bom HR App-v, I; Collector of Madura v. Mootoo Ramlinga, (1968) 12 MIA 397;
Yadao v. Namdeo, (1921) 48 IA 313.
2 Under the old Hindu law in a series of cases it was firmly laid down that even the husband has expressly desired his
widow to make an adoption there was nothing which could compel her to do so; Baimumdas v. Mt. Tarinee, (1958) 7
MIA 169 (is probably the earliest reported case); Mutssaddilal v. Kundanlal, (1906) 33 IA 55; Pratap Singh v.
Agarsinghji, (1919) 46 IA 97.
3 See sections 8 and 12, Hindu Adoptions and Maintenance Act, 1956.
4 Chowdry Padam Singh v. Koer Udaya Singh, (1969) 12 MIA 350; Narendranath v. Dinanath, ILR 36 Cal 824.
5 Sawanram v. Kalawati, AIR 1967 SC 1761 [LNIND 1967 SC 153]; Ankush Narayan v. Janabai, AIR 1966 Bom 174
[LNIND 1965 BOM 26]; Subash Misir v. Thangal Misir, AIR 1967 All 148 [LNIND 1966 ALL 70].
1 Nivrutti Kushaba Binnar v. Sakhubai, AIR 2009 Bom 93 [LNIND 2009 AUG 11].
2 Shri Narayan Dass in his learned article “Desirability of Amendments of the present Law of Adoption” 1966 AIR
(Journal) p. 26 takes this view.
3 Section 14, sub-section (1) and sub-section (2).
4 Section 14, sub-section (2).
1 (1943) 46 Bom LR.
Page 17 of 18
2 This is how the Supreme Court has put it in Sitabai v. Ramchandra, AIR 1970 SC 343 [LNIND 1969 SC 280].
3 Sripad v. Dattaram, AIR 1970 SC 878 .
4 AIR 1954 SC 379 [LNIND 1954 SC 52].
1 But the position is different when the property devolves on a descendent. See Krishnamurthi Vasudeorao Deshpande v.
Dhruwaraj, AIR 1962 SC 59 [LNIND 1961 SC 245].
2 AIR 1972 SC 1401 [LNIND 1972 SC 63].
3 AIR 1974 SC 878 [LNIND 1974 SC 85].
1 Krishnamurthi v. Krishnamurthi, AIR 1927 PC 139 . See also Bhivali v. Hanmanthra, AIR 1950 Bom 271 [LNIND 1949
BOM 104]; N.R. Bijoor v. Padmanabha, AIR 1970 Bom 319, where this decision has been followed, and elaborated.
2 Chandramani Bai v. Pradeep Kumar, AIR 1990 MP 286 .
3 AIR 1970 SC 1730 [LNIND 1970 SC 100]. The Court overruled the contrary decision of the Madras High Court in
Punithavathi Ammal v. Minor Ramalingam, AIR 1970 SC 1730 [LNIND 1970 SC 100].
4 AIR 1974 SC 874 .
5 See cases cited in footnotes 4 at pages 111 and 5 at page 112 and Saman Rama v. Kalawati, AIR 1967 SC 1761
[LNIND 1967 SC 153].
6 AIR 1966 Bom 176 .
7 Unfortunately this point was conceded by the lawyer of the respondent.
1 AIR 1955 Bom 176 .
2 AIR 1970 SC 343 [LNIND 1969 SC 280].
3 Reliance was placed on Gowli v. Commissioner of Income Tax, AIR 1966 SC 1523 [LNIND 1966 SC 9].
4 AIR 1970 SC 343 [LNIND 1969 SC 280](347-48). This observation was made without referring to Sawan Ram’s case.
It seems that Sawan Ram’s case was not brought to the notice of the court.
5 AIR 1970 SC 1730 [LNIND 1970 SC 100].
1 This could not have been said in view of clear provision of section 12(c) and this is what the Supreme Court held in
Punithavathi Ammal v. Minor Ramalingam, AIR 1970 SC 1730 [LNIND 1970 SC 100].
2 See author’s work, Modern Hindu Law, Codified and Uncodified 6th Edn., 1956 p. 211.
3 AIR 1970 Del 202 [LNIND 1970 DEL 108].
1 AIR 1970 Del 203 .
2 AIR 1970 SC 1730 [LNIND 1970 SC 100].
3 The court approved the Bombay High Court judgment Yamunabai v. Ram Maharaj Shreedhar Mahraja, AIR 1960 Bom
463 .
4 AIR 1960 Bom 463 .
5 This decision was approved by the Supreme Court in Punithavathi Ammal v. Minor Ramalingam, AIR 1970 SC 1730
[LNIND 1970 SC 100].
1 AIR 1980 Bom 315 [LNIND 1980 BOM 49].
2 AIR 1967 SC 1761 [LNIND 1967 SC 153].
3 AIR 1970 SC 343 [LNIND 1969 SC 280].
1 AIR 1981 Bom 118 .
1 AIR 1996 Bom 50 [LNIND 1995 BOM 238].
3 AIR 1984 MP 102 [LNIND 1983 MP 85].
1 AIR 1984 AP 313 [LNIND 1984 AP 123].
2 AIR 1984 AP 313 [LNIND 1984 AP 123](316).
2 AIR 1995 Ori 212 .
Page 18 of 18
3 AIR 2003 Raj 107 .
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
13. Right of adoptive parents to dispose of their properties.—

Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the
power to dispose of his or her property by transfer inter vivos or by will.
Comments
1. Scope
This section codifies the old law that adoption does not deprive the adoptive parent of his right to dispose of his
property by transfer inter vivos or by Will. This right is subject to a contract to the contrary. This section applies
to adoptions made after the coming into force of the Act.4
2. Adoptive Parent’s Right to Dispose of his or her Separate Property
An adoptive parent is in no way restrained in the disposal of his properties by reason of adoption. Adoptive
parent’s right on disposing of his property is subject to any agreement, to the contrary that might have been
entered into between the adoptive parent and the natural parent on behalf of the child. This was also the law
before the Act. The adopted child cannot demand any property, or its enjoyment during the life-time of his
adoptive 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.5 But if no such agreement is entered into between the natural parent and adoptive parent.
Obviously it cannot be given effect to.6
This section thus enacts the general principle that if adopter, at the time of adoption is absolute owner of some
property the act of adoption would not ordinarily disturb that right, and therefore the adoptive parent can
exercise that right even after the adoption. This principle applies whether the adopter is a male or female or the
adopted child is a boy or girl. This section protects those rights of disposal of property which existed at the time
of adoption. It does not create any new rights.1
A transfer which is otherwise invalid or unenforceable will not become valid or enforceable by virtue of this
section. If a Will by an adoptive parent has not been legally proved, section 13 will not make it enforceable.2
Page 2 of 5
The general rule laid down in the section codifies the old settled law under which an adopter’s right of disposal
of his self-acquired property was not affected by any adoption made by him.3
Thus the principle enacted by this section does not apply to:
(a) Coparcenary property,4 or

(b) Limited estate.5
Since limited estates no longer exist, we are not considering this aspect of the matter.
3. Joint Family Property and its Alienation
This section does not apply to the ancestral or joint family property. When a coparcener adopts a son he
becomes a coparcener with the adoptive father and acquires a right in the joint family property. The same
restrictions on alienation as apply to the joint family property will continue to apply, even if the adopter is a sole
surviving coparcener. In Vasant v. Dattu,6 it was argued that an adopted son of a coparcener or his widow
cannot divest anyone else of his interest in the coparcenary, Chinnappa Reddy, J. repelling the contention,
observed:
The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of
the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any
estate vested in him. The joint family continues to hold the estate, but, with more members than before. There is no
fresh vesting or divesting of the estate in anyone.
It was argued also that, on the death of a member of a joint family, the property must be considered to have
vested in the remaining members by survivorship. The learned Judge said, “The property, no doubt passes by
survivorship, but there is no question of any vesting or divesting in the sense contemplated by section 12 of the
Act. To interpret section 12 to include case of devolution by survivorship on the death of a member of the joint
family would be to deny any practical effect to the adoption made by the widow of a member of the joint family.
We do not think that such a result was in the contemplation of Parliament at all”. If a partition has taken place in
the joint family prior to adoption. Then obviously the son adopted by a coparcener or his widow does not get
any interest in the joint family property even if the partition by metes and bounds has not taken place.
In Tara Chand v. Ram Avtar,1 the Punjab and Haryana High Court observed that there was nothing in section
13 which prevented an adopted son to challenge an improper alienation made by her adoptive father.
When a coparcener’s widow makes an adoption, the question arises: does he become a coparcener with
widow’s deceased husband’s brother, father, nephews, etc.? For instance, a coparcenary consists of three
brothers, A, B and C. A and B have natural sons, AS and BS. C, who has no son, adopts CS. CS will be a
coparcener with A, B, C, AS and BS. If A as Karta of the joint family, wants to alienate some property CS can
like any other, coparcener, take appropriate proceedings to prevent him from doing so.
Adoptions by a coparcener’s widow.—If a coparcener’s widow adopts a son, does he become a coparcener,
in the joint family? For instance, a Mitakshara coparcenary, consists of three brothers, A, B, and C. C died in
1954 leaving behind his widow CW. By virtue of the Hindu Women’s Right to Property Act, 1937, CW took C’s
interest in the joint family property by succession as a limited owner. In 1956 by virtue of section 14, the Hindu
Succession Act, 1956, she became an absolute owner of this interest. In 1958 she adopts CS. Does it mean
that CS becomes a coparcener in the joint family, or is he entitled to half of the interest of CW? Before 1956 he
could, as by virtue of the doctrine of relating back he became the son of C also. And if CW would have died in
1950, assuming that CS was adopted by CW before that, CS would have taken the entire interest of C and
would have remained a coparcener with A and B. But it is submitted this cannot be so in our present case, as
when CW adopted CS, the interest had already vested in her and CS cannot divest her of this property, and he
cannot be coparcener with A and B. In Ankush Narayan v. Janabai,2 Desai, J. remarked that the adopted son
of the widow of a coparcener will also become a coparcener with the surviving coparceners of her husband.
What was said obiter has been laid down as a rule of law by the Supreme Court in Sita Bai v. Ram Chandra.3
In Sitabai’s case there were two brothers A and B who constituted a Mitakshara coparcenary. B died in 1930
leaving behind his widow Sitabai. Sitabai adopted P on March 4, 1958. A died on March 13, 1958 leaving
behind an illegitimate son Ram Chandra. The Supreme Court held that P became a coparcener with A with
effect from March 4, 1958 and therefore when A died on March, 13, 1958 the coparcenary property passed to P
Page 3 of 5
by survivorship. Ramaswami, J., who delivered the judgment of the Supreme Court, did not refer to Sawan
Ram but specifically approved Ankush Narayan. In Ankush Narayan the Bombay High Court allowed the
adopted son to divest his adoptive mother’s inheritance which has vested in her absolutely under section 14,
the Hindu Succession Act. Ramaswami, J. relied on Gowli v. Commissioner of Income Tax,1 for the proposition
that under Hindu law a joint family may consist of a single male member and widows of the deceased male
members and that the property of a joint family does not cease to belong to a joint family merely because it is
represented by a single coparcener who possesses rights which an absolute owner of property may possess.
(It should be noted that these observations were made in a tax case for the purpose of levying income-tax). The
learned Judge on this premise, observed that by adoption (on the basis of sections 11 and 12) the child
adopted by the widow becomes absorbed in the adoptive family to which the widow belongs i.e., “the child
adopted is tied with the relationship of sonship with the deceased husband of the widow” and “other collateral
relations of the husband would be connected with the child through the deceased husband of the widow.” His
Lordship further said that though section 14, the Hindu Adoptions and Maintenance Act, does not specifically
say so, it will be so by necessary implication of sections 12 and 14. Since B had died in 1930 (when Hindu
Women’s right to Property Act, 1937, did not exist) the question of his widow taking a limited estate which could
have matured into full estate in 1956 by virtue of section 14, the Hindu Succession Act, did not arise. Thus
there was no question of P divesting his adoptive mother. It is submitted that it is very difficult to accept the
arguments of Desai, J. and Ramaswami, J. Under the Mitakshra law the interest of a coparcener passes by
survivorship to other coparceners the moment he dies. Under the old Hindu law a son adopted by widow of a
deceased coparcener could become a son to the deceased coparcener by virtue of the doctrine of relating
back. That doctrine has been clearly abolished. Then, the proviso to section 6, the Hindu Succession Act,
expressly lays down that on the death of a coparcener, leaving behind a female heir of Class I his undivided
interest will immediately, on his death, vest in his widow and other heirs. If the widow adopts a son, the adopted
son cannot divest the widow or any other person in whom the property has vested.2 Thus, it would be difficult to
say in what manner and in what property can the adopted son of a widow of a deceased coparcener? For
instance, a coparcenary consists of two brothers A and B. B dies in 1958 leaving behind a widow, W.
Immediately on the death of B, 1/2 share in the coparcenary property will vest in W. In 1960 W adopts a son P,
leaving aside all other arguments, if we say that P becomes a coparcener with A, does it mean that P divests W
of the entire share or half share of the properties of B vested in her? That cannot be said (though Desai, J.,
substantially said that) in view of clear provision of section 12(c). Then does it mean that P would become a
coparcener in 1/2 of the properties held by A? To say that would mean that in the Mitakshara coparcenary not
merely a son, also a nephew takes an interest by birth. It is submitted that the law laid down by the Supreme
Court is flatly against the express provision of the Hindu Adoptions and Maintenance Act. In this context the
decisions of Ramamurthi, J. of the Madras High Court in Arumugha v. Valliammal,1 is refreshing. The learned
Judge clearly came to the conclusion that a son adopted by a widow is not the adopted son of her deceased
husband.
But Hirabai v. Babu Manika Ingale,2 is an interesting case. It takes the reasoning of Sitabai a little further. The
Bombay High Court took the view that a surrender made by a widow of her interest in the joint family property in
favour of an adopted son was valid and that proviso (c) to section 12 and section 13, the Hindu Adoptions and
Maintenance Act were meant only to protect the other rights vested in any person prior to the adoption and was
not intended to deprive the adopted son of the right in the property belonging to the joint family wherein such a
son would have got an interest by birth, the date of his birth only being fixed fictionally to the date of adoption.
The words, ‘any person’ in proviso (c) did not include adoptive father or adoptive mother and it also did not
include self-divestment which was the legal result of adoption with regard to those properties when such
divestment was possible by reason of either natural birth or legal device of adoption. The court added that
section 13 was enabling provision and spoke of the property of the adoptive father or mother and not the
property of the family. In conclusion, the court held that both the sections led to the conclusion that by reason of
adoption, the child became adopted in the family and got an interest in the family property. But in view of our
comments on Sitabai, we would submit that this is not a proper extension of that logic.
It appears that the Bombay High Court has on this subject rendered a row of interesting cases. In Krishnabai
Shivram Patil v. Ananda Shivram Patil,3 the court observed that the joint family property vested in a sole
surviving coparcener could not be divested on his adopting a son. In our submission it is not a correct view. As
we would see later on in this work, the birth of a son to him or adoption by him or birth of a son to a
coparcener’s widow or an adoption by her divests the sole surviving coparcener as such a son becomes a
coparcener with him. On the other hand in Yaslagadda, v. Government of A.P.4 the Andhra Pradesh High Court
held that when a coparcener governed by the Mitkashara school is given in adoption, his undivided interest in
the coparcener property would continue to vest in him even after the adoption, since proviso (b) to section 12
lays down that an adopted son would not be divested of the property already vested in him.
Page 4 of 5
As we have seen in our commentary on section 12, there is another view also, viz., no interest in the
coparcenary property vests in the child-coparcener who has been given away in adoption. Reference may
please be made to paragraph 9 of our commentary on that section.
4. Ante-adoption Agreements
The general principle enacted in the section is subject to any pre-adoption agreement to the contrary. In other
words if there is an ante-adoption agreement restraining the right of the adoptive parent to alienate any of his or
her property in any manner, then such an agreement is enforceable and the adoptive parent’s right to alienate
his property will stand modified in terms of the agreement.
The ante-adoption agreement is usually between the natural parent and the adoptive parent as the Act
stipulates adoption of a child below the age of 15 years. But if the adoptive “child” is a major (where under
custom such an adoption is valid), then such an agreement can also be entered into with adoptee.
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 section 9(5) and section 17 of
Act.1 The restrictions on the adoptive parent’s power of alienation are different from giving consideration for
adoption.
In sum, section 13 lays down that subject to any agreement to the contrary, an adoption does not deprive the
adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by Will. In
Duggina v. Duggina,2 under an ante-adoption agreement adoptive mother was given absolute estate in certain
properties. Subsequently, the adopted son dies. The adoptive mother made a second adoption. It was held that
the second adoption did not divest her of her estate. If there is no ante-adoption agreement fettering the power
of adoptive parent, the adoptive parents have full power of alienating their property.
4 Tarachand v. Ram Avtar, AIR 1975 P&H 20 .

5 Nand Kishore v. Bhupindra, AIR 1966 Cal 181 .
6 Chiranjilal Srilal Goenka v. Jasjit Singh, AIR 2001 SC 266 [LNIND 2000 SC 1722].
1 Mukand v. Wazir, (1971) SC 205.
2 Jagdish v. Rajendar, AIR 1975 All 395 .
3 Rama Krishna v. Court of Wards, 26 IA 83; Surendra Keshub v. Dvorga, 19 IA 108.
4 Mukand v. Wazir, (1971) SC 205.
5 Duvanu Gopal v. B. Baba, 73 Bom LR 607.
6 AIR 1987 SC 398 .
1 AIR 1975 P&H 20. However, this case related to pre-Act Adoption and the court held that the matter would be
governed by the old law.
2 AIR 1966 Bom 174 [LNIND 1965 BOM 26]; See also Motilal v. Sarder, AIR 1975 Raj 40 .
3 AIR 1970 SC 343 [LNIND 1969 SC 280].
1 AIR 1966 SC 1523 [LNIND 1966 SC 9].
2 Proviso (c) to section 12.
1 AIR 1969 Mad 72 [LNIND 1967 MAD 89].
2 (1980) Mad LJ 494.
Page 5 of 5
3 AIR 1981 Bom 240 [LNIND 1980 BOM 244].

4 AIR 1981 AP 19 .
1 Jagdish v. Rajendra, AIR 1975 All 359 .
2 (1968) 1 AP LJ 89.
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
14. Determination of adoptive mother in certain cases.—
(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
(2) Where an adoption has been made with the consent of more than one wife, the seniormost in marriage
among them shall be deemed to be the adoptive mother and the others to be step-mothers.
(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be
deemed to be the step-mother of the adopted child.
(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently
shall be deemed to be the step-father of the adopted child.
Comments
1. Scope
Section 14 lays as to how an adopted child will be related to certain relations of the adopter. The question may
arise in the following circumstances:
(1) When a Hindu adopts with the consent of his wife or wives, then in what relationship does the child
stand with the wife or wives of adopter?
(2) When adoption is made by a Hindu without the consent of his or her spouse, in those cases where the
consent of the spouse can be dispensed with, then how the child is related to the spouse of the
adopter?
(3) When an adoption is made by a widow or widower, then—
(a) In what relationship does the child stand with the spouse of the adopter whom he or she married
subsequently, or
(b) In what relationship does the child stand to the deceased spouse of adopter?
Page 2 of 4
(4) When an unmarried person (virgin or bachelor) or divorcee adopts a child and subsequently remarries,
then—
(a) What will be the relationship of the child with the subsequent married spouse, and
(b) In the case of a divorcee, what will be the relationship of the child with the divorced spouse?
Section 14 provides answers expressly to questions posed in (1), (3) (a) and (4)(a) and provides answers to
other questions by implication. What are the answers by implications? The Supreme Court answers them in
one way and the Andhra Pradesh and Madras High Courts in another way. The present writers submit that
implications drawn by the Supreme Court are wrong. We may examine the above situations one by one.
2. Clauses (1) and (2): Adoption with the Consent of the Spouse
This is the usual case. When a male adopts a child with the consent of his wife, she becomes the adoptive
mother of the child.1 If he has more than one wife, the senior most wife (senior by marriage, and not by age)
becomes the adoptive mother and rest become step-mothers.2 Since a married woman cannot adopt even with
the consent of her husband, the question of any relationship with her husband does not arise. Such an adoption
is void.
3. Clause (3): Relationship with a Subsequently Married Spouse
When a virgin, bachelor, widow or widower adopts a child and marries subsequently the spouse is related to
the child as a step-parent (step-mother or step-father).3
4. Clause (4): Relationship of the Adopted Child of a Widow, Widower or Divorcee with the Deceased
Spouse or Ex-spouse
The questions are: when a widow or widower adopts a child, is the child in any way related to the deceased
spouse of the adopter? Or, when a divorcee adopts a child, is the child related to the divorced spouse? Many
will agree that the second question need not be posed as the answer is obvious: there cannot be any
relationship. Then, our answer to the first question is by any way different from that answer?
We may summarise the pre-Act position briefly as that will help us in the understanding of the problem. Under
the old law, whenever a widow was permitted to adopt, she adopted to her deceased husband. This
necessitated another fiction. The child was related back to the date of the death of her husband. Thus, on
account of this double fiction, adopted child became the child of the deceased husband. This double fiction did
not apply in the converse case; when a widower adopted a son, the child did not become the adoptive son of
widower’s deceased wife. It is obvious that if a bachelor adopts a son, whether under the old law, or new, there
is no question of the adopted child having a mother. Similarly if an unmarried woman adopts a child (as she can
now), there is no question of the child having a father.
Hindu law of adoption has all along taken the position that an adoption by an individual is an adoption in the
adopter’s family, therefore, the adopted child is related to all relations on his adoptive father’s as well as
adoptive mother’s side. This is also the position in modern Hindu law.1 But the relationship of the adopted child
in the adopter’s family will be in accordance with the state of adopter’s family. If a bachelor or widower adopts a
son, the child will have only one side, the paternal side and will have no maternal side. Law cannot provide a
mother to the adopted child of a bachelor. Even when a bachelor marries, his spouse will be a step-parent,2 to
the child. When an unmarried woman adopts a child the same is the position. And it is submitted that the same
will be the position of a divorcee (male or female) who adopts a child and then marries. His or her new spouse
will be a step-parent to the child and the ex-spouse (divorced spouse) is not related to the child. In our
submission the same should apply when a widow adopts, but our Supreme Court says that the deceased
husband will be the adoptive father.
We may summarise the arguments of the Supreme Court. Bhargava, J., referring to section 5(1), observed that
two kinds of adoptions are envisaged by the Act. One is an adoption by a Hindu, and the other is an adoption to
a Hindu. As adoption by a female Hindu, where husband is dead, has finally renounced the world, has been
judicially declared to be of unsound mind; or has ceased to be a Hindu, are instances, according to the learned
Judge, of the latter type of adoptions. Then, his Lordship said that section 12 lays down that all ties of the child
will be created “in the adoptive family.” Bhargava, J., then posed the question: which is the family of the widow?
Most Hindus would unhesitatingly and promptly answer, “her deceased husband’s family is her family”. And like
a true Hindu, Bhargava, J., also gave this answer. The next step then was inevitable: on adoption by a widow
the adopted son is deemed to be a member of the family of her deceased husband. The right, which the child
has, to succeed to the property of his being a son in the natural family is clearly replaced by a similar right in the
Page 3 of 4
adoptive family and thus he would succeed to the property of the deceased husband of the widow in the
capacity of his adopted son.
In our submission the construction placed by the Supreme Court in Sawan Ram v. Kalawati,1 and Sita Bai v.
Ramchandra,2 (the arguments are the same on the provision of the Act) is strained and artificial and is the
result of their Lordships’ quest of find a father to the adopted son of a widow. It also shows a lingering, almost a
blind, adherence to the dead past. To what anomalies and absurdities, this construction may lead, if taken to its
logical end may be demonstrated here:
(i) X, a Hindu died issueless in 1956, leaving behind three widows A, B and C. A B and C each adopts a son (it
cannot be now argued that only senior-most widow will have the right to adopt). This will mean that X will have
three adopted sons. All the three were adopted to him, though not by him. Or, X, having two wives A and B,
adopted a son in 1957 with the consent of both. A became adoptive mother. X died in 1958 and soon after B
adopted a son to herself. Again, X will have two adopted sons, one adopted by him and the other adopted to
him. Take another example: X died in 1956 leaving two widows A and B and a son from his wife A. B adopts a
son. X will have a natural born son and a subsequently adopted son. Any of these feats could not have been
performed by X when he was alive.
(ii) A married woman whose husband has become a sanyasi adopts a son P and a daughter R. P and R will be
son and daughter of the sanyasi husband.
A married woman whose husband X has become a Muslim, adopts a son. Her Muslim husband becomes the
adoptive father. A, a woman whose husband has been judicially declared insane, adopts a son, the insane
husband becomes the adoptive father. A curious result: a Sanyasi, a Muslim, an insane person all having
adopted sons!
We may now analyse the arguments of Bhargava, J., (1) His Lordship seems to have been obsessed by the
notion that adoption completely and finally transplants the child in the adoptive family and all ties are created in
a adoptive family as if the child is a natural born child in the family. But the question is: can these ties be pre-
dated? If a child is born, on say, 1-1-1971, can we pre-date his relationship of the family, say to 1-1-1960; if not,
how can we pre-date the relationship of the adopted child to the death of the husband of the widow-adopter?
Then the ties, in the adoptive family can be only in accordance with the state of family at the time of adoption.
This is to say, if a bachelor adopts, the child will have a father and will have no mother. The same will apply to a
virgin’s adoption. And it is submitted, the same should apply when a widow or widower adopts a child.
(2) The second obsession has been the notion that widow’s family is her husband’s family. After the Hindu
Widow’s Remarriage Act, 1856, or at any date, after the Hindu Marriage Act, death dissolves the marriage, that
is how a widow is permitted to remarry. That is to say, her position, is, more or less, that of the divorced wife.
Can he say, that the family of the divorcee-wife is the family of her divorced husband? Obviously not, then why
do we insist on saying that the widow’s family is the family of her deceased husband? (Can we say this
because she entitled to succeed to her deceased husband. Which she cannot, do in respect of a divorced
husband?) Most of us will agree that a divorced wife can have her own family (without remarriage), then why
should we hesitate to say that a widow too can have her own family, just as a widower or divorcee can have
his. If we accept these propositions, then there will not be any difficulty in accepting that when a widow adopts,
the child will have only an adoptive mother and will have no adoptive father.
(3) Two little words in section 5, ‘by’ and ‘to’— ‘adoption by’ and ‘adoption to’— led their Lordship to think that
two types of adoptions are visualized by that Act (referred to earlier). It has been seen that performance of
ceremonies of adoption can be delegated to another person. Thus, when an aged, infirm, or sick person adopts
a child he adopts the child to himself or herself, but the ceremonies may be performed by someone else on his
or her behalf. When some one else performs the ceremonies, the adoption is to the person on whose behalf
ceremonies are performed by someone else. When an adopter himself or herself performs the ceremonies,
then adoption is by him or her and to himself or herself. It is only in the former sense that adoption can be made
‘to’ another person.
(4) The Act provides for the relationship of the adopted child with the existing or future spouse of the adopter
and not with the ex-spouse. It is submitted rightly so. It is not necessary to state the obvious, as in such a case
the child has no relationship with the ex-spouse or deceased spouse. Thus when a divorcee-woman, a widow
or divorcee-man adopts a child there is no relationship whatever with the ex-spouse or deceased spouse of the
adopter.
Page 4 of 4
5. Section 14 and the Hindu Succession Act
The importance of the section lies not only for the purposes of adoption (such as a step-mother of a adopted
child when becomes a widow can make an adoption for herself) but in respect of succession under the Hindu
Succession Act, mother of a Hindu male is class I heir, while step-mother is in class II, category VI.
A step-father is not an heir under the Act. Similarly, step-child is not an heir to its step-father or step-mother.
Thus for the purposes of inheritance section 14 is very important. It is also important in respect of maintenance
and guardianship, as one is a natural guardian only for one’s children (son or daughter) but not of step-children.
One is liable to maintain only one’s children and not step-children.
1 Section 14(1).
2 Section 14(2).
3 Section 14(3) and (4).
1 Section 12.
2 Sub-sections (3) and (4) of section 14.
1 AIR 1967 SC 1761 [LNIND 1967 SC 153].
2 AIR 1970 SC 343 [LNIND 1969 SC 280].
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
15. Valid adoption not to be cancelled.—

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.
Comments
1. Scope
This section lays down the following propositions of law:
A. No adoptive parent can cancel the adoption once made validly.

B. No adopted child can renounce his status of an adopted child or his adopted parent once adoption is
made validly. Neither can he or she go back to his or her natural family.
C. No natural parent can cancel the adoption.
D. No one else has the power or right to cancel a valid adoption.
This section applies to all adoptions made after coming into force of the Hindu Adoptions and Maintenance Act,
irrespective of the fact whether the adoptee is a male or female.
This section does not apply to adoptions made under Hindu law or custom before the coming into force of the
Hindu Adoptions and Maintenance Act. Thus, adoptions made before the coming into force of the Act are still
governed by the old law.1
2. Cancellation of Adoption
It has been the well-established provision of Hindu law that once an adoption is made it cannot be cancelled by
any party to it including the child as well as by any other person. This is also the position after the coming into
force of the Act.2
3. Adoptive Parents
Page 2 of 2
As we have stated in our commentary earlier, this is a unique aspect of Hindu law that once an adoption is
made, the adoptive parents can, under no circumstance, cancel the adoption, howsoever unsuitable, or unruly
the child may turn out to be. Even if the child proves to be a vagabond or scoundrel, the adoptive parents
cannot return the child to the natural parents. Nor can they further give him in adoption. Such a child will stick to
them and will be their son or daughter, as the case may be.
The adoptive parent obviously means, the male or female who adopts the child. It also includes the wife of the
male adopter with whose consent the adoption was made.
We have seen earlier that when a single person adopts a child and then marries, then the subsequently married
spouse will be the step-parent. Obviously the step-parent can have no power to cancel the adoption. Thus
neither the adoptive parent nor any other person can cancel an adoption.1
4. Natural Parents
It has been an equally well-established proposition of Hindu law, and modern Hindu law retains that position,
that the natural parents too cannot cancel an adoption. Even if when a tragedy overtakes the natural family so
much so that it is deprived of any son (by death of the natural son or sons), the natural parent cannot claim
back the child.2
5. Renunciation of Status by the Adopted Child
We have seen earlier that when a natural parent gives his child in adoption, the child has no choice. He is not
consulted. His consent or dissent is immaterial. The same is the position under the modern law. An adopted
child whether given in adoption by his natural parent or guardian cannot renounce his status. The adoption is
permanently binding on him. He cannot under any circumstances elect to go back to his natural family or to be
on his own. He will remain in all circumstances the adopted child of his adoptive parent.
6. Agreement to Cancel Adoption
It is also not permissible for the natural parents and the adoptive parents to enter into an agreement stipulating
the circumstances in which an adoption may be cancelled. Such an agreement will be void. Nor can the
adopted child, where adoption of the adult child takes place, enter into any such agreement.
1 Dyniraiji v. Chandra Prabha, AIR 1975 SC 748 .

2 Nand v. Bhupindra, AIR 1966 Cal 181 ; Gopal v. Kanta, AIR 1972 MP 193 .
1 Asha Bai v. Prabhu, AIR 1960 Raj 304 .
2 Gopal v. Kanta, AIR 1972 MP 193 .
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
16. Presumption as to registered documents relating to adoption.—

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 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.
Comments
1. Scope
This section lays down a rule of presumption in respect of registered adoption deed. If a registered deed of
adoption is presented to the court, the court shall presume that an adoption has taken place in compliance with
the provisions of the Act. But the presumption is a rebuttable presumption.
In Balak Ram v. Het Ram, AIR 2009 (NOC) 31 (H.P), the Himachal Pradesh High Court held that the
presumption as to validity of adoption would arise only if the conditions stipulated under section 10 of the Act
stands complied with. If the conditions stated in section 10 are not complied with while adopting a child, the
adoption is statutorily void under section 5 and instruments evidencing the same would be of no consequence.
Mere recital or registration of document by itself would not be a proof enough to show that mandatory
requirement as stipulated under section 10 (iii) and (iv) stands complied with.
Proof of a disputed adoption often presents acute problem. Under Hindu law registration of adoptions is still not
mandatory. Mere absence of registered deed is not sufficient to reject adoption.1 Even a written deed of
adoption is not necessary. Where there is written deed, it is not laid down in our law that it must be registered.
The section merely lays down that if there exists a registered deed of adoption, a presumption in favour of
validity of adoption will arise. But the party disputing adoption can rebut the presumption.
2. Proof of Adoption
The following propositions in regard to proof of adoption are well-established:

Page 2 of 6
(a) An adoption has to be proved as any other fact.

(b) In the case of ancient adoptions, i.e., where there is a lapse of long period between the date of
adoption and the date of challenge, the presumption may be raised in favour of the validity of adoption.
(c) Registered deed of adoption raises a presumption in favour of validity of adoption.
In Alturi Brahmanandam v. Anne Sai Bapuji, AIR 2008 AP 235 [LNIND 2008 AP 330], the Andhra Pradesh
High Court held that the Judgment in Hanumantha Rao v. Hanumayya, 1964 (1) Andh WR 156, conclusively
proves that there is a custom among members of Kamma caste for adopting a person who is above fifteen
years of age. The Privy Council in the case of Raja of Pittapur, AIR 1918 PC 81, observed that when a custom
is brought to the notice of Courts in the country, the Courts may hold that custom exists without necessary proof
in each individual case. In view of the above, the custom among members of Kamma caste in Andhra Pradesh
for adopting a person over and above fifteen years of age need not be proved again in this case and on that
ground presumption under Section 16 of the Act cannot be ignored.
3. Adoption to be Proved Like any Other Question of Fact
Any person relying on an adoption must establish it like any other question of fact. However, there is no
particular type of evidence that is necessary to prove an adoption. Those who rely on an adoption must
establish it like any other question of fact, whether they are plaintiffs or defendants.2 Any person who seeks to
displace the natural mode of succession by establishing an adoption, the burden of proof lies on him and he
must discharge the burden by proving the factum of adoption and necessary ceremonies of marriage and all
other factors that are necessary to constitute a valid adoption.1 In Dal Bhadur Singh v. Bijai Bahadur Singh,2
where an adoption was set-up by the widow, the court said that not only the factum of adoption and ceremonies
of adoption should be proved but it should also be proved that the widow had an authority to adopt.
Under Hindu law no writing of adoption was necessary under the old law nor it is necessary under the new law.
However, where devolution of large properties is concerned or when parties are in high position, usually a
written deed is entered into, the absence of a writing would require a close scrutiny of all the facts and
circumstances of adoption and stronger evidence of adoption would be necessary.3 However, direct evidence
of adoption is not necessary. Where an adoption took place a long time ago, and where the adopted son has
been all along treated by members of the family and others and in public transaction, a presumption will be
made that a valid adoption took place.4
4. Presumption in Favour of Ancient Adoption
About the ancient adoptions, the Privy Council in Kanchumarthi v. Kanchumarthi Raju,5 said that “after such a
long-term of years, and the variety of transactions of open life and conduct, upon one footing, and one footing
alone— namely that adoption was recognized as a valid act—the burden resting, altogether apart from the law
of limitation, upon any litigant who challenges the authority of an admitted adoption, is indeed of a heaviest
order.” In this case adoption was challenged after 42 years. To insist upon proof of factum of adoption in such
cases would lead to the anomaly that the older the adoption set-up, the more vulnerable becomes occupant’s
position.6 In Devi Prasad v. Tribeni Devi,7 where a fifty four-year old adoption was questioned, the Supreme
Court, after a review of authorities, said:
.........although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact
yet from the long period during which he had been received as an adopted son, every allowance for the absence of
evidence to prove such fact was to be favourably entertained, and that the case was analogous to that in which the
legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a
party, who had a right to question the legitimacy, where the defendant, in order to defend his status, is allowed to
invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his
family; that in the case of a Hindu, long recognition as an adopted son, raised even a stronger presumption in favour of
the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in
another family.
The court added that in the absence of direct evidence much value has to be attached to the fact that the
alleged adopted son had without controversy succeeded to his adoptive father’s estate and enjoyed till his
death and that documents during his life and after his death were framed upon the basis of the adoption. Thus,
in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted
son at a time when there was no controversy is sufficient to prove the adoption even though evidence of actual
giving and taking is not forthcoming.1 In Sauney Majhi v. Duli Dei,2 the court stated that when an adoption is
Page 3 of 6
questioned after considerable lapse of time, every allowance for the absence of evidence to prove such fact
must be favorably entertained as after the lapse of long period, direct evidence to prove adoption may not be
available. But where direct evidence is available for establishing the performance of ceremony of adoption, the
relaxation permissible in regard to evidence of ancient adoption should not be available. In this case on the
basis of oral and documentary evidence on record it was not proved that adoption did take place. In Damodar
Lal v. Lalli Lal,3 the Rajasthan High Court observed:
It is true in the cases relied upon by the learned counsel for the appellant, it has been held that the presumption of
validity of adoption can also be raised when adoption has taken place long back and the adopted son has been
recognized to be such by the family concerned. But the question of presumption has been considered in the light, as
necessary evidence may not be forthcoming on account of lapse of time. But where the question of invalidity is based
on admitted relationship of the adopter with the mother of the adopted son and when it can be found that the son, who
has been adopted, could not have been adopted in law, then the question of raising of presumption does not arise.
Similarly, in Rahasa Pandiani v. Gokulananda Panda,4 where a 1942-adoption was challenged, Thakkar. J.,
rightly said:
In the case of an adoption which is not supported by a registered 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 contending that there was such an adoption. Such is the position as an adoption would divert the normal
and natural course of succession. Experience of life shows that just as there have been spurious claims about
execution of a Will, there have been spurious claims about adoption having taken place. And the court has, therefore,
to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the
suspicion of the court and the conscience of the court is not satisfied that the evidence preferred to support such an
adoption is beyond reproach.
5. Presumption in Favour of Adoption where Registered Deed of Adoption Exists
This section lays down that a registered deed of adoption raises a presumption that the adoption has been
made in compliance with the provisions of the Act. The adoption-deed which raises the presumption in favour of
validity of adoption:
(a) should have been signed by the person, i.e., the natural parent or guardian, who gave the child in
adoption and by the person who took the child in adoption,
(b) should purport to record the adoption of the child, and
(c) should have been registered under any law of registration in force at the time of the registration of the
deed.
In Md. Aftabuddin v. Chandan Bilasini,1 the Orissa High Court said that to raise a presumption under section
16, the following conditions should be satisfied:
(i) there must be a document;

(ii) it must be registered under the law in force;
(iii) it must purport to record an adoption which has taken place;
(iv) the document must be signed by both the giver and the taker of the child in adoption and not by only
one of them; and
(v) it must be produced before the court
The court added that if any of these ingredients is wanting the presumption does not arise. The document
should state that giver and taker of the child in addition have consented, and complied to all other matters
necessary for a valid adoption has been made. These matters should not be expressed in separate documents.
In an adoption deed since performance of adoption ceremonies was mentioned and recorded, party challenging
adoption failed to disprove it. Presumption was held to be available and flowing from the recitals of the deed2.
When a registered deed of document is produced in support of an impugned adoption and the adopter is an
illiterate person, the person who wants that the court should raise the presumption in his favour, should prove
that the document was read over and explained to the adopter, there was good faith in the execution of the
Page 4 of 6
document, and that the adopter and person giving the child in adoption have signed the document after fully
understanding the purport of the document.3
In Ram Jagat v. Kanchandei,4 the Allahabad High Court observed that where the adoption is supported by a
registered deed, then a presumption has necessarily to be drawn by the court that the adoption was made in
compliance with the provisions of the Act, and this is a mandatory requirement. But, then, the Court added, 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, and if this is not so, the Court will not be bound to rely upon the statutory
presumption. No presumption will arise from an adoption-deed which has been signed only by the person who
has taken the child in adoption. It is obligatory that the deed is signed both by the giver and taker.1
In Sushil Chander v. Bhoop Kunwar,2 the Allahabad High Court, after reiterating that a registered adoption
deed gives rise to mandatory presumption that the impugned adoption was made in accordance with the
provisions of the Act, said that if an adoption-deed is challenged on the ground that it was executed under fraud
or undue influence then the burden of proof is on the person who alleged fraud or undue influence.
In Tekulapally Veera Reddy v. Tekulapally Narayana Reddy, AIR 2008 AP 60, the question arises as to the
locus standi of an adopted son to contend a suit filed by his adoptive mother. The Andhra Pradesh High Court
held that where the properties in question belonged to the family of plaintiff wife in respect of which a suit under
Section 31 of the Specific Relief Act, 1963 was instituted and the plaintiff had adopted the second plaintiff as
her son after death of her husband after executing registered adoption deed, the presumption would be
available in favour of adoption view of Section 16 of thehindu Adoptions and Maintenance Act, 1956. Further,
by virtue of Section 8 of the Hindu Adoptions and Maintenance Act, 1956 a female Hindu had the capacity to
take in adoption. Therefore, the adoption deed would be valid and the adopted son would have the locus stadni
to continue the litigation under Section 31 of the Specific Relief Act, 1963 after the death of his adoptive mother.
In Saroja v. Santhilkumar,3 all rituals were followed, adoption deed was registered, photographs and its
negatives were part of record. In such circumstances adoption has to be believed.
6. Presumption under section 16 is a Rebuttable Presumption
In Jai Singh v. Shakuntala,4 the Supreme Court has held that presumption under this section is rebuttable and
the words “shall presumption required to be drawn by the section is rebuttable presumption.” In Ram Jagat v.
Kanchadei,5 where a registered adoption-deed was produced in support of the adoption, it was shown that no
ceremonies of adoption took place, the court held that the presumption stood rebutted. Where it was shown that
adopter has earlier adopted a son, the present adoption being invalid, no inference can be drawn from the
registered adoption-deed.6 The burden of proof to dislodge the adoption where there exists a registered
adoption deed is on the person who wants to dislodge the adoption and he can do so only by giving cogent
evidence.7
In Banwari Lal v. Trilok Chana,1 the Supreme Court held that the statement made by the testator in the Will
about the child being his adopted son is certainly a piece of admissible evidence but there is no rule of law or
prudence laying down the principle that such a statement must be regarded as conclusive, and the burden of
proving his adoption, lies heavily on him who alleges the adoption. In other words, recital in a will about a
person being an adopted son is a piece of admissible evidence, but no conclusive proof of adoption. In Basdeo
Bhardwaj v. Ram Sarup,2 the Punjab and Haryana High Court said:
There is no option left to the court, and it is bound to take the fact as proved, until evidence is given to disprove it and
the party interested in disproving it must produce such evidence if he can. The factum probandum was that the
adoption had been made in accordance with the provisions of this Act. The presumptive proof is sought to be
disproved by casting aspersions on the credibility of the oral evidence. Supposing that was successfully done, that will
only prove that the witnesses are not to be relied upon but that would not suffice to disprove the presumption. It is true
that the presumption is a presumptio juris and it is competent to a party to show that the interference was fallacious. It
must be conceded that section 16 does not raise a presumptio jurirs et de jure when no evidence to displace
presumption is allowed to be given.
Section 16 of the Act does not preclude a party contesting the adoption to rely upon circumstance available
from record, apart from any evidence adduced in support of factum of adoption, in rebuttal of that
presumption.3
Page 5 of 6
The presumption under section 16 about the validity of an adoption was held to be rebutted in the following
cases:
(a) Where the deed was signed by the person who presented it for registration and not by the person who
gave the child in adoption and who took it.4
(b) Where the deed of adoption was not signed by the adopter and ceremony of adoption took place
sometimes thereafter.5
(c) Where two separate adoption deeds were made, one signed by the giver and the other by the taker.6
(d) Where it was shown that the adoption deed was not signed voluntarily.7
Although there are no special rules of evidence to establish an adoption, the burden of proving an adoption is a
very grave and serious one, as an adoption displaces the natural succession. It is true that if the adoption is
questioned after the lapse of a long period, allowance will have to be made for the absence and disappearance
of direct evidence of witnesses who had attended and participated in the function and too much importance
sought not to be attached to discrepancies in the evidence which would be inevitable if witnesses speak about
events and incidents which took place decades back. A contemporaneous deed of adoption coming into
existence at the same time as the adoption took place, would no doubt, be strong cogent evidence. Again,
transactions and dealing and documents in which reference is made to the adoption in question wherein third
parties or relative referred to the status of the person as an adopted son and persons who have knowledge of a
family history of the party concerned have referred to that status would also be useful evidence. If there is no
contemporaneous deed of adoption and if there is no satisfactory proof of the giving and taking and if the
inference of adoption is to be drawn from the recitals in the documents and the assertion of rights in documents
dealing with the estate as the adopted son, etc., the documentary evidence must manifest one consistent
pattern of conduct and if there was rival competing sets of documents, it cannot be said that the grave and
serious burden could be said to be discharged.1
Registration of a deed of adoption is not conclusive to prove the factum of adoption, which if challenged, must
be established by oral testimony of persons who were present at the ceremony deposing to the effect that all
the formalities including the giving and taking of the boy in a lawful manner had taken place. Where there are
witnesses on either side on the question of performance of the ceremony of adoption the conduct of the parties
after the date of the alleged adoption may tilt the scale one way or the other.2
In sum, where there exists a registered deed of document a presumption of valid adoption had to be raised. It is
a mandatory duty on the court. But the presumption under the section is a rebuttable presumption. The
following words in the section “until and unless it is disproved” indicate it clearly.3
Registered deed of adoption cannot be looked into in collateral proceedings. It can only be challenged in
independent proceedings.4 A person claiming to have been adopted by a person and his first wife when the
former was estranged from the said first wife could not prove adotion.5
1 Chaudrani Bai v. Pradeep Kumar, AIR 1991 MP 286 .

2 Chowdry Padam Singh v. Koer Udaya Singh, (1969) 12 MIA 350; Kishori Lal v. Chunni Lal, (1908) 36 IA 9;
Muthuswami v. Chidambara, (1948) 2 MLJ 468 (PC); Raghavamma v. Chenchamma, AIR 1964 SC 136 [LNIND 1963
SC 101], where the Supreme Court said that it is well-established that a person who seeks to displace the natural
succession to property alleging an adoption must discharge the burden that lies upon him by proof of factum of
adoption and its validity.
1 Haribhav v. Ajabrao Ramji, ILR (1946) Nag 978.
2 (1930) 57 IA 14.
Page 6 of 6
3 Diwakar Rao v. Chandan Lal Rao, ILR (1917) 44 Cal 201 (PC).
4 Rajendra Nath v. Jogendra Nath, (1946) 14 MIA 63; Tammana v. Parappa, AIR 1945 PC 111 .
5 (1927) 53 MLJ 854 (PC).
6 Lala Rup Narayan v. Gupal Devi, (1909) 36 IA 103; Prem Devi v. Shambhu Nath, ILR (1920) 42 All 382 .
7 AIR 1970 SC 1286 [LNIND 1970 SC 154].
1 See Balinki Padhano v. Gopal Krishna Padhano, AIR 1964 Ori 117 [LNIND 1963 ORI 72].
2 AIR 1985 Ori 22 [LNIND 1984 ORI 166]; See also Sitaram v. Paranammal, AIR 1985 Ori 173 .
3 AIR 1985 Raj 55 .
4 AIR 1987 SC 962 .
1 AIR 1977 Ori 71 .
2 Baru v. Tej Pal, AIR 1998 All 230 [LNIND 1997 ALL 1279].
3 Annapurna Sahuni v. Narendra Prasad, AIR 1967 Ori 129 [LNIND 1966 ORI 46]; see also Gopi v. Madan Lal, AIR
1970 Raj 190 .
4 AIR 1984 All 44 .
1 Krishnabai Shivram Patil v. Ananda Shivram Patil, AIR 1981 Bom 240 [LNIND 1980 BOM 244]; See also Romu v.
Deputy Director, Consolidation, (1981) All LR 274.
2 AIR 1977 All 441 ; Senthilkumar v. Dhandappa, AIR 2004 Mad 403 [LNIND 2004 MAD 707].
3 AIR 2011 SC 642 [LNINDU 2011 SC 19].
4 AIR 2002 SC 1428 [LNIND 2002 SC 204].
5 AIR 1984 All 33 .
6 Gopal Krishna v. Kanta Prasad, AIR 1972 MP 193 .
7 Konchada Laxminarayan Subbudhi v. Konchanda Padmanav Subbudhi, AIR 1973 Ori 3 [LNIND 1972 ORI 56];
Daulatrao v. Horish, (1972) 2 SCWR 469.
1 AIR 1980 SC 419 [LNIND 1979 SC 420].
2 ILR (1968) 2 P&H 231 .
3 Shidappa v. Chennabassapa, AIR 1973 Mys 245 ; see also Govind v. Chimabai, AIR 1968 Mys 309 .
4 Mahadev v. Bainabi, AIR 1972 Kant 79 .
5 Chander Sheker v. Bali, (1971) Simla LJ 298.
6 Md. Aftabuddin v. Chandan, AIR 1977 Ori 69 [LNIND 1976 ORI 63].
7 Govinda v. Chinabai, AIR 1968 Mys 309 ; Madan v. Sham, AIR 1973 P&H 122 .
1 Nagayasami v. Kochadai, AIR 1969 Mad 329 [LNIND 1967 MAD 220]; case law has been reviewed.
2 Bishwanath v. Dhapu Devi, AIR 1966 Cal 13 ; Karam Chand v. Baljit, AIR 1990 P&H.
3 Pathivada Ramaswami v. Korada Surja Prakasa Rao, AIR 1993 AP 336 [LNIND 1993 AP 47].
4 Ashwani Kumar v. Vidya, AIR 2007 All 105 .
5 Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362 [LNIND 2005 SC 750].
End of Document
5th ed
Paras Diwan

(78 of 1956)
CHAPTER I
17. 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 or reward the receipt of which is prohibited by this section.
(2) If any person contravenes the provisions of sub-section (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 State
Government or an officer authorised by the State Government in this behalf.
Comments
1. Scope
This section lays down that no consideration can pass on either side for adoption. This section applies to the
adoptions made after the commencement of the section.
Under the old Hindu law also this was the position. Receipt of any consideration in money or other property by
the natural father or any other person in consideration of giving or taking the child in adoption was illegal as
opposed to public policy.
Similarly, on agreement to give something or to take something in consideration of giving or taking a child in
adoption was void, being against public policy. But this did not render the adoption invalid. Thus, where in
consideration of adoption, some money and property had actually been given or taken, the adoption made as a
consequence of the same was regarded valid, since the gift and acceptance of the boy was regarded as a
distinct transaction from the agreement to give or take something in consideration of adoption.1
This section lays down the following:

Page 2 of 4
(a) prohibition for making or taking any payment or reward in consideration of giving or taking a child in
adoption,
(b) prohibition from entering into any agreement under which one agrees to give or receive any payment
or reward in consideration of giving or taking a child in adoption,
(c) giving or taking or agreeing to give or take money or any other property in consideration of adoption of
child is made an offence for which the section provides for penal consequence. The punishment may
be a term of imprisonment which may extend to six months or a fine or both, and
(d) procedural safeguard has been laid down for the prosecution of persons committing an offence under
the section.
The provision under this section should be understood separately from the provision contained in section 9(5)
which 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 payment or reward in consideration of the
adoption.” Section 17 contains a general provision, while section 9(5) contains a particular provision in respect
of giving a child in adoption by the guardian. The main difference in the two provisions is that 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 section 17. The punishment provided under section 17, it is submitted can also be inflicted
on a guardian who violates the provision of section 9(5).
A question as to whether ante-adoption agreements amount to payment of reward or consideration arose in

Judupi Venkata Vijaya Bhaskar v. Judupi Keshava Rao.1 In the instant case adopted son and adoptive father
had agreed that son shall not set up any claim with regard to certain properties belonging to adoptive family. It
was held that under this section one has to receive or agree to receive consideration with regard to adoption. It
was further held that this section does not prohibit every kind of agreement between major adoptee and would
be adoptive father.
2. Sub-section (1): Prohibition to give or take anything in Consideration of Adoption
No person is allowed to receive any payment or reward in consideration of adoption of any person. The section
uses the words “no person” and thus it is wide enough to include any person, the giver or taker of adoption as
well as any middle-man or any relation or friend. However, it would not include the priest who officiates at the
religious ceremony and is given dakshina for that purpose. But if the priest acts as a go-between or an agent or
a tout in the matter of adoption of the child, then he too can be punished.
3. Sub-section (1): Agreement to take or Receive anything in Consideration of Adoption
This section not merely prohibits taking or receiving any payment or reward in consideration of adoption of a
child, but it also prohibits any agreement to take or receive anything in consideration of adoption. Such
agreements will fall in the category of unlawful agreement. Such agreements would be covered by the first
clause of section 23 of the Contract Act. Such agreements are void and unenforceable. Further, the person
entering into such a contract also attract penal consequence laid down in sub-section (2) of this section.
4. Payment or Reward
The term “payment” obviously refers to money. When money consideration passes or is agreed to pass, then it
is called “payment”. On the other hand, the word “reward”’ is of wider connotation and will include money or any
other property. These terms are very well understood in common parlance and should be given the same
meaning. The Act does not define them.
5. Sub-section (2): Punishment
Sub-section (2) of the section provides for punishment of any person who violates the provision of the section.
Such a person may be the adoptive parent, the natural parent, or the person performing the ceremony of giving
or taking the child in adoption, the adoptee or any intermediary. Although in section 9(5), there is a separate
provision of the guardian, a guardian who violates the enjoinment of section 9(5) will be punishable under this
section.
The punishment provided under sub-section (2) is a term of imprisonment which may extend to six months or
with fine or with both, the quantum of fine is not specified. The nature of imprisonment is also not specified. It is
submitted that ordinarily it would be simple imprisonment, but in an exceptional case the court may award
rigorous imprisonment.
Page 3 of 4
6. Sub-section (3): Procedural Safeguard
Sub-section (3) provides for procedural safeguard in respect of prosecution on any person for the violation of
sub-section (1). Before any prosecution is launched under the section, previous sanction of the State
Government is necessary. The State may authorize any of its officer to accord sanction for the prosecution of
the offender.
In all other respects the procedure for the prosecution of the offender under the section will be governed by the
Code of Criminal Procedure, 1973.
7. Adoption made Contravening the Enjoinment of sub-section (1)
An adoption in which some payment has been made or agreed to be made by any person, is not invalid. The
agreement to take anything in consideration of adoption is unlawful and void, but if any adoption is made in
consequences thereof the adoption will remain valid. In short, an adoption otherwise valid will not be rendered
invalid because of it being made in infringement of the provisions of section 17(1).
8. Agreement not to Adopt
It would appear that an agreement not to adopt being contrary to public policy would be void. Under the pre-Act
law there are some precedents to that effect, but there is some confusion also. In Anauga Bhima Deo v. Kunj
Behari Deo,1 the question before the court was whether a widow could bind herself not to adopt under an
agreement with reversioners? The Madras High Court held that such an agreement was void being contrary to
public policy. In this case her husband had authorized her to make an adoption and the court added that this
authority that was given to her was for the benefit of her deceased husband and not for her benefit. In Suriya
Ram v. Raja of Pittapur,1 two brothers constituting a coparcenary entered into 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, who were in existence not to adopt or affect the rights of an
adopted child (in case an adoption was made) as the agreement would alter the law of descent and would be
contrary to the principle laid down in Tagore case. But the court left open the question whether the agreement
would bind the brothers. In Neelangonda v. Ujjangonda,2 also the Privy Council left question open. Similarly, in
Purushotam v. Ratanbai,3 where an injunction was sought against a person who wanted to make an adoption
contrary to the terms of agreement entered into by him with the plaintiff, the court refused to issue an injunction,
though again the question of validity of the agreement was not decided.
In our submission an agreement not to adopt is void being against public policy. It should not be confused with
the relinquishment of right to adopt by a senior widow in favour of the junior widow,4 though such a question
would not arise under the modern Hindu law as each widow can make an adoption in her own right to herself.
Mayne opined that it is doubtful “whether a contract not to adopt can be valid any more than a contract not to
marry. But an adoption in breach of it must be considered to be valid, on the principle of factum valet, whether
or not the promisee will be entitled to damages”.5 In our submission since an agreement in restraint of adoption
is contrary to law and hence void, the question of any party claiming damages does not arise.
9. Agreement to give or Accept a Child in Adoption
In our submission since an agreement not to adopt is void being against public policy, an agreement to give or
accept a particular child is also void for the same reason. In Sree Narain Mitter v. Sreemutty Krishen,6 where
there was an agreement between two persons to give a child in adoption (or to accept a child in adoption), the
Privy Council said that a breach of it by one of them was a good ground for action for damages or specific
performance. In our submission this is a wrong proposition of law. No one can be compelled to give his child in
adoption and no one can be compelled to make a child in adoption under any agreement howsoever solemnly it
might be entered into, as such an agreement is contrary to public policy and hence void.
1 Murugappa Chetty v. Nagapa Chetty, ILR (1917) 40 Mad 925 .

Page 4 of 4
1 AIR 2003 SC 3314 [LNIND 2003 SC 813].

1 (1919) MLT 204.
1 (1986) 13 IA 97.
2 (1949) MLJ 94.
3 ILR (1889) 13 Bom 56 .
4 Sadashiv Waman v. Reshima, ILR (1938) Bom 84.
5 Mayne, Hindu Law and Usage, 11th Edn., 200.
6 (1872) IA Suppl 149.
End of Document
5th ed
Paras Diwan
AND MAINTENANCE ACT, 1956 > ANNEXURE 1 > I GUIDELINES FOR INTER-COUNTRY
ADOPTIONS

(78 of 1956)
ANNEXURE 1
I GUIDELINES FOR INTER-COUNTRY ADOPTIONS*
1. Introductory.—
When the parents of a child want to give it away in adoption or the child is abandoned and it is considered
necessary in the interest of the child to give it in adoption, every effort must be made first to find adoptive
parents for it within the country, because such adoption would steer clear of any problems of assimilation of the
child in the family of the adoptive parents which might arise on account of cultural, racial or linguistic differences
in case of adoption of the child by foreign parents. If it is not possible to find suitable adoptive parents for the
child within the country, it may become necessary to give the child in adoption to foreign parents rather than
allow the child to grow up in an orphanage or an institution where it will have no family life and no love and
affection of parents and quite often, in the socio-economic conditions prevailing in the country, it might have to
lead the life of a destitute, half-clad, half-hungry and suffering from malnutrition and illness. Bhagwati, J. is of
the view that every effort should be made first to see if the child can be rehabilitated by adoption within the
country and if that is not possible, then only adoption by foreign parents, or as it is some time called ‘inter-
country adoption’, should be made. This principle stems from the fact that inter-country adoption may involve
trans-racial, trans-cultural and trans-national aspects which would not arise in case of adoption within the
country and the first alternative should therefore always be to find adoptive parents for the child within the
country.
II RELEVANT PROVISIONS OF THE ADOPTION OF CHILDREN BILL,
1980 RELATING TO INTER-COUNTRY ADOPTIONS
Clause 17 of the Bill lays down that no institution or organisation can make any arrangement for the adoption of an
Indian child by foreign parents unless such institution or organisation is licensed as a social welfare institution and
under clause 21, it would be unlawful to make or to give to any person any payment or reward for or in
consideration of the grant by that person of any consent required in connection with the adoption of a child or the
transfer by that person of the care and custody of such child with a view to its adoption or the making by that person
of any arrangements for such adoption. Clause 8 lays down that no provisional adoption order can be made in
respect of an Indian child except with the consent of the parents or guardian of such child and if such child is in the
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care of an institution, except with the consent of the institution given on its behalf by all the persons entrusted with
or in charge of its management, but the District Court can dispense with such consent if it is satisfied that the
person whose consent is to be dispensed with has abandoned, neglected or persistently ill-treated the child or has
persistently failed without reasonable cause to discharge his obligation as parent or guardian or cannot be found or
is incapable of giving consent or is withholding consent unreasonably. When a provisional adoption order is made
by the District Court on the application of a person domiciled abroad, such person would be entitled to obtain the
care and custody of the child in respect of which the order is made and to remove such child for the purpose of
adopting it under the law or within the country in which he is domiciled.
Clauses 23 and 24 run as under:
23.(1) Except under the authority of an order under section 24, it shall not be lawful for any person to take or send
out of India a child who is a citizen of India to any place outside India with a view to the adoption of the child by any
person.
(2) Any person who takes or sends a child out of India to any place outside India in contravention of sub-section (1)
or makes or takes part in any arrangements for transferring the care and custody of a child to any person for that
purpose shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
24.(1) If upon an application made by a person who is not domiciled in India, the District Court is satisfied that the
applicant intends to adopt a child under the law of or within the country in which he is domiciled, and for that
purpose desires to remove the child from India either immediately or after an interval, the court may make an order
(in this section referred to as a provisional adoption order) authorising the applicant to remove the child for the
purpose aforesaid and giving to the applicant the care and custody of the child pending his adoption as aforesaid:
Provided that no application shall be entertained unless it is accompanied by a certificate by the Central
Government to the effect that—
(i) the applicant is in its opinion a fit person to adopt the child;
(ii) the welfare and interests of the child shall be safeguarded under the law of the country of domicile of the
applicant;
(iii) the applicant has made proper provision by way of deposit or bond or otherwise in accordance with the
rules made under this Act to enable the child to be repatriated to India, should it become necessary for any
reason.
(2) The provisions of this Act relating to an adoption order shall, as far as may be, apply in relation to a provisional
adoption order made under this section.
III RELEVANT PROVISIONS OF THE RIGHTS OF THE CHILD
(Adopted by U.N. General Assembly on November 20, 1959)
The Preamble of Declaration of the Right of the child lays that “the child, by reason of physical and mental
immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”,
and that “mankind owes to the child the best it has to give.”
The relevant provisions are contained in principles 2, 3, 6, 9 and 10. These run as under:
Principle 2: The child shall enjoy special protection and shall be given opportunities and facilities, by law and by
other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal
manner and in conditions of freedom and dignity. In the enactment of laws for this purpose the best interests of the
child shall be the paramount consideration.
Principle 3: The child shall be entitled from his birth to a name and a nationality.
Principle 6: The child, for the full and harmonious development of his personality, needs love and understanding.
He shall, wherever possible, grow up in the care and under the responsibility of his parents, and in any case in an
atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional
circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend
Page 3 of 7
particular care to children without a family and to those without adequate means of support. Payment of State and
other assistance towards the maintenance of children of large families is desirable.
Principle 9: The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the
subject of traffic, in any form.
Principle 10: The child shall be protected from practices which may foster racial, religious and any other form of
discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and
universal brotherhood and in full consciousness that his energy and talents should be devoted to the service of his
fellow men.
IV DRAFT GUIDELINES OF PROCEDURE CONCERNING INTER-
COUNTRY ADOPTIONS
(Formulated by Expert Group and adopted by the Economic and Social Council of the United Nations in its 20th
Session)
The Guideline starts on the assumption that the best child welfare is good family welfare but where biological family
care is unavailable or inappropriate, substitute family care should be considered. The relevant provisions of the
Guideline are:
7. Every child has a right to a family. Children who cannot remain in their biological family should be placed in
foster family or adoption in preference to institutions, unless the child’s particular needs can best be met in
a specialized facility.
8. Children for whom institutional care was formerly regarded as the only option should be placed with
families, both foster and adoptive.
12. The primary purpose of adoption is to provide a permanent family for a child who cannot be cared for by
his/her biological family.
14. In considering possible adoption placements, those responsible for the child should select the most
appropriate environment for the particular child concerned.
15. Sufficient time and adequate counselling should be given to the biological parents to enable them to reach
a decision on their child’s future, recognizing that it is the child’s best interest to reach this decision as early
as possible.
16. Legislation and services should ensure that the child becomes an integral part of the adoptive family.
17. The need of adult adoptees to know about their background should be recognized.
19. Government should determine the adequacy of their national services for children, and recognize those
children whose needs are not being met by existing services. For some of these children, inter-country
adoption may be considered as a suitable means of providing them with a family.
21. In each country, placements should be made through authorized agencies competent to deal with inter-
country adoption services and providing the same safeguards and standards as are applied in national
adoptions.
22. Proxy adoptions are not acceptable in consideration of the child’s legal and social safety.
23. No adoption plan should be considered before it has been established that the child is legally free for
adoption and the pertinent documents, necessary to complete the adoption are available. All necessary
consents must be in a form which is legally valid in both countries. It must be definitely established that the
child will be able to immigrate into the country of the prospective adopters and can subsequently obtain
their nationality.
24. In inter-country adoptions, legal validation of the adoption should be assured in the countries involved.
25. The child should at all times have a name, nationality and legal guardian.
Thereafter at the Regional Conference of Asia and Western Pacific held by the International Council on Social
Welfare in Bombay in 1981, draft guidelines and procedure concerning inter-country adoption were formulated and
were approved at the Workshop held in Brington, U.K. on 4th September, 1982. These guidelines were based on
the Draft Declaration and they are extremely relevant as they reflect the almost unanimous thinking of participants
Page 4 of 7
from various countries who took part in the Regional Conference in Bombay and in the Workshop in Brington, U.K.
There are quite a few of these guidelines which are important. These are:
1.4. In all inter-country adoption arrangements, the welfare of the child should be prime consideration.
Biological Parents:
2.2. When the biological parents are known they shall be offered social work services by professionally
qualified workers (or experienced personnel who are supervised by such qualified workers) before and
after the birth of the child.
2.3. These services shall assist the parents to consider all the alternatives for the child’s future. Parents shall
not be subject to any duress in making a decision about adoption. No commitment to an adoption plan
shall be permitted before the birth of child. After allowing parents a reasonable time to reconsider any
decision to relinquish a child for adoption, the decision should become irrevocable.
2.5. If the parents decide to relinquish the child for adoption, they shall be helped to understand all the
implications, including the possibility of adoption by foreigners and of no further contact with the child.
2.6. Parents should be encouraged, where possible, to provide information about the child’s background and
development, and their own health.
2.8. It is the responsibility of the appropriate authority or agency to ensure that when the parents relinquish a
child for adoption all of the legal requirements are met.
2.9. If the parents state a preference for the religious upbringing of the child, these wishes shall be respected
as far as possible, but the best interest of the child will be the paramount consideration.
2.10. If the parents are not known, the appropriate authority or agency, in whose care the child has been
placed, shall endeavour to trace the parents and ensure that the above services are provided, before
taking any action in relation to the child.
The Child:
3.1. Before any plans are considered for a child to be adopted by foreigners, the appropriate authority or
agency shall consider all alternatives for permanent family care within the child’s own country.
3.2. A child-study report shall be prepared by professional workers (or experienced personnel who are
supervised by such qualified workers) of an appropriate authority or agency, to provide information which
will form a basis for the selection or prospective adopters for the child, assist with the child’s need to know
about his original family at the appropriate time, and help the adoptive parents understand the child and
have relevant information about him/her.
3.3. As far as possible, the child-study report shall include the following:
3.3.1. Identifying information, supported where possible by documents.
3.3.2. Information about original parents, including their health and details of the mother’s pregnancy and
the birth.
3.3.3. Physical, intellectual and emotional development.
3.3.4. Health report.
3.3.5. Recent photograph.
3.3.6. Present environment category of care (own home, foster home, institution, etc.) relationships,
routine habits.
3.3.7. Social Worker’s assessment and reasons for suggesting inter-country adoption.
3.4. Brothers and sisters and other children who have been cared for as siblings should not be separated by
adoption placement except for special reasons.
3.5. When a decision about an adoption placement is finalised, adequate time and effort shall be given to
preparation of the child in a manner appropriate to his/her age and level of development. Information about
the child’s new country and new home and counselling shall be provided by a skilled worker.
3.5
Page 5 of 7
(a) Before any adoption placement is finalized the child concerned shall be consulted in a manner
appropriate to his/her age and level of development.
3.6. When older children are placed for adoption, the adoptive parents should be encouraged to come to the
child’s country of origin, to meet him/her there, learn personally about his/her first environment and escort
the child to its new home.
Adoptive Parents:
4.3. In addition to the usual capacity for adoptive parenthood, applicants need to have the capacity to handle
the trans-racial, trans-cultural and trans-national aspects of inter-country adoptions.
4.4. A family study report shall be prepared by professional worker (or experienced personnel who are
supervised by such qualified workers) to indicate the basis on which the applicants were accepted as
prospective adopters. It should include an assessment of the parents’ capacity to parent a particular type of
child and provide relevant information for other authorities such as courts.
4.5. The report on the family study, which must be made in the community where the applicants are residing,
shall include details of the following:
4.5.1. Identifying information about parents and other members of the family, including any necessary
documentation.
4.5.2. Emotional and intellectual capacities of prospective adopters, and their motivation to adoption.
4.5.3. Relationship (material, family, relatives, friends, community).
4.5.4. Health.
4.5.5. Accommodation and financial position.
4.5.6. Employment and other interest.
4.5.7. Religious affiliation and/or attitudes.
4.5.8. Capacity for adoptive parenthood, and details of child preferred (age, sex, degree of disability).
4.5.9. Support available from relatives, friends community.
4.5.10 Social worker’s assessment and details of adoption authority’ approval.
4.5.11. Recent photograph of family.
Adoption Authorities and Agencies:

5.1. Inter-country adoption arrangements should be made only through Government Adoption Authorities (or
Agencies recognised by them) in both sending and receiving countries. They shall use experienced staff
with professional social work education or experienced personnel supervised by such qualified workers.
5.2. The appropriate authority or agency in the child’s country should be informed of all proposed inter-country
adoptions and have the opportunity to satisfy itself that all alternatives in the country have been
considered, and that inter-country adoption is the optimal choice of care for the child.
5.3. Before any inter-country adoption plan is considered, the appropriate authority or agency in the child’s
country should be responsible for establishing that the child is legally free for adoption, and that the
necessary documentation is legally valid in both countries.
5.4. Approval of inter-country adoptive applications is a responsibility of the appropriate authorities or agencies
in both sending and receiving countries. An application to adopt a child shall not be considered by a
sending country unless it is forwarded through the appropriate authority or agency in the receiving country.
5.5. The appropriate authority or agency in both countries shall monitor the reimbursement of costs involved in
inter-country adoption to prevent profiteering and trafficking in children.
5.6. ** ** ** **
5.7. When a child goes to another country to be adopted, the appropriate authority or agency of the receiving
country shall accept responsibility for supervision of the placement, and for the provision of progress
reports for the adoption authority or agency in the sending country for the period agreed upon.
Page 6 of 7
5.8. In cases where the adoption is not to be finalised in the sending country, the adoption authority in the
receiving country shall ensure that an adoption order is sought as soon as possible but not later than 2
years after placement. It is the responsibility of the appropriate authority or agency in the receiving country
to inform the appropriate authority or agency in the sending country of the details of the adoption order
when it is granted.
5.8.1. In case where the adoption is to be finalised in the sending country after placement, it is the
responsibility of the appropriate authority or agency in both the sending and receiving countries to
ensure that the adoption is finalised as soon as possible.
5.9. If the placement is disrupted before the adoption is finalised, the adoption authority in the receiving country
shall be responsible for ensuring, with the agreement of the adoption authority in the sending country that a
satisfactory alternative placement is made with prospective adoptive parents who are approved by the
adoption authorities of both countries.
Adoption Services and Communities:

6.1. Appropriate authorities or agencies in receiving countries shall ensure that there is adequate feedback to
the appropriate authorities or agencies in sending countries, both in relation to inter-country adoption
generally and to individuals children were required.
6.2. ** ** ** **
6.3. The appropriate authorities and agencies in both sending and receiving countries have a responsibility for
public education in relation to inter-country adoption, to ensure that when such adoption is appropriate for
children, public attitudes support this. Where public attitude is known to be discriminatory or likely to be
hostile on grounds of race or colour, the private authority or agency in the sending country should not
consider placement of the child.
Status of the Child:

7.1 Family—It is essential that in inter-country adoption child is given the same legal status and rights of
inheritance, as if she/he had been born to the adoptive parents in marriage.
7.2. Name—When the legal adoption process is concluded the child shall have the equivalent of a birth
registration certificate.
7.3. Nationality—When the legal adoption is concluded, the child shall be granted appropriate citizenship.
7.4. ** ** ** **
7.5. Immigration—Before an inter-country adoption placement with particular prospective adopters is proposed,
the appropriate authority or agency in the child’s country shall ensure that there is no hindrance to the child
entering the prospective adopters’ country, and the travel documents can be obtained at the appropriate
time.
V BOMBAY HIGH COURT RULE 361B, CHAPTER XX INSERTED IN THE

HIGH COURT RULES ON MAY 10, 1972
When a foreigner makes an application for being appointed as the guardian of the person or property of a minor,
the Prothonotary and Senior Master shall address a letter to the Secretary of the Indian Council of Social Welfare,
informing him of the presentation of the application and the date fixed for the hearing thereof. He shall also inform
him that any representation which the Indian Council of Social Welfare may make in the matter would be
considered by the court before passing the order on the application. A copy of the application shall be forwarded to
the Secretary of the Indian Council of Social Welfare along with the letter of Prothonotary and Senior Master.
VI THE INSTRUCTIONS TO THE DISTRICT COURT ISSUED BY THE
DELHI HIGH COURT ON INTER-COUNTRY ADOPTIONS
(i) A foreigner desirous of being appointed guardian of the person of a minor and praying for leave to remove
the minor to a foreign country, shall make an application for the purpose in the prescribed form under the
Guardians and Wards Act, attaching with it three copies of passport size photographs of the minor, duly
attested by the person having custody of the minor at the time;
Page 7 of 7
(ii) If the court is satisfied that there is no ground for proceedings on the application, it shall fix a day for the
hearing thereof and cause notice of the application and of the date fixed for the hearing on the person and
in the manner mentioned in section 11, the Guardians and Wards Act, 1890 as also to the general public
and the Secretary of the Indian Council of Child Welfare and consider their representation;
(iii) Every person appointed guardian of the person of a minor shall execute a bond with or without a surety or
sureties as the court may think fit to direct and in such sum as the court may fix, having regard to the
welfare of the minor and to ensure his production in the court if and when so required by the Court;
(iv) On the court making an order for the appointment of a foreigner guardian of the person of an Indian minor,
a copy of the minor’s photograph shall be counter-signed by the court and issued to the guardian or joint
guardian, as the case may be, appointed by the court along with the certificate of guardianship.
VII THE GUJARAT HIGH COURT GUIDELINES FOR INTER-COUNTRY

ADOPTIONS CONTAINED IN ITS JUDGMENT IN IN RE, RASIKLAL
CHHAGANLAL MEHTA, AIR 1982 GUJ 193 [LNIND 1981 GUJ 68].
In order that the courts can satisfactorily decide an inter-country adoption case against the aforesaid background
and in the light of the above referred guidelines, we consider it necessary to give certain directions. In all such
cases, the court should issue notice to the Indian Council of Social Welfare (175, Dadabhai Nauroji Road, Bombay-
400001) and seek its assistance. If the Indian Council of Social Welfare so desires, it should be made a party to the
proceedings. If the Indian Council of Social Welfare does not appear, or if it is unable, for some reason, to render
assistance, the court should issue notice to an independent, reputed and publicly/officially recognised social welfare
agency working in the field and in that area and request it to render assistance in the matter.
* These guidelines were laid down by Bhagwati, J. (as he was then) in Laxmi Pandey v. Union of India, AIR 1984 SC 469
[LNIND 1984 SC 30] and were eludicdated in Laxmi Kant Pandey v. Union of India, AIR 1987 SC 232 [LNIND 1986 SC
489]. See also In re, Jay Kevin Salerno, AIR 1988 Bom 139 [LNIND 1987 BOM 436].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
2. Guardians and Wards Act, 1890: Machinery for appointment of guardian.—

For the purpose of inter-country adoptions, the provisions of the Guardians and Wards Act, 1890 are utilized.
The District Court appoints a guardian under section 7 of the Act when it is satisfied that the appointment of the
guardian will be for the welfare of the minor.1 An order under section 7 can be made only on the application of
any one of the four categories of persons provided in section 8. Of these four categories the relevant categories
are those where an application can be made by (a) any person desirous of being guardian of the minor, and (b)
any relative or friend of the minor. The application can be made only to the District Court within whose
jurisdiction the minor ordinarily resides.2 Section 11(1) lays down that if the court is satisfied that there is
ground for proceeding on the application, it shall fix a date for the hearing thereof and cause notice of the
application and of the date of hearing to be served on the parents of the child if they are residing in the state
where the Act extends, the person, if any, named in the petition as having the custody or possession of the
person of the child, the person proposed in the application to be appointed guardian and any other person to
whom, in the opinion of the court, special notice of the application should be given. Section 17 provides that in
appointing guardian of a minor, the court shall be guided by what, consistently with the law to which the minor is
subject, appears in the circumstances to be for the welfare of the minor and in considering what will be for the
welfare of the minor, the court shall have regard to the age, sex, and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent
and any existing or previous relations of the proposed guardian with the minor or his property. Section 26
provides that a guardian of the person of a minor appointed by the court shall not, without the leave of the court
by which he was appointed, remove the ward from the limits of its jurisdiction, except for such purposes as may
be prescribed, and the leave to be granted by the court may be special or general.
It is this machinery of the Act which is used for inter-country adoptions. The foreign parent desirous of making
the adoption of an Indian child makes an application to the court for being appointed guardian of the person of
the child whom he wishes to take in adoption and, on being appointed the guardian, for leave of the court to
take the child with him to his country for taking it in adoption. It should be noticed that under the Indian law as it
stands at present, the only way in which a foreign parent can take an Indian child in adoption is by making an
application to the court within whose jurisdiction the child ordinarily resides for being appointed a guardian of
Page 2 of 8
the person of the child. And once he is appointed a guardian he should seek the leave of the court to remove
the child outside the court’s jurisdiction, i.e., to his own country so that he could adopt the child according to the
law of his country.
In most of the cases of foreign adoption, such applications succeeded as hardly there is anybody to contest the
application. There is a good deal of abuse of children adopted in such a manner. The High courts of Bombay
and Delhi have framed Rules on the matter, while the Gujarat High Court has laid down the guidelines in its
Judgment in In re, Rasik Lal Chhangan Lal Mehta.1 (These have been given in Parts V, VI and VII of this
annexure). The other High courts have not provided any such guidelines. Bhagwati, J. has approved these
guidelines so far as they are and has laid down further guidelines.
person.
applicant;
reason.
Page 3 of 8
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
Page 4 of 8
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 8

the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 8
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
Page 7 of 8
time.


1 Jayantilal v. Asha, AIR 1989 Guj 152 [LNIND 1988 GUJ 137]; Society of Sisters of Charity v. Karnataka State Child
Welfare Council, AIR 1992 Kant 263 [LNIND 1991 KANT 223].
2 Section 9(1).
1 AIR 1982 Guj 193 [LNIND 1981 GUJ 68].
Page 8 of 8
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
3. Notice to Indian Council of Social Welfare, Indian Council for Child

Welfare or other Social Organizations.—
The basic problem in inter-country adoption of Indian children has been that most of children sought to be
adopted are orphans, destitute, or abandoned children or those children whose parents have been lured into
giving them in adoption, and thus the notice under section 11 of the Guardians and Wards Act has hardly any
meaning. In their case there is no agency which can look into the question whether the proposed adoption will
be in their welfare. This is the reason why the Delhi High Court Rules provide for the notice to the Indian
Council of Child Welfare, while the Bombay High Court Rules and the Gujarat High Court guidelines provide for
a notice to the Indian Council of Social Welfare. The Supreme Court has approved this procedure, and
emphasised the imperative need of some independent agency which can inquire into the matter. The object of
giving notice to the Indian Council of Social Welfare or the Indian Council for Child Welfare or any other
independent, reputed and public or officially recognised social welfare agency is obviously to ensure that the
application of foreign parents for guardianship of the child with a view to its eventual adoption is properly and
carefully scrutinised and evaluated by an expert body having experience in the area of child welfare with a view
to assisting the court in coming to the conclusion whether it will be in the interest of the child to be adopted by
the foreign parents making the application. This procedure is evolved with a view to eliminating the possibility of
the child being adopted by unsuitable and undesirable parents and being placed in a family where it may be
neglected, maltreated or exploited by the adoptive parents. Thus a notice to the State and the State Council for
Child Welfare is essential.1
Since in countries abroad there is a demand for adoption of children from India, there is increasing danger of ill-
equipped and sometimes even undesirable organisations or individuals activising themselves in the field of
inter-country adoption with a view to trafficking in children and sometimes it may also happen that the
immediate prospect of transporting the child from neglect and abandonment to material comfort and security by
placing it with a foreigner may lead to other relevant factors such as the intangible needs of the child, its
emotional and psychological requirements and possible difficulty of its assimilation and integration in a foreign
family with a different racial and cultural background, being under emphasized, if not ignored. It is, therefore,
Page 2 of 8
necessary to evolve normative and procedural safeguards for ensuring that the child goes into the right family
which would provide it warmth and affection of family life and help it to grow and develop physically,
emotionally, intellectually and spiritually.
Every child welfare agency recognised or licensed for inter-country adoptions should maintain a register in
which the names and particulars of all children proposed to be given in inter-country adoptions through it should
be entered into.
The child welfare agency processing the adoption must place sufficient material before the court to satisfy it that
the child is legally available for adoption. It is also necessary that the recognised social or child welfare agency
must satisfy itself, firstly that there is no impediment in the way of the child entering the country of the
prospective adoptive parent; secondly, that the travel documents for the child can be obtained at the
appropriate time and lastly, that the law of the country of the prospective adoptive parent permits legal adoption
of the child and that on such legal adoption being concluded, the child would acquire the same legal status and
rights of inheritance as a natural born child and would be granted citizenship in the country of adoption and it
should file along with the application for guardianship, a certificate reciting such satisfaction.
The processing of the application of the foreign parent for appointment of himself as a guardian of the child with
the ultimate purpose of adoption of the child is to be processed by the recognized licensed Child Welfare
Agency handling the case and not by unauthorised agencies or individuals.
person.
Page 3 of 8
applicant;
reason.
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
Page 4 of 8
as possible.
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 8
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.
Page 6 of 8


5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

Page 7 of 8
7.4. ** ** ** **
time.


Page 8 of 8
1 Society of Sisters of Charity v. Karnataka State Child Welfare Council, AIR 1992 Kant 263 [LNIND 1991 KANT 223].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
4. Child Study Report.—

The main function of the Council of Social Welfare or Council for Child Welfare or any other recognized or
licensed child or social welfare agency engaged in the inter-country adoptions is to help the court in finding out
what is for the welfare of the child. For this purpose the Council prepares a “Child Study Report”. This report
should contain legal and social data in regard to child. The Report should also contain an assessment of child’s
behavioural pattern and its intellectual, emotional and physical development. (In this context the Indian Council
for Social Welfare has evolved a standard form in which the child study report is to be prepared).
The child study report should be prepared by a professional social worker giving all relevant information in
regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to
understand the child, if he decides to adopt it as also assist the court in coming to a decision whether it will be
for the welfare of the child to be given in adoption to the foreigner wishing to adopt it. The child study report
should contain as far as possible information in regard to the following matters:
(1) Identifying information, supported where possible by documents.
(2) Information about original parents, including their health and details of the mother’s pregnancy and
birth.
(3) Physical, intellectual and emotional development.
(4) Health report prepared by a registered medical practitioner preferably by a pediatrician.
(5) Recent photograph.
(6) Present environment—category or care (own home, foster home, institution etc.), relationships,
routines and habits.
(7) Social worker’s assessment and reasons for suggesting inter-country adoption.
Page 2 of 7

person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
Page 4 of 7
their nationality.
Biological Parents:
The Child:
the birth.
Page 5 of 7

routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
5. Sponsorship of the foreigner’s application for adoption by recognized

child welfare agency of foreigner’s country.—
It is imperative that the application for adoption of an Indian child by a foreigner should be sponsored by a
social or child welfare agency recognised or licensed by the Government of the country in which the foreigner is
resident. No application by a foreigner for taking a child in adoption should be entertained directly by any social
or welfare agency in India working in the area of inter-country adoption or by any Institution or Centre or Home
to which children are committed by the Juvenile Court. The rationale behind this provision is based on the
following three reasons:
A. It will help to reduce, if not eliminate altogether, the possibility of profiteering and trafficking in children,
because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose
of obtaining a child in adoption, he might, in his anxiety to secure a child for adoption, be induced or
persuaded to pay any unconscionable or unreasonable amount which might be demanded by the
agency or individual procuring the child.
B. It will be almost impossible for the court to satisfy itself that the foreigner who wishes to take the child
in adoption would be suitable as a parent for the child and whether he would be able to provide a
stable and secure family life to the child and would be able to handle trans-racial, trans-cultural and
trans-national problems likely to arise from such adoption, because, where the application for adopting
a child has not been sponsored by a social or child welfare agency in the country of the foreigner, there
would be no proper and satisfactory home study report on which the court can rely.
C. Where an application for adoption is made directly by a foreigner without the intervention of a social or
child welfare agency, there would be no authority or agency in the country of the foreigner who could
be made responsible for supervising the progress of the child and ensuring that the child is adopted at
the earliest in accordance with law and grows up in an atmosphere of warmth and affection with moral
and material security assurance to it.
Page 2 of 7
The foreign child welfare agency sponsoring the foreigner’s application for adoption should be an agency
licensed or recognised by the Government of the country where the foreigner resides. Once a recognized
foreign agency sponsors the adoption of the child Indian courts need not be conversant with the foreigner’s law
of adoption.1
No application under section 7, the Guardians and Wards Act by a foreigner for appointment of a guardian is to
be entertained by the District Court unless it has been sponsored by a licensed or recognized child welfare
agency of the foreigner’s country.
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
Page 4 of 7
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 7

the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
Page 7 of 7
time.


1 Jayantilal v. Asha, AIR 1989 Guj 152 [LNIND 1988 GUJ 137].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
6. Home Study Report.—

The main function of the foreign child welfare agency sponsoring the application of the foreigner is to prepare
and submit to the court a Home Study Report. This Report would indicate the basis on which foreigner’s
application has been sponsored. The Home Study Report should contain the following:
1. Source of referral.
2. Number of single and joint interviews.
3. Personality of husband and wife.
4. Health details such as clinical tests, heart condition, past illnesses etc., (medical certificates required,
sterility certificate required, if applicable).
5. Social status and family background.
6. Nature and adjustment with occupation.
7. Relationship with community.
8. Description of home.
9. Accommodation for the child.
10. Schooling facilities.
11. Amenities in the home.
12. Standard of living as it appears in the home.
13. Type of neighbourhood.
14. Current relationship between husband and wife.
15.
Page 2 of 8
(a) Current relationship between parents and children (if any children).
(b) Development of already adopted children (if any) and their acceptance of the child to be adopted.
16. Current relationship between the couple and the members of each other’s families.
17. If the wife is working, will she be able to give up the job?
18. If she cannot leave the job, what arrangements will she make to look after the child?
19. If adoption is considered because of sterility of one of the marital partners?
20. If not, can they eventually have children of their own?
21. If a child is born to them how will they treat the adopted child?
22. If the couple already has children how will these children react to an adopted child?
23. Important social and psychological experience which have had a bearing on their desire to adopt a
child.
24. Reasons for wanting to adopt an Indian child.
25. Attitude of grand-parents and relatives towards the adoption.
26. Attitude of relatives, friends, community and neighbourhood towards adoption of an Indian child.
27. Anticipated plans for the adopted child.
28. Can the child be adopted according to the adoption law in the adoptive parents country? Have they
obtained the necessary permission to adopt? (Statement of permission required).
29. Do the adoptive parents know any one who adopted a child from their own country or another country?
Who are they? From where did they fail to get a child from the source?
30. Did the couple apply for a child from any other source? If yes, which source?
31. What type of child is the couple interested in? (sex, age and for what reasons.)
32. Social worker’s recommendation concerning the family and the type of child which would best fit into
this home.
33. Name and address of the agency conducting the Home Study. Name of social worker, qualification of
social worker.
34. Name of agency responsible for post-placement, supervision and follow up.
The Home Study Report should broadly include information sought under heads 1 to 34 though strict
compliance is not necessary.
The Home Study Report should also contain an assessment by the social or child welfare agency as to whether
the foreigner wishing to take a child in adoption is fit and suitable and has the capacity to parent a child coming
from a different racial and cultural milieu and whether the child will be able to fit into the environment of the
adoptive family and the community in which it lives.
Page 3 of 8
person.
applicant;
reason.
Page 4 of 8
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 5 of 8
Biological Parents:
The Child:
the birth.
routine habits.
3.5
Page 6 of 8
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 7 of 8
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 8 of 8

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
7. Home Study Report in case of foreigner living in India for a year or

more.—
In case of a foreigner who has been living in India for one year or more, the home-study report and other
connected documents may be allowed to be prepared by the recognised placement agency which is processing
the application of such foreigner for guardianship of a child with a view to its eventual adoption and that in such
a case the court should not insist on sponsoring of such foreigner by social or child welfare agency based in the
country to which such foreigner belongs nor should a home-study report in respect of such foreigner be
required to be obtained from any such foreign social or child welfare agency, the home-study report and other
connected documents prepared by the recognised placement agency should be regarded as sufficient.
Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Biological Parents:
Page 4 of 7
The Child:
the birth.
routine habits.
3.5
Page 5 of 7
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
when it is granted.
Page 6 of 7

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
8. Photos of the members of the family of the foreigner-applicant, marriage

certificate, certificate of medical fitness, etc.—
Apart from the foreign child welfare agency’s Home Study Report which should be accompanied with the
foreigner’s application, child welfare agency should also send along with the Report:
(i) Recent photograph of the family, a marriage certificate of the foreigner and his or her spouse, a
declaration about their health, together with a certificate of medical fitness certified by a medical man,
and a declaration of financial status of the foreigner supported by documents (which may include
employer’s certificate if the foreigner is employed), income-tax assessment order, bank references,
and particulars of properties owned by the applicant and his family.
(ii) A declaration stating that they are willing to be appointed guardian of the child and undertaking that
they would adopt the child according to the law of their country within a period of not more than two
years from the time of arrival of the child in their country and give intimation of such adoption to the
court appointing them as guardian as also to the social or child welfare agency in India processing their
case, they would maintain the child and provide it necessary education and upbringing according to
their status and they would also send to the court as also to the social or child welfare agency in India
reports relating to the progress of the child along with its recent photograph, the frequency of such
progress reports being quarterly during the first two years and half yearly for the next three years.
(iii) Power-of-attorney in favour of an officer of the child welfare agency in India which is requested to
process the case and such power-of-attorney should authorise the attorney to handle the case on
behalf of the applicant in case he is not in a position to come to India.
(iv) A certificate from the foreign child welfare agency sponsoring the application of the foreigner that the
applicant is permitted to make an adoption under the law of his country.
The certificates, declarations, and documents as aforesaid which are to accompany the application should be
duly notarized by a Notary Public whose signature should be duly attested either by an officer of the Ministry of
Page 2 of 7
External Affairs or Justice or Social Welfare of the country of the foreigner or by an officer of the Indian
Embassy or High Commission or Consulate in that country.
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
Page 4 of 7
their nationality.
Biological Parents:
The Child:
the birth.
Page 5 of 7

routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
9. Undertaking by the sponsoring agency.—

The foreign sponsoring agency should give undertaking to the Indian child welfare agency processing the
application of the foreigner to the following effect:
A. It will ensure adoption of the child by the foreigner according to the law of his country within a period
not exceeding two years and as soon as the adoption is effected, it will send two certified copies of the
adoption order to the social or child welfare agency in India through which the application for
guardianship is processed, so that one copy can be filed in court and the other can remain with the
social or child welfare agency in India. The social or child welfare agency sponsoring the application
must also agree to send to the concerned social or child welfare agency in India.
B. It will send to the social and child welfare agency in India proceeding of the case, progress reports in
regard to the child, quarterly during the first year and half yearly for the subsequent year or years until
the adoption is effected, and it must also undertake that in case of disruption of the family of the
foreigner before adoption can be effected, it will take care of the child and find suitable alternative
placement for it with the approval of the concerned social or child welfare agency in India and report
such alternative placement to the court handling the guardianship proceedings and such information
shall be passed on both by the court as also by the concerned social or child welfare agency in India to
the Secretary, Ministry of Social Welfare, Government of India.

Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 4 of 7
Biological Parents:
The Child:
the birth.
routine habits.
Page 5 of 7
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 6 of 7
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
10. Role of the Foreign Agency in Inter-country adoptions.—

Most of the foreign agencies sponsoring adoptions have their representatives in India. Such representatives
can help to ensure proper and timely medical care of the child selected for adoption as also smooth carrying out
of legal formalities in connection with guardianship proceedings and travel arrangements for the child to go to
its new home. The court laid down the following parameters within which such representative can be allowed to
operate:
(a) The representative should be an Indian citizen with a degree or diploma in social work coup led with
experience in child welfare.
(b) The representative should be acting only for one foreign social or child welfare agency and not more,
nor should he be working on a freelance basis. It would also be desirable to limit the sphere of
operation of the representative to a particular geographical area so that he is able to attend to his
functions and duties properly and diligently.
(c) The representative should have a general power of attorney to act in India on behalf of the foreign
social or child welfare agency and he should also have the authority to operate banking accounts in the
name of the foreign social or child welfare agency with the permission of the Reserve Bank of India.
(d) The representative of the foreign social or child welfare agency should not be permitted to go scouting
for children or to receive children directly from parents.
(e) He should be allowed to act as representative only if he is recognised as such by the Central
Government.
If there is a social or child welfare agency owned or operated by the Government in foreign country, it would not
be necessary for a foreigner to route his application through a recognised social or child welfare agency within
his country and he can approach a recognised social or child welfare agency in India through such Government
agency.
Page 2 of 7

person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
Page 4 of 7
their nationality.
Biological Parents:
The Child:
the birth.
Page 5 of 7

routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
11. Recognition of foreign agencies engaged in inter-country adoptions.—

The Supreme Court directed the Government of India to collect the names of the social and child welfare
agencies in foreign countries recognized by their respective Governments for sponsoring application of
foreigners for taking a child in adoption. The Supreme Court also directed that list of such agencies circulated to
all High Courts in India with request to the High Courts to send the list to the District Courts situated within their
jurisdiction.1

Page 2 of 7
person.
applicant;
reason.
fellow men.
Page 3 of 7

COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Biological Parents:
Page 4 of 7
The Child:
the birth.
routine habits.
3.5
Adoptive Parents:
Page 5 of 7
documentation.
4.5.4. Health.

5.6. ** ** ** **
when it is granted.
Page 6 of 7

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

1 In its Supplementary Judgment AIR 1986 SC 273, the Supreme Court noted that these direction have been complied
with.
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
12. Presence of foreign-parent before the Indian Court.—

The Supreme Court’s notice was drawn to the fact that some of the District Courts insist on the presence of the
foreign parent before the court. The Supreme Court said that it was not necessary. The court dealing with an
application for appointment of foreign parents as guardian need not therefore insist on the foreign parents or
even one of them coming down to India for the purpose of approving the child. We are told that the Courts
sometimes insist on the foreign parents coming to India for the purpose of seeing the child where the child is an
orphan or handicapped child. But even in such cases it is not necessary to require the foreign parents to come
to India, because a complete dossier of the child consisting of photographs, detailed medical report, child study
report and other relevant particulars is always forwarded to the sponsoring social and child welfare agency in
the foreign country and it is after careful consideration of this dossier and a full and detailed discussion with the
sponsoring social and child welfare agency that the foreign parents decide to accept the child to be taken in
adoption and proceed further in the matter through the sponsoring social or child welfare agency. Of course, if
the foreign parent himself is keen to come, he may come to India.
Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 4 of 7
Biological Parents:
The Child:
the birth.
routine habits.
3.5
Page 5 of 7
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 6 of 7
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
13. Position of biological parents.—

In case child’s biological parents, i.e., natural parents, father or mother, are known to exist, then they should be
properly assisted in making a decision about giving away the child in adoption to foreign parents by the
agency—the child welfare agency to which the child is surrendered for making arrangement for its adoption.
Before a decision is taken by the biological parents to surrender the child for adoption, they should be helped to
understand all the implications of adoption including the possibility of adoption by a foreigner and they should
be told specifically that in case the child is adopted, it would not be possible for them to have any further
contact with the child. The biological parents should not be subjected to any duress in making a decision about
relinquishment and even after they have taken a decision to relinquish the child for giving in adoption, a further
period of about three months should be allowed to them to reconsider their decision. But once the decision is
taken and not reconsidered within such further time as may be allowed to them, it must be regarded as
irrevocable and the procedure for giving the child in adoption to a foreigner can then be initiated without any
further reference to the biological parents by filing an application for appointment of the foreigner as guardian of
the child. Thereafter, there can be no question of once again consulting the biological parents whether they
wish to give the child in adoption or they want to take it back. It would be most unfair if after a child is approved
by a foreigner and expenses are incurred by him for the purpose of maintenance of the child and sometimes on
medical assistance and even hospitalization for the child, the biological parents were once again to be
consulted for giving them a locus penitentia to reconsider their decision. But in order to eliminate any possibility
of mischief and to make sure that the child has in fact been surrendered by its biological parents, it is necessary
that the Institution or Centre or Home for child care or social or child welfare agency to which the child is
surrendered by the biological parents, should take from the biological parents a document of surrender duly
signed by the biological parents and attested by at least two responsible persons and such document of
surrender should not only contain the names of the biological parents and their addresses but also information
in regard to the birth of the child and its background, health and development. If the biological parents state a
preference for the religious upbringing of the child, their wish should as far as possible be respected, but
ultimately the interest of the child alone should be the sole guiding factor and the biological parents should be
informed that the child may be given in adoption even to a foreigner who professes a religion different from that
of the biological parents. This procedure can and must be followed where the biological parents are known and
Page 2 of 8
they relinquish the child for adoption to an Institution or Centre or Home for Child Care or hospital or social or
child welfare agency.
Where the child is an orphan, destitute or abandoned child and its parents are not known, the Institution or
Centre or Home for Child Care or hospital or social or child welfare agency in whose care the child has come,
must try to trace the biological parents of the child and if the biological parents can be traced and it is found that
they do not want to take back the child, then the same procedure as outlined above should as far as possible
be followed. But if for any reason the biological parents cannot be traced, then there can be no question of
taking their consent or consulting them.
In no case biological parents should be induced or encouraged or even be permitted to take a decision in
regard to giving of a child in adoption before the birth of the child or within a period of three months from the
date of birth. This precaution is necessary because the biological parents must have reasonable time after the
birth of the child to take a decision whether to rear up the child themselves or to relinquish it for adoption, and
moreover it may be necessary to allow some time to the child to overcome any health problems experienced
after birth.
person.
applicant;
Page 3 of 8
reason.
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
Page 4 of 8
as possible.
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 8
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.
Page 6 of 8


5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

Page 7 of 8
7.4. ** ** ** **
time.


Page 8 of 8
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
14. Recognition of child welfare agencies functioning in the States.—

Apart from the Indian Council for Child Welfare and the Indian Council for Social Welfare, the two recognised
social and child welfare agencies operating at the national level, there are other social or child welfare agencies
engaged in child care and welfare and if they have good standing and reputation and are doing commendable
work in the areas of child care and welfare, there is no reason why they should not be recognised by the
Government of India or the Government of State for the purpose of inter-country adoptions.
The Supreme Court directed the Government of India to consider and decide within a period of three months
from 6-2-1984 (the date of Judgment) whether any of these agencies (the agencies which were parties in the
case before the Supreme Court as interveners) deserved recognition. The Court added that it would be open to
the Government of India or the Government of a State suo motu or on an application made to it to recognise
any other social or child welfare agency for the purpose of inter-country adoptions, provided such social or child
welfare agency enjoys good reputation and is known for its work in the field of child care and welfare. Before
taking a decision to recognise any particular social or child welfare agency for the purpose of inter-country
adoptions, the Government of India or the Government of a State would do well to examine whether the social
or child welfare agency has proper staff with professional social work experience, because otherwise it may not
be possible for the social or child welfare agency to carry out satisfactorily the highly responsible tasks of
ensuring proper placement of a child with a foreign adoptive family. It would also be desirable not to recognise
an organisation or agency which has been set up only for the purpose of placing children in adoption: it is only
an organisation or agency which is engaged in the work of child care and welfare which should be regarded as
eligible for recognition, since inter-country adoption must be looked upon not as an independent activity by
itself, but as part of child welfare programme so that it may not tend to degenerate into trading. The
Government of India or the Government of a State recognising any social or child welfare agency for inter-
country adoptions must insist as a condition of recognition that the social or child welfare agency shall maintain
proper accounts which shall be audited by a chartered accountant at the end of every year and it shall not
charge to the foreigner wishing to adopt a child any amount in excess of that actually incurred by way of legal or
other expenses in connection with the application for appointment of guardian including such reasonable
Page 2 of 8
remuneration or honorarium for the work done and trouble taken in processing, filing and pursuing the
application as may be fixed by the court.1
The Supreme Court directed that the Government of India should, with the assistance of the Government of the
States, prepare a list of a recognised social or child welfare agencies with their names, addresses and other
particulars and send such list to the appropriate department of the Government of each foreign country where
Indian children are ordinarily taken in adoption so that the social or child welfare agencies licensed or
recognised by the Government of such foreign country for inter-country adoptions, would know which social or
child welfare agency in India they should approach for processing an application of its national for taking an
Indian child in adoption. Such list shall also be sent by the Government of India to each High Court with a
request to forward it to the District Courts within its jurisdiction, so that the High Courts and the District Courts in
the country would know which are the recognised social or child welfare agencies entitled to process an
application for appointment of a foreigner as guardian. It would be desirable if a Central Adoption Resource
Agency is set up by the Government of India with regional branches at a few centres which are active in inter-
country adoptions. Such Central Adoption Resource Agency can act as a clearing house of information in
regard to children available for inter-country adoption and all applications by foreigners for taking Indian
Children in adoption can then be forwarded by the social or child welfare agency in the foreign country to such
Central Adoption Resource Agency and the latter can in its turn forward them to one or the other of the
recognised social or child welfare agencies in the country. Every social or child welfare agency taking children
under its care can then be required to send to such Central Adoption Resource Agency the names and
particulars of children under its care who are available for adoption and the names and particulars of such
children can be entered in a register to be maintained by such Central Adoption Resource Agency. But until
such Central Adoption Resource Agency is set-up, an application of a foreigner for taking an Indian child in
adoption must be routed through a recognised social or child welfare agency.
person.
Page 3 of 8
applicant;
reason.
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
Page 4 of 8
as possible.
adoptions.
their nationality.
Biological Parents:
Page 5 of 8
The Child:
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.
Page 6 of 8


5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **
Page 7 of 8

7.4. ** ** ** **
time.


Page 8 of 8
1 The direction of the Supreme Court in that regard has been carried out. This was noted by the Supreme Court in its
supplementary judgment AIR 1986 SC 273 .
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
15. When child is in the care of unrecognized child welfare agency:

Procedure for adoption.—
Situations may arise where a child is in the care of a child welfare institution or centre or social or child welfare
agency which has not been recognised by the Government. Since an application for appointment as guardian
can be processed only by a recognised social or child welfare agency and none, else, any unrecognised
institution, centre or agency which has a child under its care would have to approach a recognised social or
child welfare agency if it desires such child to be given in inter-country adoption, and in that event it must send
without any further delay the name and particulars of such child to the recognised social or child welfare agency
through which such child is proposed to be given in inter-country adoption.
When a child is placed in the care of a recognised child welfare agency by an unrecognised child welfare
agency, for the purpose of facilitating its adoption, the former must have the custody of the child for a period of
at least one month with a view to facilitating it to prepare a genuine and satisfactory child study report along
with the medical report.1 The recognised social or child welfare agency should not act as a mere post office for
the unrecognised agencies. The question whether the custody of the recognized agency should be actual or
constructive came for consideration before the Bombay High Court in In re, Jay Kevia Salarno.2 One
abandoned child Pooja was in the care of Bal Asha Trust of Bombay - an unrecognised institution for inter-
country adoption. The Trust placed the child in the care of St. Joseph’s Home and Nursery, a recognized
agency, for facilitating its adoption to a foreigner. The child was accepted and registered with St. Joseph’s
Home. However by the Bal Asha Trust the child was kept at a private nursing home for better care, as it was felt
that it was not desirable to move the child physically from hospitaliztion and special care. The Superintendent of
St. Joseph’s Home made regular visits to the nursing home with a view to preparing a child study report. The
Bombay High Court observed that in the context “custody” could not be interpreted as actual physical custody.
To interpret the direction of the Supreme Court for keeping the child in the custody of the recognized institution
for a period of one month, literally might cause harm to a child of tender age and health who is in the special
care of a nursing home. If the child was in the constructive custody of the recognized institution, it would be
enough.
Page 2 of 7

person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
Page 4 of 7
their nationality.
Biological Parents:
The Child:
the birth.
Page 5 of 7

routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

1 Laxmi Kant Pandey v. Union of India, AIR 1987 SC 233 .
2 AIR 1988 Bom 139 [LNIND 1987 BOM 436].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
16. Can the child or social welfare agency claim the amount, it had spent for
the maintenance and medical care of the child?—
Noting the pernicious practice prevailing in some places where huge money is demanded from a foreign parent
on the pretext of maintenance and medical care expenses of the child, the Supreme Court added that at the
same time, it would not be fair to suggest that the social or child welfare agency which is looking after the child
should not be entitled to receive any amount from the prospective adoptive parent, when maintenance and
medical expenses in connection with the child are actually incurred by such social or child welfare agency.
Many of the social or child welfare agencies running homes for children have little financial resources of their
own and have to depend largely on voluntary donations and therefore if any maintenance or medical expenses
are incurred by them on a child, there is no reason why they should not be entitled to receive reimbursement of
such maintenance and medical expenses from the foreigner taking the child in adoption.
The Supreme Court has laid down that the social or child welfare agency which is looking after the child
selected by a prospective adoptive parent, may legitimately receive from such prospective adoptive parent
maintenance expenses at rate not exceeding Rs. 60 per day (this outer limit being subject to revision by the
Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him
until the date the child leaves for going to its new home as also medical expenses including hospitalization
charges, if any, actually incurred by such social or child welfare agency for the child. But the claim for payment
of such maintenance charges and medical expenses shall be submitted to the prospective adoptive parent
through the recognised social or child welfare agency which has processed the application for guardianship and
payment in respect of such claim shall not be received directly by the social or child welfare agency making the
claim but shall be paid only through the recognised social or child welfare agency.
In Laxmi Kant Pandey v. Union of India,1 it was represented to the Supreme Court that the amount of Rs. 60
per day for maintenance is on the higher side. Bhagwati, J. clarified the position by saying that it represented
the outside limit of maintenance expenses. To provide a further safeguard for preventing social agencies having
the care of the child for demanding exorbitant amounts in the guise of maintenance and medical expenses, the
Page 2 of 8
court issued further direction. When the court makes an order appointing a foreigner as guardian, it should look
into this question and sanction the amount to be paid by the foreigner to the social or child welfare agency by
way of reimbursement of maintenance expenses and that only such amount as may be sanctioned by the court
shall be recoverable by the social or child welfare agency by way of maintenance expenses from the foreigner
who is appointed guardian of the child. So far as surgical or medical expenses incurred on the child are
concerned, they should also be recoverable by the social or child welfare agency against production of bills or
vouchers. The court would of course, while granting sanction, take a practical view in this matter, bearing in
mind that many of the social or child welfare agencies running homes for children have meagre financial
resources of their own and have to depend largely on voluntary donations and unless reasonable maintenance
expenses and actual surgical and medical expenses are allowed to be recovered by them from the foreigner
taking the child in adoption, it might become difficult for them to survive and to carry on their philanthropic work.
The recognised social or child welfare agency processing the application must also be entitled to recover from
the foreigner who is sought to be appointed guardian of the child, costs incurred in preparing and filing the
application and prosecuting it in court. Such expenses may include legal expenses, administrative expenses,
preparation of child study report, preparation of medical and I.Q. reports, passport and visa expenses and
conveyance expenses and they may be fixed by the court at such figure not exceeding Rs. 6,000 as may be
thought fit by the court.
The above directions do not prevent a foreign parent from making voluntary donations to any child or social
welfare agency but no such donation would be received from the foreign parent until after the child has reached
the country of the adoptive parent.
person.
Page 3 of 8
applicant;
reason.
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
Page 4 of 8
as possible.
adoptions.
their nationality.
Biological Parents:
Page 5 of 8
The Child:
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.
Page 6 of 8


5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **
Page 7 of 8

7.4. ** ** ** **
time.


Page 8 of 8
1 AIR 1987 SC 233 .
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
17. Child residing or under the care of any institute or child welfare agency
in one State brought into another for the purpose of processing its
adoption.—
It often happens that the child under the care of social or child welfare agency, a home, a hospital or an
orphanage in one State is brought into another by a social or child welfare agency for the purpose of being
given in adoption. In Miscellaneous Petition No. 178 of 1982,1 Lentin, J. observed that the practice of social or
child welfare agencies of individuals going to different States for the purpose of collecting children for being
given in inter-country adoption is likely to lead to considerable abuse, because it is possible that such social
child welfare agencies or individuals may, by offering monetary inducement, persuade indigent parents to part
with their children and then give the children to foreigners in adoption by demanding a higher price, which the
foreigners in their anxiety to secure a child for adoption may be willing to pay. Bhagwati, J. agreed with this
observation, but added that there should be no objection if a child is relinquished by its biological parents or is
an orphan or destitute or abandoned child in its parent State, there should be any objection to a social or child
welfare agency taking the child to another State, even if the object be to give it in adoption, provided that there
are sufficient safeguards to ensure that such social or child welfare agency does not indulge in any malpractice.
Since every application of a foreigner for taking a child adoption shall be routed only through recognised social
or child welfare agency and an application for appointment of the foreigner as guardian of the child shall be
made to the court only through such recognised social or child welfare agency, there would hardly be any
scope for a social or child welfare agency or individual who brings a child from another State for the purpose of
being given in adoption to indulge in trafficking and such a possibility would be reduced to almost nil.
In case where a child from another State is brought for adoption, no court in a State will entertain an application
for appointment of a foreigner as guardian of a child which has been brought from another State, if there is a
social or child welfare agency in that State which has been recognised by the Government of India for inter-
country adoption. The social or child welfare agency processing the application for guardianship should then be
directed to send the child to the recognised social or child welfare agency in the other State, so that whatever
proceedings are necessary for giving the child in adoption may be instituted by that social or child welfare
Page 2 of 7
agency and in such an event, the complete details of the case history and background including the home study
report, the child study report, if any, and all other information relating to the child should be made available to
the latter social or child welfare agency. If there is no recognized social or child welfare agency in the State
where the child is found or obtained, the child shall be transferred to the recognised social or child welfare
agency at the nearest place in the immediate neighbouring State.
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
Page 4 of 7
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 7
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.
Page 7 of 7


1 AIR 1983 Bom 272 .
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
18. Age of the child.—

As to the age of child, the Supreme Court directed that as far as possible the child should be given in adoption
before it completes the age of three years. The reason is that if a child is adopted before it attains the age of
understanding, it is always easier for it to get assimilated and integrated in the new environment in which it may
find itself on being adopted by a foreign parent. Comparatively, it may be somewhat difficult for a grown up child
to get acclimatized to new surroundings in a different land and sometimes a problem may also arise whether
foreign adoptive parents would be able to win the love and affection of a grown-up child. But, the Supreme
Court added, there can be no hard and fast rule on this matter and children of higher age too can be given in
adoption. Even the children between the ages of 3 and 7 years may be able to assimilate themselves in the
new surroundings without any difficulty and there is no reason why they should be denied the benefit of family
warmth and affection in the home of foreign parents, merely because they are past the age of 3 years. Even
children above the age of 7 years may be given in inter-country adoption but, in such cases, their wishes may
be ascertained if they are in a position to indicate any preference. Where the child has reached the age of
understanding, the child welfare agency should take steps to ensure that the child is given proper orientation
and is prepared for going to its new home in a new country so that its assimilation in the new environment is
facilitated.
Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 4 of 7
Biological Parents:
The Child:
the birth.
routine habits.
3.5
Page 5 of 7
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 6 of 7
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
19. Children of biological parents and: Abandoned children: Procedure for

declaration that child is free for adoption.—
It is mostly the abandoned children, sometimes, abandoned in the cradle that are offered to be given in
adoption in inter-country adoptions. The Supreme Court observed that the social or child welfare agency
engaged in the work of placing children in adoption should not readily assume that children including cradle
babies who are found abandoned are legally free from adoption. It directed: Such children must be produced
before the Juvenile Court so that further inquiries can be made and their parents or guardians can be traced. In
States where there is no Children Act in force, such children should be referred to the Social Welfare
Department for making further inquiries and tracing their parents or guardians. This procedure should be
completed at the latest within three months and no children who are found abandoned should be deemed to be
legally free for adoption until the Juvenile Court or the Social Welfare Department declares them as destitute or
abandoned. It should also be impressed upon the Juvenile Courts that when children are selected for adoption,
release orders should be passed by them expeditiously and without delay, and proper vigilance in this behalf
must be exercised by the High Courts. In its third judgment the Supreme Court has modified these directions.
Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 4 of 7
Biological Parents:
The Child:
the birth.
routine habits.
3.5
Page 5 of 7
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 6 of 7
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
20. Child relinquished by biological parents or unwed mother.—

In cases where a child is relinquished by its biological parents or by an unwed mother under a Deed of
Relinquishment executed by the biological parents or the unwed mother it should not be necessary to go
through the Juvenile Court or the Social Welfare Department or the Collector to obtain a release order declaring
the child free for adoption but it would be enough to produce the Deed of Relinquishment before the Court
which considers the application for appointment of a foreigner as guardian of the child.

Page 2 of 7
person.
applicant;
reason.
fellow men.
Page 3 of 7

COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Biological Parents:
Page 4 of 7
The Child:
the birth.
routine habits.
3.5
Adoptive Parents:
Page 5 of 7
documentation.
4.5.4. Health.

5.6. ** ** ** **
when it is granted.
Page 6 of 7

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
21. Abandoned child.—

In the case of a abandoned or destitute child the procedure of going through the Juvenile Court or the Social
Welfare Department or the Collector would have to be adopted. As soon as abandoned or destitute child is
found by a social or child welfare agency, a report should be immediately lodged with the local police station
along with a photograph of the child. The Inspector-General of Police or the Commissioner of Police, as the
case may be, should instruct every police station within his jurisdiction to immediately undertake an inquiry for
the purpose of ascertaining and tracing the parents of the child in respect of which the report is made and such
inquiry must be completed within one month of the report being lodged with the police station. Meanwhile, the
social or child welfare agency which has found the abandoned or destitute child may make an application to the
Juvenile Court or to the Social Welfare Department or the Collector, as the case may be, for a release order
declaring that the child is legally free for adoption and since the report of the inquiry to be made by the police
has to be completed within one month, it should be possible for the Juvenile Court or the Social Welfare
Department or the Collector to make a release order declaring the child legally free for adoption within a period
of five weeks from the date of making the application. If, as a result of the inquiry by the police the biological
parents are traced, the Juvenile Court or the Social Welfare Department or the Collector, as the case may be,
will issue a notice to the biological parents and give them an opportunity to reconsider their decision after
explaining the implications of the child being declared legally free for adoption. But, this opportunity shall be
availed of by the biological parents within a period of one week and no more. The Supreme Court added that
while the application for release order is processed the placement agency may proceed to explore the
possibility of offering the child to the Indian or foreign adopter. This would save time.
Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 4 of 7
Biological Parents:
The Child:
the birth.
routine habits.
Page 5 of 7
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 6 of 7
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
22. Bond and security by the foreign parent.—

In the order appointing the foreign parent as guardian of the child and granting him leave to remove the child to
his country, the guardian court should ask him to deposit a sum of money or to execute a bond to enable the
child to be repatriated to India should it become necessary for any reason.
When the attention of the Supreme Court was drawn to the difficulty of the foreigner to deposit a sum of money
and it was submitted that the bond should be sufficient, the Supreme Court said, that if security by way of
deposit is insisted upon by the court, it may cause a certain amount of hardship to the foreigner because his
moneys would remain locked up in court, though after the adoption is effected by him, he would be entitled to
return of the amount deposited. Yet it may be difficult for him to get that amount repatriated to him in the foreign
country. The entire matter should be left to be decided by the court in the exercise of its judicial discretion. The
court may not ordinarily insist on making of the deposit by the foreigner but in an appropriate case, if it so thinks
fit, it may pass such an order. The execution of a bond would ordinarily be sufficient. The bond should be by
way of security for repatriation of the child to India in case it becomes necessary to do so as also for ensuring
adoption of the child within the period of two years. The bond may be taken from the representative of the
foreign agency or from the social welfare agency in India so that if the condition of the bond is violated, the
court can proceed to enforce the bond against such representative who would be an Indian national. There is
also another alternative which may be adopted by the court. The court may take the bond from the social or
child welfare agency which has processed the application and such social or child welfare agency may in its
turn take a corresponding bond from the sponsoring social or child welfare agency in the foreign country.1 The
Supreme Court added, it would be sufficient to take the bond from the representative of the foreign social or
child welfare agency in India or to insist on the bond being excluded by the foreigner in favour of the Indian
Diplomatic Mission abroad. In its third Judgment the Supreme Court has modified these directions. The court
need not insist on security or cash deposit or bank guarantee and it should be enough if a bond is taken from
the recognised placement agency which is processing the application and such recognised placement agency
may in its turn take corresponding bond from the sponsoring social or child welfare agency in the foreign
country. Ordinarily, the sponsoring social or child welfare agency in the foreign country would honour the bond
in case the condition of the bond is broken, because, obviously; if it fails to do so, no recognised placement
Page 2 of 7
agency in India would in future deal with it and moreover the name of such foreign social or child welfare
agency would be liable to be deleted from the list of foreign social or child welfare agencies which are
recognised as sponsoring agencies for the purpose of adoption.
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
Page 4 of 7
their nationality.
Biological Parents:
The Child:
the birth.
Page 5 of 7

routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

1 AIR 1986 SC 272 [LNIND 1978 SC 285].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
23. Progress report.—

The order appointing guardian shall carry, attached to it, a photograph of the child duly counter-signed by an
officer of the court.
The Supreme Court has directed that the order for appointment of the foreign parent as guardian and granting
him leave to remove the child to his country should contain a condition that the foreigner shall submit to the
court as well as to the social or child welfare agency processing the application for guardianship, progress
report of the child quarterly during the first two years and yearly for the next three years. The Supreme Court in
its supplementary Judgment1 added that it is necessary that progress reports must be submitted to the court
and to the social or child welfare agency in India quarterly during the first two years and half yearly for the next
three years, but after adoption had taken place the courts may not insist on strict observance of this
requirement. The progress reports should be submitted by the social or child welfare agency sponsoring the
application of the foreigner until adoption is effected. That would provide greater assurance because it may not
be possible to take any action if the foreigner fails to provide progress reports, but if the social or child welfare
agency sponsoring the application for guardianship fails to submit progress reports, the court can in future
decline to entertain any application for guardianship where the foreigner seeking appointment as guardian is
sponsored by such social or child welfare agency.
Page 2 of 7
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Page 4 of 7
Biological Parents:
The Child:
the birth.
routine habits.
3.5
Page 5 of 7
Adoptive Parents:
documentation.
4.5.4. Health.

5.6. ** ** ** **
Page 6 of 7
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

1 AIR 1986 SC 272 [LNIND 1978 SC 285].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
24. Failure to make adoption within two years.—

The Supreme Court directed that the adoption should take place in the country of the foreign parent within a
period of two years, otherwise the bond or security should be forfeited. In its supplementary Judgment,1 when it
was brought to the notice of the court that in some case the adoption process might not be completed within
two years, some relaxation should be made, the Supreme Court directed that where such is the case, the
applicant should seek the extension of the time by making application to the guardian court.

Page 2 of 7
person.
applicant;
reason.
fellow men.
Page 3 of 7

COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
adoptions.
their nationality.
Biological Parents:
Page 4 of 7
The Child:
the birth.
routine habits.
3.5
Adoptive Parents:
Page 5 of 7
documentation.
4.5.4. Health.

5.6. ** ** ** **
when it is granted.
Page 6 of 7

6.2. ** ** ** **

7.4. ** ** ** **
time.

Page 7 of 7

1 This was also emphasised in Laxmi Kant Pandey v. Union of India, AIR 1986 SC 272 [LNIND 1978 SC 285].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
25. Scrutinizing agency.—

The Supreme Court Judgment contemplates a scrutinising agency for the purpose of assisting the District Court
in reaching to the conclusion whether it would be in the interest of the child to be given in adoption to the
foreign parent. The agency is to be appointed by the District Court. In its supplementary Judgment,1 the
Supreme Court clarified that this agency has to be different from the placement agency. It must be an expert
body having experience in the area of child welfare and it should have nothing to do with placement of children
in adoption for otherwise objective and impartial evaluation may not be possible. Where therefore there is an
institution or agency which is engaged in the placement of children in adoption, it should not be appointed as
scrutinizing agency by the court. As to the role of the scrutinizing agency the Supreme Court said that it should
not be asked to make any inquiries before a child is offered in adoption to a foreigner or a petition for
appointment of a foreigner as guardian is filed in court. The primary responsibility for ensuring that the child is
legally free for adoption must be that of the social or child welfare agency processing the application of the
foreigner for guardianship of the child. Whatever inquiries are necessary for the purpose of satisfying itself that
the child has been voluntarily relinquished by its biological parents after understanding all the implications of
adoption must be the responsibility of the social or child welfare agency processing the application for
guardianship. The scrutinizing agency has a vital role to play after a foreigner has approved of the child to be
taken in adoption and a petition is filed in court for appointment of the foreigner as guardian of the child and it is
at the stage that the scrutinising agency is expected to assist the court in coming to the conclusion whether it
would be in the interest of the child to be given in adoption to the foreigner. The scrutinising agency should not
at that stage try to ascertain who are the biological parents of the child and whether they are willing to take back
the child.
Where the court feels some doubt as to how the child has been obtained and in what manner, the court may
ask the scrutinising agency to make inquiries with a view to finding out how the social or child welfare agency
processing the application has got the child and if the child has been obtained by such social or child welfare
agency from another institution or agency, how that institution or agency got the child and from what source and
in what manner and the scrutinising agency may then make discrete inquiries for this purpose without
disclosing to any one that the child is sought to be given in adoption. The court may also in an appropriate case
Page 2 of 7
where it has some doubt ask the scrutinising agency to inquire whether the child has been voluntarily
surrendered by the biological parents or whether such relinquishment has been obtained by fraudulent means.
The scrutinizing agency is to inquire in these matters only when the guardian court specifically directs it to do
so. The scrutinizing agency should, while scrutinizing the application, adopt a sympathetic and sensitive
approach with indepth understanding of the dynamic of human behaviour.
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
Page 4 of 7
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 7
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.
Page 7 of 7


1 AIR 1987 SC 232 [LNIND 1986 SC 489].
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
26. Procedure to be followed by the Guardian Court.—

As has been stated in para 2, the process of adoption of a child is commenced by making an application to the
District Court for appointment of guardian of the foreign parent. Section 11 requires notices of the application to
be given to certain persons, including parents of the child, if any. In its, directions, the Supreme Court
expressed the view that no such notice should be given to the biological parents of the child, since it would
create considerable amount of embarrassment and hardship to the foreigner applicant, if the biological parents
were then to come forward and oppose the application of the prospective adoptive parent for guardianship of
the child. Moreover, the biological parents would then come it know who is the person taking the child in
adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they
may try to contact the child resulting in emotional and psychological disturbance for the child which might affect
his future happiness. The possibility also cannot be ruled out that if the biological parents know who are the
adoptive parents they may try to extort money from them. It is, therefore, absolutely essential that the biological
parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption
and therefore notice of the application for guardianship should not be given to the biological parents.1
The court also directed that notice of the application should also not be published in the newspaper. Since
notice of the application is given to the Indian Council of Child Welfare, or Indian Council of Social Welfare or a
recognised child welfare agency, the purpose of the publication in the newspaper is served, since it is the
welfare agency which will process the application. The agency is required to submit the child study report and
other documents to enable the court to decide the matter in the best interest of the child.
It is for the Guardian Court to satisfy itself whether the guidelines laid down in the Supreme Court judgment
have been followed by the agencies concerned on the basis of the “child study report” and “home study report”
and other material and documents submitted to the court and whether the proposed adopter would be a
suitable person and the child will be able to integrate and assimilate itself in the family and community of the
foreigner and will be able to get warmth and affection of family life as also moral and material stability and
security and whether it will be in the interest of the child to be taken in adoption by the foreigner. If the court is
Page 2 of 8
satisfied, then and then only it will make an order appointing the foreigner as guardian of the child and
permitting him to remove the child to his own country with a view to eventual adoption.
The proceedings on the application for guardianship should be held by the court in camera and they should be
regarded as confidential and as soon as an order is made on the application for guardianship the entire
proceedings including the papers and documents should be sealed.
Immediate information of the appointment of the guardian should be given to the Ministry of Social Welfare,
Government of India as also to the Ministry of Social Welfare of the Government of the State in which the Court
is situated and copies of such order shall also be forwarded to the two respective Ministries of Social Welfare.
The Ministry of Social Welfare, Government of India shall maintain a register containing names and other
particulars of the children in respect of whom orders for appointment of guardian have been made as also
names, addresses and other particulars of the prospective adoptive parents who have been appointed such
guardians and who have been permitted to take away the children for the purpose of adoption. The
Government of India will also send to the Indian Embassy or High Commission in the country of the prospective
adoptive parents from time to time the names, addresses and other particulars of such prospective adoptive
parents together with particulars of the children taken by them and requesting the Embassy or High
Commission to maintain an unobtrusive watch over the welfare and progress of such children in order to
safeguard against any possible maltreatment, exploitation or use for ulterior purposes and to immediately report
any instance of maltreatment, negligence or exploitation to the Government of India for suitable action.
In the third case, Laxmi Kant Pandey v. Union of India,1 the practice of Delhi High Court where the application
of the foreigner is required to be signed by the representative of the recognized placement agency not merely
as attorney of the foreigner but also in his personal capacity and thereafter the foreign parent and the
representative are appointed as joint guardians and both continue the guardian till the child is finally taken into
adoption, was brought to the notice of the Supreme Court with the submission that this entails a continued
obligation on the part of welfare agency which was totally unnecessary. The Supreme Court said that the
appointment of the representative of the placement agency as joint guardian is not necessary. The bond taken
from the recognized placement agency and the foreigner would be sufficient to ensure the welfare of the child.
person.
Page 3 of 8
applicant;
reason.
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
Page 4 of 8
as possible.
adoptions.
their nationality.
Biological Parents:
Page 5 of 8
The Child:
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
Page 6 of 8
4.5.4. Health.

5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **
Page 7 of 8

7.4. ** ** ** **
time.


Page 8 of 8
1 Strange, Hindu Law, 4th Edn., (1864) 72.
End of Document
5th ed
Paras Diwan
ADOPTIONS

(78 of 1956)
ANNEXURE 1
27. Disposal of the application by the Guardian Court.—

It was brought to the notice of the Supreme Court in Laxmi Kant Pandey v. Union of India,1 that the
guardianship proceedings drag on in the District Court for months together and they are ordinarily not disposed
of before the expiry of the period of six months. The Supreme Court has directed that such applications should
be disposed at the earliest but in no case later than two months from the date of the filing of the application.
The Supreme Court also observed that the High Courts should call for returns from the District Courts within
their respective jurisdiction showing every two months as to how many applications for appointment of guardian
are pending, when they are filed and if more than two months have passed since the date of their filing, why
they have not been disposed of up to the return. If any application for guardianship is not disposed of by the
District Courts within a period of two months and there is no satisfactory explanation, the High Courts must take
a serious view of the matter.
In order to implement norms, principles and procedures relating to inter-country adoption as laid down by the
Supreme Court in its judgments dated 6-2-1984, 27-9-1985 and 3-12-1986 (Laxmi Kant Pandey v. Union of
India) Government of India issued certain guidelines vide a resolution passed by the Ministry of Welfare dated
May 29, 1995.
This resolution is based on the recommendations made by a task force constituted under the Chairmanship of
Mr. P.N. Bhagwati, former Chief Justice of India. Under these guidelines, the government could enter into
bilateral agreements with foreign countries whose nationals want to adopt Indian children. It is in the light of the
fact that a substantial number of Indian children are adopted by foreign nationals.
These guidelines envisage a new structure and functions for the Central Adoption Resources Agency (CARA).
CARA would co-ordinate with various State Governments, who, under the new measures, are to enlist agencies
both Indian and foreign, involved in the adoption process. Since prospective adoptive parents have to register
themselves with such Government recognized agencies, these have to be constantly monitored and equal
attention to various child welfare organizations has to be paid.
Page 2 of 7
From now onwards prospective foreign parents wanting to adopt a child through an Indian agency, such agency
would have to obtain a no objection certificate from the CARA. Further, all enlisted foreign agencies will have to
directly send application along with required documents to the recognized Indian agency. The role and
functions of the scrutinizing agency have also been clearly indicated under the revised guidelines.
person.
applicant;
reason.
Page 3 of 7
fellow men.
COUNTRY ADOPTIONS
Session)
Guideline are:
as possible.
Page 4 of 7
adoptions.
their nationality.
Biological Parents:
The Child:
Page 5 of 7
the birth.
routine habits.
3.5
Adoptive Parents:
documentation.
4.5.4. Health.

Page 6 of 7
5.6. ** ** ** **
when it is granted.

6.2. ** ** ** **

7.4. ** ** ** **
time.
Page 7 of 7


End of Document
5th ed
Paras Diwan
AND MAINTENANCE ACT, 1956 > ANNEXURE 2 ADOPTION OF CHILDREN BILL, 1980

(78 of 1956)
ANNEXURE 2 ADOPTION OF CHILDREN BILL, 1980
The following Bill was introduced in Lok Sabha on the 16th December, 1980:—
BILL No. 208 of 1980
A Bill to provide for the adoption of children and matters connected therewith.
BE it enacted by Parliament in the Thirty-first year of the Republic of India as follows:—
1. Short title, extent and commencement.—
(1) This Act may be called the Adoption of Children Act, 1980.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official
Gazette, appoint.
End of Document
5th ed
Paras Diwan

(78 of 1956)
2. Definitions.—
In this Act, unless the context otherwise requires.—
(a) “adoption order” means an order made under section 5 for the adoption of a child;
(b) “child” means a person, whether male or female, who, on or before the date on which an application for
an adoption order in respect of such person is made, has not completed the age of eighteen years;
(c) “district court” means, in any area for which there is a city civil court, that court, and in any other area,
the principal civil court of original jurisdiction:
Provided that the Central Government may, by notification in the Official Gazette, empower,
subject to such conditions and restrictions as may be specified in the notification, any other civil
court to exercise the powers and discharge the functions and duties of the district court in respect
of all or any of the matters dealt with in this Act and a civil court so empowered shall also be
deemed to be a district court for the purposes of this Act in respect of the matters and subject to
the conditions and restrictions specified in such notification;
(d) “guardian” means a person having the care of the person of a child or of both his person and property
and includes—
(i) a guardian appointed by a Will or other instrument executed by the child’s father or mother, and
(ii) a guardian appointed or declared by a court;
(e) “institution” means a body of persons licensed as a social welfare institution under section 17;
Page 2 of 2
(f) “licensing authority”, in relation to any State, means the Licensing Authority for Adoption Institutions for
that State under section 16;
(g) “parent”, in relation to an adopted child, means the adoptive parent;
(h) “prescribed” means prescribed by rules made under this Act.
End of Document
5th ed
Paras Diwan

(78 of 1956)
3. Act not to apply to Muslims and not to affect operation of Act 78 of 1956,
etc.—
(1) No adoption order shall be made in respect of a Muslim child or for adoption by a Muslim of any child
(whether Muslim or not) under this Act.
(2) Nothing contained in this Act shall affect the operation of the Hindu Adoptions and Maintenance Act,
1956 relating to adoption among Hindus or the operation of any custom relating to adoption among
others:
Provided that notwithstanding the Hindu Adoptions and Maintenance Act, 1956 or such custom, no
adoption made in accordance with the provisions of this Act shall be void merely on the ground
that such adoption has not been made in accordance with that Act or custom.
End of Document
5th ed
Paras Diwan

(78 of 1956)
4. Adoptions to be regulated by this Act.—
(1) Save as provided in section 3, no adoption shall be made except in accordance with the provisions of
this Act and any adoption made in contravention of such provisions shall be void and of no effect.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person
which he or she would not have acquired except by reason of the adoption, nor destroy the rights of
such person in the family of his or her birth.
End of Document
5th ed
Paras Diwan

(78 of 1956)
5. Power to make adoption orders.—

Subject to the provisions of this Act, the district court may, upon an application made in the prescribed form and
manner by a person for the adoption of a child, make an adoption order in respect of such child.
End of Document
5th ed
Paras Diwan

(78 of 1956)
6. Persons who may adopt.—
(1) Any person who has completed the age of twenty-five years and is of sound mind may adopt a child
under this Act.
Explanation.—In the case of adoption of a child by spouses the requirement as to age under this
sub-section shall be deemed to have been satisfied if either of the spouses has completed the age
of twenty-five years.
(2) A person who is married shall not be entitled to adopt himself or herself alone a child, both the
husband and wife, and where there are more wives than one, any one of the wives, may jointly adopt a
child; and in no other case shall more than one person be entitled jointly to adopt a child.
(3) The person or each of the persons seeking to adopt a child shall be older than the child by at least
twenty-one years:
Provided that the district court may dispense with the requirements of this sub-section in any case
if it is satisfied that there are any special circumstances which render it necessary so to do.
(4) Notwithstanding the foregoing provisions of this section, the mother or father of a child not born in
lawful wedlock may, either alone or jointly with her or his spouse, as the case may be, adopt such child
whether or not such mother, father or spouse—
(a) has completed the age of twenty-five years; or
Page 2 of 2
(b) is older than the child by twenty-one years.
End of Document
5th ed
Paras Diwan

(78 of 1956)
7. Persons who may be adopted.—
(1) Any child who is not already adopted or married may be taken in adoption.
(2) No adoption order shall be made where the sole applicant for an adoption order is a male and the child
to be adopted is a female, unless the district court is satisfied that the applicant is the father of the child
or that there are other special circumstances which justify the making of an adoption order.
End of Document
5th ed
Paras Diwan

(78 of 1956)
8. Consent.—
(1) An adoption order in respect of a child shall not be made—

(a) in any case, except with the consent of every person who is a parent or guardian of the child; and
(b) where the child is in the care of an institution, except with the consent of the institution given on its
behalf by all the persons entrusted with, or in charge of, its management:
Provided that the consent of the father of a child not born in lawful wedlock shall in no case be
required in the case of adoption of such child.
(2) The time when and the manner in which the consent referred to in sub-section (1) may be given and
other matters relating to such consent shall be such as may be prescribed.
(3) The direct court may dispense with any consent required by sub-section (1) if it is satisfied that the
person whose consent is to be dispensed with—
(a) has abandoned, neglected or persistently ill-treated the child or has persistently failed, without
reasonable cause, to discharge the obligations of a parent or guardian of the child, or
(b) cannot be found or is incapable of giving consent or is withholding consent unreasonably.
(4) Any consent to an adoption of a child given under this section shall not be withdrawn except with the
permission of the district court.
Page 2 of 2
End of Document
5th ed
Paras Diwan

(78 of 1956)
9. Court having jurisdiction to entertain applications.—

Every application for an adoption order shall be made to the district court having jurisdiction in the place where
the child to be adopted or the applicant resides on the date of the application.
End of Document
5th ed
Paras Diwan

(78 of 1956)
10. Procedure before the court, etc.—
(1) Subject to the provisions of this Act and the rules made thereunder, every application for an adoption
order shall be heard and determined by the district court as nearly as may be in accordance with the
procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits and an adoption
order made under this Act shall be deemed to be a decree for the purposes of the said Code.
Explanation.—Any rules made for the purposes of this sub-section may, in particular, provide for—
(a) the transfer of proceedings relating to an application for an adoption order pending in a district
court to another district court (whether such courts are situated in the same or different States),
and for the circumstances in which and the manner in which such transfer may be made;
(b) the reference to the district court of an application for an adoption order to any expert, or agency
specified in such rules for case study and report.
(2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act and the
rules made thereunder, apply in all respect to the proceedings on such application:
Provided that the district court may receive as evidence any report, statement, document,
information or matter that may in its opinion assist it to deal effectually with the application, whether
or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.
Page 2 of 2
(3) For the purpose of any application for adoption of a child under this Act and subject to any rules made
thereunder, the district court may, if satisfied that it is necessary so to appoint some person or authority
to act as guardian ad litem of the child upon the hearing of the application with the duty of safeguarding
the interests of the child before the court:
Provided that where the application for adoption of a child is made by his guardian, the district
court shall appoint some other person or authority to act as guardian ad litem of the child under
this sub-section.
End of Document
5th ed
Paras Diwan

(78 of 1956)
11. Interim orders.—
(1) Subject to the provisions of this section, the district court may postpone the determination of an
application for an adoption order in respect of a child and may, if it considers just and convenient so to
do, make an interim order giving the care and custody of the child to the applicant for such period as
the court thinks fit by way of a probationary period, upon such terms as regards the provision for the
maintenance and education and the supervision of the interests and welfare of the child and otherwise
as the court may think fit.
(2) On the application of any person or authority interested, the district court may in its discretion modify or
revoke an interim order in respect of any child on such terms and conditions as the court thinks fit.
End of Document
5th ed
Paras Diwan

(78 of 1956)
12. Matters to be considered in making adoption orders.—
(1) The district court, before making an adoption order,—

(a) shall be satisfied that every person or institution whose consent is required under this Act, and
whose consent has not been dispensed with, has consented to and understands the nature and
effect of the adoption order for which the application has been made and in particular in case of
any parent, understands that the effect of the adoption order will be permanently to deprive him or
her of his or her parental rights;
(b) shall give due consideration to the wishes of the child having regard to his or her age and
understanding;
(c) shall be satisfied that the order if made, will be for the welfare of the child; and
(d) shall be satisfied that the applicant has not received or agreed to receive and that no person has
made or given or agreed to make or give to the applicant, any payment or other reward in
consideration of the adoption except such as the court may sanction.
(2) In determining whether an adoption order, if made, will be for the welfare of the child, the district court
shall have regard (among other things) to the health of the applicant as evidenced, in such cases as
may be prescribed, by the certificate of a registered medical practitioner.
(3) The district court in making an adoption order may impose such terms and conditions as it may think fit
and in particular, may require the adopter by bond or otherwise to make for the child such provision, if
any, as in the opinion of the court is just and proper.
Page 2 of 2
End of Document
5th ed
Paras Diwan

(78 of 1956)
13. Appeals.—
(1) Any person aggrieved by an order of the district court allowing or dismissing an application for an
adoption order may, within thirty days from the date of such order, prefer an appeal to the High Court.
(2) The High Court shall subject to the provisions of this Act, have the same powers, jurisdiction and
authority and follow the same procedure with respect to an appeal under this section as if the appeal
were an appeal from an original decree passed by the district court.
End of Document
5th ed
Paras Diwan

(78 of 1956)
14. Effect of adoption order.—
(1) An adoption order shall take effect on such date as may be specified therein by the district court or
where an appeal has been preferred under section 13 against such order on such date as may be
specified in the appellate order.
(2) A child in respect of whom an adoption order is made shall be deemed to be the child of the adopter or
adopters and the adopter or adopters shall be deemed to be the parent or parents of the child as if the
child had been born to that adopter or those adopters in lawful wedlock, for all purposes (including
intestacy) with effect from the date on which the adoption order takes effect and on 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 order in the adoptive family:
Provided that—
(a) the child shall not be competent to marry any person whom the child could not have married if the
child had continued in the family of his or her birth;
(b) any property which vested in the adopted child immediately before the date on which the adoption
order takes effect shall continue to vest in the adopted child subject to the obligations, if any,
attaching to the ownership of such property including the obligations, if any, to maintain the
relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any property which vested in such person before
the date on which the adoption order takes effect.
Page 2 of 2
(3) Notwithstanding anything contained in any other law, where the particulars relating to the birth of a
child in respect of which an adoption order is made have been registered under any law relating to
registration of births, the officer or authority for the time being empowered to give certified extracts of
such particulars shall, upon an application made by or on behalf of the child and upon being satisfied
that the adoption order in respect of the child has taken effect, issue or cause to be issued a certificate
of such particulars setting out the names of the adoptive parents in place of the names of the natural
parents of the child.
End of Document
5th ed
Paras Diwan

(78 of 1956)
15. Special provision for protection of adopted children.—
(1) The district court,—

(i) upon receiving from any person an application in the prescribed form in this behalf, or
(ii) upon a report by any officer authorised in this behalf by the State Government, or
(iii) upon its own knowledge or information, may, by notice, require the parent or guardian of a child
apparently under the age of eighteen years, being a child adopted under this Act to produce such
child on such day as may be specified in the notice if the court has reason to believe that the
child—
(a) is habitually neglected or subjected to cruel ill-treatment,
(b) lives or is made to live by begging,
(c) lives or is made to live in circumstances calculated to cause, encourage or favour the
seduction or prostitution of the child,
(d) frequents or is allowed to frequent the company of any prostitute, or of any smuggler, or thief
or other criminal, or
(e) has been or is being or is likely to be taken out of India for any immoral purpose or for any
purpose detrimental to his welfare and interests.
Explanation.—For the purposes of sub-clause (a), cruel ill-treatment in relation to an adopted child
Page 2 of 2
includes any undue discrimination between him and his brothers or sisters in his adoptive family in the
matter of care, maintenance, training, education, provision of money or property or in any other matter
connected with the physical, material or moral well-being of the child.
(2) On the date fixed for the production of the child under sub-section (1) or on any subsequent date to
which the proceedings may be adjourned, the district court may hear and record all evidence which
may be adduced and pass such order as in the opinion of the court is just and proper in the
circumstances of the case for ensuring the welfare of the child.
(3) The provisions of section 10 shall, so far as may be, apply in respect of proceedings and orders under
this section as they apply in respect of proceedings on applications for adoption orders.
(4) The provisions of this section shall be in addition to, and not in derogation of, the provisions of any law
for the time being in force providing for the care, protection, maintenance, welfare, training, education
and rehabilitation of children.
End of Document
5th ed
Paras Diwan

(78 of 1956)
16. Licensing Authority for adoption institutions.—
(1) There shall be a Licensing Authority for Adoption Institutions for each State.
(2) The licensing authority for a State shall consist of the following members, namely:—
(a) a Chairman who shall be a member of the State Social Welfare Board, if any, or an officer of the
State Government not below the rank of a Joint Secretary to that Government, to be appointed by
the State Government;
(b) one member nominated by the Central Government and not more than five other members to be
appointed by the State Government, from amongst persons who, in the opinion of the Government
making such nomination or appointment, have special knowledge or experience in regard to
matters relating to child welfare and administration of child welfare institutions:
Provided that not less than one-half of the members under this clause shall be women.
(3) The term of office of, the allowances, if any, payable, to, and the other terms and conditions of service
of, the Chairman and other members of the licensing authority for a State shall be such as may be
determined by the State government.
(4) The quorum for the meetings of the licensing authorities for States and the procedure to be followed by
such authorities shall be such as may be prescribed.
(5) No act or proceedings of the licensing authority for any State shall be invalid by reason of the existence
of any vacancy in, or defect in the composition of, the authority.
Page 2 of 2
(6) All members of the licensing authorities shall be deemed to be public servants within the meaning of
section 21 of the Indian Penal Code.
End of Document
5th ed
Paras Diwan

(78 of 1956)
17. Licensing of institutions.—
(1) It shall not be lawful for any body of persons to make any arrangements for the adoption of a child
unless that body is licensed as a social welfare institution under this Act:
Provided that for a period of three months from the commencement of this Act, this sub-section
shall not apply to any body of persons engaged in making such arrangements immediately before
the commencement of this Act.
(2) An application for being licensed as a social welfare institution may be made to the licensing authority
in such form and containing such particulars as may be prescribed.
(3) On the receipt of an application under sub-section (2), the licensing authority, after making such inquiry
as it thinks necessary, shall by an order in writing either grant the licence or refuse to grant it.
(4) Where a licence is refused, the grounds for such refusal shall be communicated to the applicant in the
prescribed manner.
(5) A licence, unless sooner revoked, shall be in force for a period of three years from the date of the issue
of the licence and may, on an application made in this behalf sixty days before the date of its expiry, be
renewed for a like period:
Provided that a licence may be renewed on an application made within sixty days before the date
Page 2 of 2
of expiry of the licence if the licensing authority is satisfied that there was sufficient cause for not
making an application earlier.
(6) Notwithstanding anything contained in sub-section (5), the licensing authority may, for reasons to be
recorded in writing, grant or renew a licence under this section for a period not less than three years.
(7) Every licence granted under this Act shall be in the prescribed form and shall be subject to the
prescribed conditions.
(8) No fee shall be charged for the grant or renewal of a licence under this Act.
(9) A licence granted under this Act shall not be transferable.
End of Document
5th ed
Paras Diwan

(78 of 1956)
18. Revocation of licence.—
(1) The licensing authority may, without prejudice to any other penalty which may have been incurred
under this Act, for reasons to be recorded in writing, revoke a licence granted under this Act—
(a) if any of the provisions of this Act or any of the rules thereunder relating to the grant of licences or
any of the conditions of the licence are contravened; or
(b) if the licensing authority is not satisfied with the conditions, management or superintendence of the
institution concerned:
Provided that before making an order of revocation the licensing authority shall give the holder
of the licence a reasonable opportunity to show cause why the licence should not be revoked.
(2) Where a licence in respect of an institution has been revoked under sub-section (1), such institution
shall cease to function,—
(a) where no appeal has been preferred, against the order of revocation, immediately on the expiry of
the period prescribed for the filing of such appeal;
(b) where an appeal has been preferred but the order of revocation has been confirmed, whether with
or without any modifications, from the date of the appellate order.
(3) On the revocation of a licence in respect of an institution, the licensing authority may direct that any
child who is in the care and custody of the institution on the date of such revocation shall be—
Page 2 of 2
(a) transferred to another institution; or

(b) placed in the care and custody of such person as is in the opinion of the licensing authority a fit
and proper person to be entrusted with the care and custody of the child.
End of Document
5th ed
Paras Diwan

(78 of 1956)
19. Appeal against orders of licensing authority.—
(1) Any person aggrieved by an order of the licensing authority granting or renewing a licence for a period
less than three years or refusing to grant or renew a licence or revoking a licence or by a direction of
the licensing authority may, within such time as may be prescribed, prefer an appeal to the State
Government against such refusal, revocation or direction.
(2) The order of the State Government on such appeal, and subject only to such order, the order of the
licensing authority shall be final and conclusive.
End of Document
5th ed
Paras Diwan

(78 of 1956)
20. Penalties.—
Any person who contravenes any of the provisions of this Act or any of the rules made thereunder relating to
the grant of licences or any of the conditions of a licence, or any of the directions issued under sub-section (3)
of section 18 shall be punishable with imprisonment for a term which may extend to one year, or with fine, or
with both.
End of Document
5th ed
Paras Diwan

(78 of 1956)
21. Prohibition of certain payments.—
(1) Subject to the provisions of this section, it shall not be lawful to make or give to any person any
payment or reward for or in consideration of—
(a) the adoption by that person of a child; or
(b) the grant by that person of any consent required in connection with the adoption of a child; or
(c) the transfer by that person of the care and custody of a child with a view to the adoption of a child;
or
(d) the making by that person of any arrangements for the adoption of a child.
(2) Any person who makes or gives or agrees or offers to make or give any payment or reward prohibited
by this section or who receives or agrees to receive or attempts to obtain any such payment or reward,
shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with
both; and the court may order any child in respect of whom the offence has been committed, to be
removed to place of safety until he can be restored to his parents or guardian or until other
arrangements can be made for him.
(3) This section does not apply to any payment made to an institution by a parent or guardian of a child or
by a person who adopts or proposes to adopt a child, being any payment in respect of expenses
reasonably incurred by the institution in connection with the adoption of the child or to any payment or
reward authorised by the court to which an application for an adoption order in respect of a child is
made.
Page 2 of 2
End of Document
5th ed
Paras Diwan

(78 of 1956)
22. Restrictions upon advertisements.—
(1) Except with the leave of the court competent to entertain an application for an adoption order in respect
of a child, it shall not be lawful for any advertisement to be published indicating—
(a) that the parent or guardian of the child desires to cause the child to be adopted; or
(b) that a person desires to adopt the child; or
(c) that any person (not being an institution) is willing to make arrangements for the adoption of the
child.
(2) Any person who causes to be published or knowingly publishes an advertisement in contravention of
the provisions of this section shall be punishable with fine which may extend to one thousand rupees.
End of Document
5th ed
Paras Diwan

(78 of 1956)
23. Restrictions on removal of child for adoption outside India.—
(1) Except under the authority of an order under section 24, it shall not be lawful for any person to take or
send out of India a child who is a citizen of India to any place outside India with a view to the adoption
of the child by any person.
(2) Any person who takes or sends a child out of India to any place outside India in contravention of sub-
section (1) or makes or takes part in any arrangements for transferring the care and custody of a child
to any person for that purpose shall be punishable with imprisonment for a term which may extend to
six months, or with fine, or with both.
(3) In any proceeding under this section a report by an Indian consular officer or an Indian diplomatic
officer or a deposition made before an Indian consular officer or an Indian diplomatic officer and
authenticated under the signature of that officer shall be admissible as evidence of the matters stated
therein, and it shall not be necessary to prove the signature or official character of the person who
appears to have signed any such report or deposition.
End of Document
5th ed
Paras Diwan

(78 of 1956)
24. Provisional adoption by person domiciled outside India.—
(1) If upon an application made by a person who is not domiciled in India, the district court is satisfied that
the applicant intends to adopt a child under the law of or within the country in which he is domiciled,
and for that purpose desires to remove the child from India either immediately or after an interval, the
court may make an order (in his section referred to as a provisional adoption order) authorising the
applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody
of the child pending his adoption as aforesaid:
Provided that no application shall be entertained unless it is accompanied by a certificate by the

Central Government to the effect that—
(ii) the welfare and interests of the child shall be safeguarded under the law of the country of domicile
of the applicant;
(iii) the applicant has made proper provision by way of deposit or bond or otherwise in accordance with
the rules made under this Act to enable the child to be repatriated to India, should it become
necessary for any reason.
(2) A provisional adoption order may be made under this section in any case where an adoption order
could be made in respect of the child under this Act but shall not be made in any other case.
Page 2 of 2
(3) The provisions of this Act relating to an adoption order shall, as far as may be, apply in relation to a
provisional adoption order made under this section.
End of Document
5th ed
Paras Diwan

(78 of 1956)
25. Power to make rules.—
(1) The Central Government may, by notification in the Official Gazette, and after consultation with the
Supreme Court, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the provisions of sub-section (1), such rules may
provide for—
(a) the form and the manner in which an application for an adoption order shall be made under section
5;
(b) the time when and the manner in which consent may be given to the adoption of a child and other
matters relating to such consent under sub-section (2) of section 8;
(c) the procedure which may be followed on hearing application by a district court and the
circumstances in which and the extent to which such applications may be heard and determined
otherwise than in open court under sub-section (1) of section 10;
(d) the quorum for the meetings of licensing authorities and the procedure to be followed by licensing
authorities under sub-section (4) of section 16;
(e) the form and particulars of an application for a licence in respect of an institution under sub-section
(2) of section 17;
(f) the manner in which the grounds for refusal of a licence shall be communicated to the applicant
under sub-section (4) of section 17;
Page 2 of 5
(g) the form of licence in respect of institutions and the conditions thereof referred to in sub-section (7)
of section 17, the qualification of persons who may be engaged by institutions to make
arrangements for adoption, the provisions which should be complied with by institutions in regard
to reception, care, protection and welfare of children under their control and the inspection of
records and premises of institutions;
(h) the time within which an appeal may be preferred to the State Government under section 19;
(i) the form in which, and the authorities to whom, an application for the certificate referred to in the
proviso to sub-section (1) of section 24 may be made; the provision which an applicant for such
certificate has to make for repatriation to India of the child to which the application relates and the
conditions which such an applicant has to comply with;
(j) any other matter for which provision has to be or may be made by rules.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as soon as may be
after it is made, before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case
may be; however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
STATEMENT OF OBJECTS AND REASONS
In India there is no general law of adoption though it is permitted by statute amongst Hindus and by custom
amongst a few numerically insignificant categories of persons. In recent years there has been a growing
demand for a general law of adoption in India, particularly from several social welfare organisations and social
workers who see in the institution of adoption an opportunity to provide proper homes and families for
abandoned, destitute and neglected children. The basis of this demand lies embedded in Article 39 of the
Constitution which provides inter alia that the State shall direct its policy towards securing that childhood and
youth are protected against exploitation and against material and moral abandonment. This Bill seeks to meet
this demand.
2. The salient features of the Bill may be stated as follows:—

(a) The Bill seeks to provide for an enabling law of adoption applicable to all communities other than
Muslim community and in addition to and not in supersession of the Hindu Adoptions and
Maintenance Act, 1956 in so far as it relates to adoption and all customary laws permitting
adoption.
(b) It provides for adoption by order of district court.
(c) It seeks to provide necessary safeguards to prevent unsuitable adoptions and adoptions with
mercenary or immoral objects and to ensure that adoption of a child is allowed only when it is in
the best interest of the child.
(d) It permits the adoption of any child (a person who has not completed 18 years of age) who is not
already adopted or married.
(e) It permits, subject to certain qualifications and restrictions, any person of sound mind who has
completed the age of 25 years to adopt a child.
(f) It makes suitable provisions as to consents of the parents of the child to be adopted and of the
institutions, if any, taking care of the child.
(g) It seeks to equate as far as possible the status, rights and obligations of an adopted child with that
of a child born in lawful wedlock.
(h) It makes special provisions for protection of adopted children who are neglected or cruelly ill-
treated or exploited or exposed to pernicious influences.
Page 3 of 5
(i) It makes detailed provisions as to licensing and supervision of institutions desiring to make
arrangements for adoption of children.
(j) It provides for the making of provisional adoption orders permitting foreigners to take children out
of India for the purpose of adoption.
3. The notes on clauses explain in detail the various provisions of the Bill.
New Delhi;
The 3rd December, 1980 P. Shiv Shanker
Notes on Clauses
Clause 3.—Sub-clause (1) provides that no adoption order shall be made in respect of a Muslim child or for
adoption by a Muslim of any child (whether Muslim or not) under this Bill.
Sub-clause (2) provides that the provisions of the Bill, when enacted, would be available in addition to and not
in supersession of the provisions relating to adoption contained in the Hindu Adoptions and Maintenance Act,
1956 and the customary law relating to adoption.
Clause 4.—This clause provides for the application of the provisions of the Bill, when enacted, save as provided
in clause 3, to all adoptions. An adoption made in contravention of the provisions of the Bill, when enacted, will
be void and of no effect.
Clause 5.—This clause confers the powers to make adoption orders on district courts.
Clause 6.—Any person who has completed the age of twenty-five years and is of sound mind can adopt a child
[sub-clause (1)]. A married person can adopt only jointly with his wife. The same child cannot be adopted by
more than one person unless it is by husband and wife adopting jointly [sub-clause (2)]. There should be a
minimum difference of twenty-one years between the adopter and the child to be adopted [sub-clause (3)]. All
these requirements except the one as to the person adopting being of sound mind have been made
inapplicable in the case of adoption by a natural parent of his or her illegitimate child [sub-clause (4)].
Clause 7.—This clause provides that a child not already adopted or married may be taken in adoption, and that
a sole male applicant may adopt a female child only if he is the father of the child or there are other special
circumstances justifying such adoption.
Clause 8.—The clause provides for consent of the parent or guardian of a child and where the child is in the
care and custody of an institution, of the institution, for the adoption of the child. The clause also empowers the
court to dispense with the consent of a parent or guardian in cases where such parent or guardian has
abandoned, neglected or persistently ill-treated the child or cannot be found or is incapable of giving his
consent or is withholding his consent unreasonably. The consent once given cannot be withdrawn except with
the permission of the court.
Clause 9.—This clause provides that an application for an adoption order may be made to the district court
having jurisdiction in the place where the child to be adopted or the person desiring to adopt resides on the date
of application.
Clause 10.—This clause deals with the procedure in accordance with which applications for adoption orders
shall be heard and determined by the district courts. The clause also makes provision for the appointment, if
necessary, of a guardian ad litem of the child to be adopted for safeguarding the interests of the child before the
court.
Clause 11.—This clause empowers the district court to postpone the determination of an application for an
adoption order in respect of a child and make, if the court considers just and convenient to do, an interim order
giving the care and custody of the child to the applicant by way of probation. This device will enable the court to
satisfy itself better on the question whether the adoption order, if made, will be in the best interests of the child.
Clause 12.—This clause specifies the matters which the district court has to take into account before making an
Page 4 of 5
adoption order in respect of a child. Among other things, the court will have to give due consideration to the
wishes of the child to be adopted having regard to his or her age and understanding and will have to satisfy
itself that the order, if made, will be for the welfare of the child.
Sub-clause (3) of the clause empowers the district court to impose such terms and conditions as it may think fit
in making an adoption order and to require the adopter by bond or otherwise to make for the child such
provision, if any, as in the opinion of the court is just and proper.
Clause 13.—This clause provides for appeal to the High Court against an order of a district court allowing or
dismissing an application for an adoption order.
Clause 14.—This clause lays down the effects of an adoption order. The clause seeks to assimilate the position
of an adopted child with that of a natural born legitimate child to the maximum extent possible. The clause
provides that an adopted child shall be deemed to be the child of his or her adoptive parent and the adoptive
parent shall be deemed to be the parent of the child as if the child had been born to the parent in lawful wedlock
for all purposes with effect from the date on which the adoption order takes effect. Provision is also made of the
severance of the ties of the child in the family of his or her birth, except for the purpose of prohibition relating to
marriage. Exceptions are provided to ensure that as a result of the adoption vested rights of any person are not
affected vide clause 14(2) proviso. Sub-clause (3) provides for issuing of certificate setting out the particulars
such as the names of the adoptive parents in place of the names of the natural parents of the adoptive child for
the purpose of changing the entries in the Register of Births maintained under the relevant Act.
Clause 15.—This clause makes special provision for protection of children adopted under the provisions of the
Bill. Under the clause the district court may require the parent or guardian of an adopted child to produce such
child before the court if the court has reason to believe that the child—
(i) is habitually neglected or cruelly ill-treated, or

(ii) lives or is made to live by begging, or
(iii) lives or is made to live in circumstances calculated to cause, encourage or favour the seduction or
prostitution of the child, or
(iv) frequents or is allowed to frequent the company of any prostitute, smuggler, thief or other criminal, or
(v) has been or is being or is likely to be taken out of India for any immoral purpose or for any purpose
detrimental to his welfare and interests.
The court after hearing and recording all evidence, which may be adduced, may pass such order as in its
opinion is just and proper for ensuring the welfare of the child.
Clauses 16 to 20.—These clauses make provisions as to licensing and supervision of institutions desiring to
make arrangements for adoption of children.
Clauses 21 and 22.—These are self-explanatory.
Clause 23.—This clause makes the taking or sending of an Indian child outside India for purposes of adoption
punishable except where the child is so sent or taken out under the authority of a provisional adoption order
(vide clause 24) made by a district court.
Clause 24.—This clause empowers the district court to make a provisional adoption order permitting a person
who is not domiciled in India and who wants to adopt under the law of the country of his domicile a child
residing in India, to take the child out of India for the purpose. The same procedure and the same
considerations which apply to the making of an adoption order, apply to the making of a provisional order.
Further, an application for a provisional adoption order in respect of a child has to be accompanied by a
certificate issued by the Central Government to the effect that the applicant is in its opinion a fit person to adopt
the child and that the welfare and interests of the child shall be safeguarded under the laws of the country of the
domicile of the applicant and that the applicant has made proper provision to enable the child to be repatriated
to India, if necessary.
FINANCIAL MEMORANDUM
Clause 15 of the Bill makes a special provision for the protection of an adopted child. Sub-clause (1)(ii) of that
Page 5 of 5
clause enables the State Government to authorise an officer to report to the district court in respect of an
adopted child who needs special protection. As existing officers will be authorised this is not likely to involve
any expenditure.
2. Sub-clause (2) of clause 16 of the Bill, inter alia, relates to the appointment of a Licensing Authority
consisting of a Chairman and six members by the State Government. The State Government in respect
of a Union territory is the Central Government. Some recurring expenditure will be involved in regard to
the payment of allowances to the Chairman and the members of the Licensing Authority. Some
recurring office expenditure of a negligible nature may also be involved. The exact amount of such
expenditure would depend upon the number of applications for licences, the number of licences
granted and the action to be taken in relation thereto. The estimated expenditure on this and on
allowances of the Chairman and the members of the Licensing Authority is not likely to exceed Rs.
10,000 per annum for each Union territory.
3. The Bill does not involve any expenditure of a non-recurring nature.
MEMORANDUM REGARDING DELEGATED LEGISLATION
Clause 25 of the Bill empowers the Central Government to make, after consultation with the Supreme Court,
rules for carrying out the purposes of the Act. The matters in respect of which rules may be made relate, inter
alia, to the form and the manner in which applications may be made under the Act; the manner in which
consent may be given to the adoption of a child; the procedure to be followed on hearing applications for
adoptions including the circumstances in which and the extent to which such applications may be heard and
determined otherwise than in open court; the care and custody of children awaiting adoption; the form and the
particulars of an application for a licence in respect of an institution; the form of and authorities to whom an
application for certificate, required to be filed with an application for provisional adoption order, should be made;
the provision which an applicant for such certificate should make for repatriation to India of the child to which
the applicant relates and conditions which such an applicant has to comply with; the manner of communication
of the grounds for refusal of licence in respect of an institution; the form of a licence in respect of an institution
and the conditions thereof; the time within which appeal may be preferred against an order of refusal or
revocation of a licence in respect of an institution, etc.
2. As the various matters in respect of which rules may be made under the clause relate to matters of
form, procedure or detail, the delegation of legislative power is of a normal character.
End of Document
5th ed
Paras Diwan
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART II THE HINDU MINORITY
AND GUARDIANSHIP ACT, 1956
PART II THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

(32 of 1956)
[25th August, 1956]
An Act to amend and codify certain parts of the law relating to minority and guardianship among Hindus.
BE it enacted by Parliament in the seventh year of the Republic of India as follows:—
PRE-ACT HINDU LAW OF GUARDIANSHIP AND MINORITY
King asParens Patriae
Texts on guardianship of minor children under Hindu law are few. This, in the early days of administration of Hindu
law during British Raj, led to some confusion as to the real state of law. Some writers of eminence on Hindu law
helped in the creation of confusion. Two samples are taken to illustrate this.
In his treatise, Hindu Law, Strange observed:1
The natural guardians of a minor are, first his father, then his mother, elder brother, paternal relatives.
MacNaughten in his celebrated work, Principles and Precedents of Hindu Law, gave a more elaborate statement:2
A father is recognized as the legal guardian of his children, when he exists; and when the father is dead the mother
may assume the guardianship. In default of her, an elder brother of a minor is competent to assume the
guardianship of him. In default of such brother, the paternal relations generally are entitled to hold the office of
guardian; and failing such relatives, the office devolves on the maternal kinsmen, according to their degree of
proximity; but the appointment of guardians universally rests with the ruling power.
At that time, it was difficult to escape from the scholarship and eminence of Strange and Macnaughten. In
Seetharamanna v. Appiah,3 Mr. Justice Sastriyar said that there was nothing in Hindu law which limited the
guardianship only to the father, the mother and failing them, the king. In Surayya v. Subbamma,1 Devadoss and
Jackson, JJ., went a step further in observing that there was no reason, considering the habit and custom of the
people on this part of the country, why the paternal grandmother should not be considered the natural guardian of
her grandchildren in the absence of the father and the mother. The Bombay High Court in Nathuram v. Shoma
Chhagan,2 took the view that after the death of the parents, the nearest male relative of the father has the right to
guardianship.
However, in our submission, there is nothing in the ancient texts which lends support to the view of Strange and
Macnaughten or of the Judges of the Madras and Bombay High Courts. Mere insufficiency of the material does not
warrant the conclusion to which our eminent jurists and judges reached. Neither there is any reason for confusion.
Page 2 of 9
As far as the present writers are aware the following are the only relevant texts in our ancient literature on the
subject: A text of Manu runs:3
The king shall protect the inherited (and other) property of a minor until he has returned [from his teacher’s home] or
until he has passed his minority.
Gautama declared:4
The king should protect the property of a child till it has attained majority or has completed his education.
According to Vasishtha:5
The king might entrust others with the minor’s affairs.
Narada said:6
The father has the first claim; after him comes the mother, and then comes the elder brother. His powers as
guardian will be determined by the king and will extend to whatever may be deemed justly required for the benefit of
the infant.
A passage from Ratanakara runs:7
Wealth which descends to a minor by inheritance becomes the property of the minor, let the king guard it, that is let
him protect it from other heirs.
In his gloss over the above quoted text of Manu, Kulloka said that the king should protect the inherited (and other)
property of the orphaned minors from being illegally usurped by uncle or other relations; he should protect the
wealth of the minor who has, on account of mental or physical weakness, not attained maturity, even though he
might have attained the age of majority.
It is noteworthy that with the exception of Narada, who alone mentions the father, the mother and the elder brother
as guardians in that order, all other sages merely declare the king to be the guardian of minor’s property. In none of
the above texts, in our submission, including that of Narada, there is any mention of the guardianship of the person
of the minor. The texts, invariably lay down that the king is to protect the property of the minor. It seems that the
texts, as understood by Kulloka, refer to the guardianship of the property of the orphaned minor. As in that society
even an orphan was required to go to his guru for his education, the question of guardianship of this person
probably seldom arose. And when a pupil goes to the teacher’s ashrama for study, he was under the care, control
and protection of his guru. Thus, the teacher was the guardian of his pupil.
But, then the question of protection of the property of minor, who went to guru’s house or who remained at home
was of some importance. It seems that it was for the protection of the property of an orphaned minor that the King
was enjoined to look after his property. That is so, is clearly brought about by the gloss of Kulloka. There is also
intrinsic evidence that the text of Manu,1 refers to the orphaned minor, and not to the minor whose father was alive.
The next text in the Manusmriti imposes a similar obligation on the king in respect to widows, women afflicted with
diseases and barren women.2
That even the father was not mentioned as a guardian of his minor children by our sages is not an omission as
some may think. That society could not conceive of the guardian’s power as greater than the powers of the father.
The father as father had such wide and sweeping powers that he needed no more powers in any other capacity. In
the early society, before the transformation of patriarchal family to the Hindu joint family, the father’s absolute
powers over his household and children were fully and firmly recognized. To call such a father as guardian, natural
and legal, was superficial. Thus, the question of father’s guardianship of the person or property of the minor could
not have arisen in that society.
When the patriarchal family got transformed into the typical Hindu joint family, the question again could not have
arisen. The father as the karta of the joint family enjoyed fairly wide powers. All the minors of the family were under
his protection; they were the members of the joint family. The share of the minor in the joint family property was
obviously under the management of the karta along with the entire joint family property. His person was under his
protection. Then, the Hindu joint family was a never-ending, almost perpetual institution. The death of the father or
Page 3 of 9
karta did not matter. The eldest male member of the family immediately became the karta on the death of the
father. And thus the minor, his person and property, was always under the protection and care of the joint family. In
that society the separate property of a coparcener was almost non-existent.3
Thus, so long as the family remained joint—and it remained joint for a fairly long time—the question of the
guardianship of the person and property of the minor could not arise. Even if the father died it did not make any
difference. Nor did the death of the mother make any difference. Ordinarily, the king, too, had no power to interfere
in the affairs of the joint family.
Under Hindu law, since a joint family is like a perpetual corporation, the death of the father did not necessitate a
guardian. The Hindu institution of joint family has been so unique and all-pervading that it continues for generations
after generations; even when it is broken up, it invariably comes into existence in the next generation. And it
continues to dominate the entire family life. All minors lived under its protection. With such dominant a role of the
joint family, there could not have occurred many cases where a minor would live outside the joint family. This
seems to be the reason of the difference of approach towards guardianship between the Hindu law and Roman law.
The Roman minor needed protection to grow up so as to become capable of assuming his own patrie potestas. The
Hindu minor, being always under the protection of the joint family, needed no such protection. It was only when the
Hindu minor was an orphan (in the sense of a parentless child) that he needed protection. Another case might be,
when all the members of a joint family were dead. It was for cases that our sages enjoined on the king to protect the
interest of the minor. King could discharge his duty by appointing another person as guardian.
In our submission under Hindu society the question of guardianship could have arisen only in two cases:
(a) In respect to the separate property of the minor, and

(b) In respect to a minor orphan.
As to the former any relative could have undertaken the management. In the latter case any person interested in
the minor could have assumed guardianship. In case there was no person to assume charge, or in case there was
the dispute between several claimants, the king had the power to decide the question. Overall control was vested in
the king. As to the powers of such guardians, there was no difficulty. In the karta of joint family there was an
analogy of one person looking after the interest of another. And we find that the powers of the guardian of a Hindu
minor have been built on the analogy of the powers of the karta. Hindu sages did not attach much importance as to
how a guardian came into existence, because, as Dr. Gour puts it, in Hindu law the question that posed was not
‘who did those acts’ but ‘why they were done’. If they were justified under the circumstances, they were valid; it was
immaterial who did them and whether or not he was invested with some authority.
When Hindu law came for interpretation before the Judges trained in English legal system this context was
forgotten. Some superficial resemblance between the Hindu law and English law on the subject of guardianship
was noted. And certainly, in one respect, there was a marked resemblance between the Hindu law and English law.
The king was the paramount and supreme guardian according to our sages. The king as parens patriae of all his
minor subjects was also supreme guardian under English law.
In Banke Behary v. Banku Behary,1 their Lordships of the Calcutta High Court observed: “The Hindu law vests the
guardianship of the minor in the sovereign as parens patriae. Necessarily this duty is delegated to the minor’s
relations.”
Justice Pal in Budhkaran Chaukhani v. Thakur Prosad,2 said: “As regards the guardianship of an infant, the Hindu
law vests it in the king as parens patriae.”3
Mayne also observed without any hesitation: “The Hindu law vests the guardianship of the minor in the sovereign as
parens patriae”.4
Strange5 and Macnaughten6 also expressed similar views.

Father and Mother as Natural Guardian
A further resemblance between the Hindu law and English law was found in the position and powers of the father.
Under both the systems the father exercised almost absolute powers over his children. The father had pivotal
position in the family under both systems.
Page 4 of 9
Armed with this knowledge of Hindu law the Judges found no hindrance in finding out further resemblance in both
the systems. In 1914 the Privy Council in Besant v. Narayaniah,7 said: “there is no difference in this respect
between English and Hindu law. As in this country so among the Hindus, the father is the natural guardian of his
children during their minorities...”
Thus, was developed the Hindu law of guardianship. The fact that our sages did not say much on the subject did
not matter. The text of Narada, the King’s position as paramount guardian, the pivotal position of the father in the
joint family, led to the importation of some rules of English law. One merit of it was that we could have a Hindu law
of guardianship and scantiness of the texts did not hamper it. In saying that the father was the natural guardian of
his children a beginning was made and well made.
That after the father, mother was the natural guardian was assumed. No discussion seemed necessary and there
was none. The solitary text of Narada was there. If some support was necessary it was enough.
Then, in the early period of administration of Hindu law, most probably under the influence of Strange and
Macnaughten’s exposition of Hindu law, a long list of guardians of the person and property was developed.1 Some
support was derived from the texts above referred to.
In the next phase of development of Hindu law of guardian, a re-appraisal of texts was made and some rethinking
was done. The result was that it was laid down that the father was the natural guardian of his minor children and
after him it was the mother, no other person could be the natural guardian of the minor. In Kristo Kissor Neoghy v.
Keder Moye Dossee,2 Garth, C.J., said:
The passage..........supports the view that in the absence of the father and the mother, or the guardian appointed by
the father, the selection of the guardian is to be made by the court, which, of course, represents the ruling power.
In Puroshotama Ratho v. Brundavan,3 the Madras High Court observed:
Under Hindu law de jure guardians would be either the parents or a testamentary guardian and that no other person
can be the de jure guardian unless appointed by the Court.
A Full Bench of the Madras High Court considered the entire question in Chennappa v. Onkarappa,4 and observed:
It is common ground that the ancient texts of Hindu law do not provide for the management of a minor’s property
beyond stating that the guardianship shall vest with the King.........Custom has however recognized that the father of
a Hindu minor, and on his death the minor’s mother, is entitled to guardianship of the minor’s estate. This has been
accepted from times immemorial so universally that the right of the father or of the mother, as the case may be,
cannot now be disputed, but it appears to be equally clear that custom has not extended the rule beyond the
mother.
That there was nothing in Hindu law to hold that the father, and after him the mother was the guardian of the minor
children (much less any other relative) was also recognized by the Calcutta High Court in Jiban Krishna v. Sailendra
Nath.5 After quoting verse 27 of Chapter VIII of the Manusmriti, Das, J., observed:5
The rights of the father, and of the mother after the death of the father, over their minor children are, therefore, not
derived from any positive rule of Hindu law, but arise out of necessity and are sanctioned by practice and have
been so long and universally acknowledged as to be now indisputable.
Trevelyan also took the same view. According to him:1
The Hindu law does not seem to prescribe any positive rule with respect to the right of guardianship; but by practice
and custom the rights of certain relations of a Hindu minor have now almost acquired the force of law. For instance,
the rights of the father, and of the mother after the death of the father, have been so long and universally
acknowledged as to be now indisputable.
It has nowhere been shown as to from where and when this universal practice of custom grew. In our submission
this came to us as an inspiration from English law.
The father is not merely the natural guardian of his minor children but his rights over his children are considered
Page 5 of 9
paramount.2 As late as 1954 the Madhya Bharat High Court said: “The father is the natural guardian of his minor
son and he cannot be deprived of the custody and possession of his minor son.”3
Thus, the father’s supremacy of the guardianship of his minor children was firmly established. So long he was alive,
the court ordinarily had no power to deprive him of the guardianship and appoint another as guardian.4Section 19
of the Guardians and Wards Act, 1890, also give statutory recognition to this by laying down that a father could not
be deprived of the guardianship of the person of the minor children so long as he was not unfit.5 It was held that
even the loss of the caste of the father6 or his conversion to another religion7 or his remarriage8 or his leading an
immoral life9 were not sufficient to deprive him of the guardianship of his minor children. His power of appointing
guardian by his will was also recognized, and so much so that he could exclude the mother from the guardianship
of his minor children.1
Before 1956, the position that emerges may be summed as under:
(a) The sovereign as parens patriae is the supreme and paramount guardian of all the minor children; this
power is exercised by the courts.2
(b) The father and after his death the mother, is the natural guardian of minor children, natural3 as well as
adopted;4 no other person could be the natural guardian of a minor.
(c) The father has the power of appointing testamentary guardian of the person of the minor, even to the
exclusion of the mother.5
(d) The mother was the natural guardian of her minor illegitimate child and the putative father could not be the
guardian of his minor illegitimate even after the death of the mother.
Thus, the dominant feature of the law of guardianship under Hindu law that emerges is the predominant position of
the father in respect to the guardianship of his minor children. So much so that the father could exclude the mother
from guardianship after his death by appointing someone else as the guardian of his children.5The only
ameliorating features were certain provisions of the Guardians and Wards Act, 1890, which helped the courts in
mitigating the rigour of absoluteness of the powers of the father. But there, too, section 19 stood in the way. It was
only recently that the trend of judicial interpretation changed to firmly enforce the principle that welfare of the minor
is the paramount consideration. Then under section 25 of the Act the question of custody cannot be agitated
independently of guardianship; only a person who is guardian can apply for custody.
Statutes Affecting Traditional Hindu Law
Till the passing of the Hindu Minority and Guardianship Act, the traditional Hindu law remained in force throughout
the British India and most of the Indian States.
In the Portuguese pockets of Goa, Daman and Diu, the Hindu law was replaced by the Portuguese law and in the
French pocket of Pondicherry, it was replaced by French law.
When the Hindu Widows Remarriage Act, 1856 was passed such were the notions in Hindu society that though it
permitted its widows to marry (though not without protest), it deprived them of the guardianship of their minor
children from the deceased husband.
Section 3 of the Act runs:
On the re-marriage of a Hindu widow, if neither the widow nor any other person has been expressly constituted by
the Will or testamentary disposition of the deceased husband the guardian of his children, the father or paternal
grandfather or the mother or paternal grandmother of the deceased husband, or any male relative of the deceased
husband, may petition to the highest court having original jurisdiction in civil cases in the place where the deceased
husband was domiciled at the time of his death for the appointment of some proper person to be guardian of the
said children, and thereupon it shall be lawful for the said court, if it shall think fit to appoint such guardian who
when appointed shall be entitled to have the care and custody of the said children, or any of them during their
minority, in the place of their mother; and in making such appointment the court shall be guided, so for as may be,
by the laws and the rules in force touching the guardianship of children who have neither father nor mother:
Provided that, when the said children have no property of their own sufficient for their support and proper education
whilst minors, no such appointment shall be made otherwise than with the consent of the mother unless the
proposed guardian shall have given security for the support and proper education of the children whilst minors. This
Page 6 of 9
provision is obviously in conflict with the provisions of the Hindu Minority and Guardianship Act and has been so
held by our courts. See para 4 of our commentary on section 5 of the Act.
Guardianship in Marriage
Hindu law as administered during the Raj permitted child marriages. The child marriage—even children at mothers
breast were wedded—were rampant among the Hindus. The Indian State of Mysore was the first State to make an
effort in the direction of prohibiting child marriages. It passed a law to that effect as early as 1894. Thereafter, other
Indian States, Jammu and Kashmir, Baroda, Mandi Kota moved in that directions, and by 1928 most of the Indian
States had passed laws ‘prohibiting child marriage.’ In 1929, the then central legislature enacted the Child
Marriages Restraint Act which laid down the minimum age of marriage for girls as completion of 15 years and for
boys completion of eighteen years. (at present the minimum age of marriage for a girl is eighteen years and for
boys it is twenty-one years). However, if performed, the child-marriages were valid. But these statutes did impose
restrictions on the guardians of marriage in giving the child in marriage as penal consequences ensued. A parent
who promotes or permits a child marriage to be solemnized can be punished for a term of simple imprisonment
which may extend to three months.1
Under the modern Hindu law guardianship in marriage has been abolished as section 6 of the Act was repealed by
the Child Marriage, Restraint (Amendment) Act, 1978.
Age of Majority
Although the Indian Majority Act, 1875 raised the age of majority to eighteen years and to twenty-one years in case
the child was under Courts of Wards, this did not affect the law of marriage, divorce, adoption. However, for the
purpose of guardianship the age of minority came to the non-attainment of the age of eighteen years. In other
words, a child who has not attained the age of eighteen years is regarded a minor and for whose guardianship the
law makes provision.
The various Indian provinces passed the Courts of Wards Act which affected the Hindu law of Guardianship as
when child was taken under the court of wards, the natural guardian ceased to be his or her guardian and
guardianship passed to the collector under the Court of Wards Act.
Guardians and Wards Act, 1890
The Guardians and Wards Act was passed in 1890. It enacts a uniform law for appointment and declaration of
guardians and allied matters and applies to all persons, irrespective of the fact as to which caste or community they
belong though in certain matters, the court will give consideration of the personal law of parties.1 In the third part of
this work we would dwell on the provisions of the Act.
Hindu Minority and Guardianship Act, 1956
The Hindu Minority and Guardianship Act, 1956 reforms and codifies Hindu law of guardianship and minority.
Under the Act the supremacy of paternal right during the life-time of the father is retained intact. So long as he is
alive, he is the sole guardian. Only change of consequence that has been made is that after the death of the father
the mother is the indisputable natural guardian of her minor children. The father cannot deprive her of it even by his
Will. If the father has died and had made a Will appointing someone as guardian that person will not be the
guardian so long as the mother is alive and if she by her Will had appointed someone else as the guardian then it
would be her appointee who will be the guardian, and not that of the father. If she dies without making an
appointment, then, and then only, the testamentary guardian appointed under the Will of father would be the
guardian.
The Act improves the mother’s position in the sense that after the death of the father, the mother is indisputedly the
sole natural guardian of her children; the father cannot deprive her of it even by his will. But, then during the life-
time of the father the mother’s position is entirely subordinate to the father; rather she has no position. So long as
he is living he is the sole guardian and as natural guardian has all the rights and the mother has none. The proviso
to clause (a) of section 6 of the Act does not go much to improve the position of the mother. She is not given the
right of custody of her children of tender age unlike the Muslim mother who is given the right of hizanat of her minor
children upto certain age. Even if assuming that she has the right to custody, the right to custody as compared to
guardianship is such inferior right. Further, it is conditioned by the word ‘ordinarily’.1 Then, it seems that if the child
is five years old or above, the father is entitled to custody by right.
In our submission, the law of guardianship has not to be looked from the point of view of anybody’s right; it has to
be looked from the point of view of the welfare of the minor. In that view guardianship is a liability, a responsibility
Page 7 of 9
and not a right. For instance, the mother is given the custody of her children up to the age of five, not because the
law recognized any right of the mother, but because it is deemed to be in the interest and welfare of the minor that
she should have custody. A minor of such tender years naturally needs the care and affection and protection of the
mother much more than that of the father. At this age the mother is more qualified to look after his interest than the
father. Similar principle should be applicable to a child above that age. The present writers are of the firm opinion
that the paramount and even the sole policy of guardianship should be based on the consideration of the welfare of
the minor. The welfare should be the principle on which the entire law should be based. In that view, in
guardianship, no rights, strictly speaking, are involved against the minor. Whatever rights there are, they are against
the third person and are given for the fulfilment of obligation inherent in the guardianship. When law lays down that
the father or mother are the natural guardian, they are not so considered because they have any rights over their
children (though they may have rights in respect to children), but because as parents of their children they, and they
alone (in ordinary circumstances) can have their welfare uppermost in their mind. No other person, no other
relative, can give so much affection, care and attention to the children as they can, no one else can make bigger
sacrifices for them, than they can. Then, can we say that there is any distinction in this respect between the mother
and father?
The distinction between the mother and father not merely works hardship on the mother but is also not in the
welfare of the minor. For instance, when the father and mother are living apart, either under a decree of a court or
otherwise, the father being the natural guardian of the children, can always claim the custody of the children and all
other rights in respect to children which guardianship implies. And, if the mother claims custody, it would be for her
to show that the welfare of the child requires that she should be given custody. Light or heavy, the burden is on her
and she must discharge it if she asks for custody. The father need not prove anything. Then under the present state
of law she cannot claim bare custody, in proceedings other than matrimonial proceedings. It is because an
application for custody has still to be made under section 25 of the Guardians and Wards Act, 1890, and under that
section only a guardian can apply.2Thus, before the mother applies for custody she would have to apply for
guardianship. It is true that section 13 of the Hindu Minority and Guardianship Act, 1956, now firmly lays down that
in the appointment of guardians the court is to be guided by the welfare of the minor and has not to consider that
anyone is entitled to guardianship under any law. But then the mother has still to apply for guardianship and the
father has not to. The mere fact that she has to apply puts her to disadvantage. It would be still for her to prove that
the welfare of the child requires that the natural guardian (i.e., the father) should not be appointed guardian and that
the welfare requires that she should be appointed guardian. But should all that be necessary simply because she
happens to be the mother and not the father?
In our submission the provision in section 6 of the Hindu Minority and Guardianship Act, 1956, can only be
explained by saying that our law is still under the influence of ideas of patriarchal society, where the father’s rights
over everything in his household, including the wives and children, were supreme. When the entire question of
guardianship and custody (in whatever form that question was considered) was looked at from the angle of the right
of the father1 and not from the point of view of the principle that the welfare of the minor is paramount, there could
not be any other explanation. If the law of the guardianship is firmly based on the principle of welfare of children,
then, no one can say that the welfare of the minor rests in the guardianship of the father and not in the guardianship
of the mother; or that the welfare of children is better served in the guardianship of the father than in the
guardianship of the mother.
In view of the above, it is submitted, that the law should lay down that the father and the mother are both the natural
guardians of their minor children. They are the equal and coordinate natural guardians of their minor children; both
having equal responsibility and obligations and equal rights. Whenever there may arise any dispute between them
relating to their children, it would not at all be necessary to agitate the question of guardianship. Any dispute
between them, relating to custody of children or any other matter, can then be very neatly decided by the court on
the principle of welfare of the children; no other question or consideration would be involved. There would be only
one basis for decision of a case; welfare of the children.
The suggestion that the father and mother should be simultaneous guardians of their minor children has not been
given because of the principle of equality of sexes. In our submission the social interest needing protection is the
childhood, the infancy, and not the right of any parent. Since both the parents together can best subserve the
interest and welfare of the children, it is suggested that they should be accepted by the law as equal and coordinate
natural guardian of their minor children.
In view of the above, no other person should be the natural guardian of children.
Page 8 of 9

2 Quoted in Kristo Kissor Neoghy v. Kader Moye Dossee, (1878) 2 CLR 583.
3 (1926) ILR 49 Mad 768.
1 (1927) 53 MLJ 677 [LNIND 1927 MAD 213].
2 (1890) ILR 14 Bom 562.
3 Manu, VII 27.
4 Gautama, 10, 48.
5 Vasishtha, 16, 7-8.
6 Narada, XIII, 28-29.
7 See 2 Colebrook, Digest, at 575-76.
1 Manu, VIII, 27.
2 Manu VIII, 28: “In like manner care must be taken of barren women, of those whose family is extinct, of wives and
widows faithful to their lord, and women afflicted to disease.”
3 Under the Mitakshara law, the only separate property which minor could have was sapratibandha daya. Minor could not
obviously have any gains of learning or self-acquisitions.
1 AIR 1943 Cal 203 .
2 ILR (1942) 2 Cal 318 .
3 ILR (1942) 2 Cal 318 . The English judges administering English law have also expressed similar views. Lord
Chancellor Cranworth in Hope v. Hope, 43 ER 534, said: “...........and according to the principles of our law, the
Sovereign, as parens patriae, is bound to look to maintenance and education (as far as it has the means of judging) of
all his subjects.” In Butler v. Freeman, Amb 301, Lord Harwicke said that the courts exercise the power over the
children as representing the king as parens patriae. In Wellensky v. Wellensky, (1927) 32 RR 15, Lord Eldon expressed
similar views.
4 Mayne, Hindu Law and Usage 11th, Edn., 285 by N: Chandrasekhara Aiyar 1957.
5 Strange, Hindu Law 4th Edn., 1804.
6 Principles and Precedents of Hindu Law, at 25.
7 (1914) ILR 38 Mad 807 (819) (PC).
1 See Surayya v. Subbamma, (1927) 53 MLJ 677 [LNIND 1927 MAD 213]; Thayammal v. Kuppanana Koundan, (1914)
ILR 38 Mad 1125. Also see Macnaughten, supra Principles and Precedents of Hindu law, at p. 25 where he gives a
long list of guardians.
2 (1978) 2 Cal LR 583 (597).
3 AIR 1931 Mad 597 [LNIND 1930 MAD 256].
4 AIR 1940 Mad 33 [LNIND 1939 MAD 270](35). The Court came to this conclusion after expressing some conflicting
opinion. For instance, see Seetharamanna v. Appiah, (1926) ILR 49 Mad 768; Surayya v. Subbamma, (1927) 53 MLJ
677 [LNIND 1927 MAD 213] l; Ranganaiki Ammal v. Ramanjuja Aiyangar, (1912) ILR 35 Mad 728. Also see Mst.
Bhikoo Kuer v. Chpinla Koer, (1897) 2 CWN 191.
5 AIR 1946 Cal 272 (277-78).
1 Trevelyan, Law Relating to Minors, 5th Rev. Edn., 1916, 49.
2 There is long line of cases taking this view. Some of them may be noted: Queen v. Nisbet, Perry OC 103; In re, Callor
Nariusawamy, Mayne’s PC s. 361; In Hanumanth Bose, 1 Hyde III; Reade v. Krishna, (1996) ILR 9 Mad 391; Audiappa
v. Nallendrani, (1915) ILR 39 Mad 473. Father’s right is a civil right and can be enforced as such: Huro Sundaree v. Joy
Doorga, (1870) 4 ILR App 36; In the matter of the petition of (in re) Kashi Chander Sen, ILR (1881) 8 Cal 266 ; Sathi v.
Ramandi Pandaram, (1920) 42 Mad 397; Atchayya v. Kosaraju Narahari, AIR 1929 Mad 81 ; Abdul Aziz Khan v. Nanhe
Khan, (1927) ILR 49 All 332; Sukhdeo Rai v. Ram Chandar Rai, ILR (1924) 46 All 706 ; Parmeshwari v. Empress, 2
CLR 6; Harbans Rai v. Mst. Biro, AIR 1926 Lah 393 ; Manmohani v. Hari Prasa, 5 PLR 415; Ghulam Hussain v. Idu,
Page 9 of 9
AIR 1937 Lah 481 ; Mst. Basant Kaur v. Gian Singh, AIR 1939 Lah 359 . Also see Shanti Devi v. Gian Chand, AIR
1956 Punj 234 .
3 Chandrakant v. Hira Lal, AIR 1954 MB 43 (44). Also see Jamuna Prasad v. Mst. Panna, AIR 1960 All 285 .
4 See Besant v. Narananiah, (1914) ILR 38 Mad 807 (819) (PC).
5 See cases referred in supra note 4, p. 199.
6 Putlabai v. Mahadu, (1908) ILR 33 Bom 107; Kaulesra v. Jorai Kasaundhan, (1905) ILR 28 All 233.
7 Mohammed v. Radhibai, 47 IC 817; Shamsing v. Santabai, (1901) ILR 25 Bom 551; Hari Chand v. Ghulam Rasul,
(1932) ILR 14 Lah 176; Muchoo v. Arzoon Sahoo, (1866) 5 WR 235; Audiappa v. Nallendrani, (1915) ILR 39 Mad 473.
8 Subramania v. Ammejee, 29 IC 976; In some cases a contrary view was taken; Bai Tara v. Mohanlal Lalubhai, AIR
1922 Bom 405 ; Bindo v. Sham Lal, (1906) ILR 29 All 210; Munnibai v. Dhansush, AIR 1959 Bom 243 [LNIND 1958
BOM 94]. Also see the Hindu Widow’s Remarriage Act, 1856.
9 Kalidas v. Subbamma, (1883) ILR 7 Mad 29; Sukhdeo Rai v. Ram Chandar Rai, (1924) ILR 46 All 706. In some cases
contrary view has also been taken; Baldeo Prasad v. Dhannaram, AIR 1927 Nag 314 ; Atchayya v. Kosaraju Narahari,
AIR 1929 Mad 81 .
1 Albrecht v. Bathee Jellamma, (1912) 22 MLJ 247 [LNIND 1911 MAD 328]; Alagappa Ayyangar v. Mangathai
Ammangar, (1916) ILR 40 Mad 672; Deba Nand v. Anandamani, (1920) ILR 43 All 213.
2 Budhkaran Chaukhani v. Thakur Prasad, ILR (1942) 2 Cal 318 ; Banku Behary, AIR 1943 Cal 203 .
3 Chennappa v. Onkarappa, AIR 1940 Mad 33 [LNIND 1939 MAD 270](35); Ethilavul Ammal v. Pethakkal, AIR 1950
Mad 390 [LNIND 1949 MAD 297]; Chandu Lal v. Mukadi, AIR 1925 Lah 503 ; Kristo Kissor Neoghy v. Kader Moye
Dossee, (1878) 2 CLR 583; Subbarami Reddy v. Chenchuraghava Reddy, AIR 1945 Mad 327 [LNIND 1944 MAD 221];
Kaulesra v. Jorai Kasundhan, (1905) ILR 28 All 233.
4 Lakshmibai v. Shridhar Vasudev Take, ILR (1878) 3 Bom 1 ; Krishnamurthi v. Krishnamurthi, AIR 1927 PC 139 ; Triaya
v. Ramaswami, (1913) 19 IC 362.
5 Albrecht v. Bathee Jellamma, (1912) 22 MLJ 247 [LNIND 1911 MAD 328].
1 Section 6 of the Act.
1 See Vasudevan v. Viswalakshmi, AIR 1959 Ker 403 [LNIND 1958 KER 256], where despite the proviso to clause (a)
the mother was not given custody of a child aged two and a half years.
2 Sub-section (1) of section 25 runs: “If a ward leaves or is removed from the custody of a guardian of his person, the
court if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an
order for his return.........” See the following cases as instances that only a guardian can apply under section 25: Mst.
Chandra Kaur v. Chotey Lal, AIR 1925 Oudh 282 ; Rattan Amol Singh v. Kamaljit Kaur, AIR 1961 Punj 51 ; In re, Kamal
Rudra, (1949) 2 Cal 374; In re, Lovejoy Patell, AIR 1944 Cal 433 ; Kumaraswami v. Rajammal, AIR 1957 Mad 563
[LNIND 1956 MAD 155].
1 For instance, in an old English case, In re, Plomley, 47 LT (NS) 284, Vice-Chancellor Bacon said: “This court, whatever
be its authority or jurisdiction has no right to interfere with the sacred rights of a father over his children.” In a series of
cases this position was taken by the courts. The principle of paramountcy of paternal right was firmly established at the
common law in section 19 of the Guardians and Wards Act, 1890.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
1. Short title and extent.—
(1) This Act may be called the Hindu Minority and Guardianship Act, 1956.
(2) It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus
domiciled in the territories to which this Act extends who are outside the said territories.
Comments
1. Scope
Generally section one of a statute lays down the title and territorial extent of a statute. Sometimes the first
section also lays down the date of commencement of the statute. The present section provides for:
(a) the tittle of the Act, and

(b) the territorial extent of the Act.
It does not lay down the date of commencement of the statute.

2. Title
The statute’s title the Hindu Minority and Guardianship Actclearly indicates that it deals with the law of
guardianship and minority among Hindus. However, the statute is not a complete code on the subject. Section
2 of the Act lays down that “The provision of this Act shall be in addition to, and not, save as hereinafter
expressly provided, in derogation of, the Guardians and Wards Act, 1890.” In other words this Act is
supplemental to the Guardians and Wards Act, 1890.
The Act codifies and reforms the old Hindu law of guardianship and minority.
3. Territorial Extent
Page 2 of 2
The Act extends to all parts of the Indian Union, except the State of Jammu and Kashmir. The State of Jammu
and Kashmir has adopted the Act by Jammu and Kashmir Act, 7 of 1957.
Originally, the Act did not extend to the erstwhile Portuguese and French Pockets of Dadra and Nagar Haveli
and Pondicherry. But with effect from October 1, 1968 the Act has been extended to Pondicherry1 and with
effect from July 1, 1965 to Dadra and Nagar Haveli.2
However, in Pondicherry, the Act does not apply to those who have opted for the local Franco-Indian Law.
These people are known as Renoncants.1
The Act has not yet been extended to the Union territory of Goa, Daman and Diu.
The Act also does not apply to the Scheduled Tribes.2

4. Extra-territorial Extent of the Act
The Act applies to all those Hindus who are abroad but domiciled in India. To the Hindus who are domiciled in
Jammu and Kashmir and are outside India, the Jammu and Kashmir statute would apply.
The term domiciled has not been defined. It is submitted that it will leave the same meaning as is given to it
under Private International Law.
5. Commencement
The Act does not lay down any date from which the Act would come into force. In view of this the date of
commencement of the Act is August 25, 1956, i.e., the date on which the Act received the assent of the
President.3
In respect of application of the Act to any one of the Scheduled Tribes, it will apply from the date, a notification
to the effect is issued.
1 Pondicherry Regulation XXVI of 1968.

2 Dadra and Nagar Haveli Regulation, VI of 1963.
1 Dadra and Nagar Haveli Regulation, VI of 1963.
2 Section 3.
3 Section 5 of the General Clauses Act.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
2. Act to be supplemental to Act 8 of 1890.—

The provision of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation
of, the Guardian and Wards Act, 1890 (8 of 1890).
Comments
1. Scope
It is evident from the shortness of the Act and cursory look at its provisions that the Act is not a complete code.
It does not provide for all matters. The fact of the matter is that it reforms and codifies certain substantive
provisions of Hindu law and leaves rest to be taken care of by the existing statute, i.e., the Guardians and
Wards Act of 1890 which applies to all people in India including Hindus. This section lays down:
A. The provisions of the Act are supplemental to the provisions of the Guardians and Wards Act s.
B. The provisions of the Act are not in derogation to the provisions of the Guardians and Wards Act.
C. Obviously, where it is laid down expressly in the Act, the provisions of the Act will not only override the
provisions of the Guardians and Wards Act but also all other laws.
2. Act is Supplemental to the Guardians and Wards Act
The section lays down that the provision of this Act shall be in addition to, and not in derogation of the
Guardians and Wards Act. Of course, the section also contains the words, “save as hereinafter expressly
provided” which means that certain provisions of the Act are expressly made to override the provisions of any
law or statute, including the Guardians and Wards Act, then this will be so. In short, the Guardians and Wards
Act is still law and that law is supplemented by the provisions of the Act unless any provision of the Act, 1956 is
given overriding effect.
The question came before the Madras High Court in V.N. Sawaminathan v. Angayarkanni Ammal,1the court
Page 2 of 3
said that section 4(a) of the Hindu Minority and Guardianship Act is in no way inconsistent with section 3 of the
Indian Majority Act. The object of the former Act is merely to replace the personal law governing a Hindu in
respect of the age of minority. The purpose of the Act is not to supersede the provisions of the Guardians and
Wards Act, 1890, but to supplement it. The definition of minor in section 4(a) will govern only the application of
the other provisions of the Act, which do not include appointment of a guardian of a person of a minor. For
purpose of appointment of a court guardian, one has, therefore, to look to the provisions of the Guardians and
Wards Act, and the definition of a minor in the Indian Majority Act.
The effect of sections 4(a) and 5(b) of the Hindu Minority and Guardianship Act is not to override the first part of
section 3 of the Majority Act. The overriding effect will come only in case of inconsistency between the
provisions of the Hindu Minority and Guardianship Act and any other law in force. But since there is no such
inconsistency between section 4(a) of the Hindu Minority and Guardianship Act and the first part of section 3 of
the Majority Act, the latter provision continues to govern a Hindu minor, for whose person a court guardian has
been appointed. Further section 4(a) of the Hindu Minority and Guardianship Act indicates that the definition of
a minor made therein is only for the purpose of that act. The court added:
The purpose of the Act is not to supersede the provisions of the Guardians and Wards Act but to supplement it.
It follows, therefore, that to the extent the first part of section 3 of the Indian Majority Act provides that where a
court guardian has been appointed for the person of a minor he shall be deemed to be a minor until he shall
have completed the age of 21 years, it is not inconsistent with the definition of a minor under section 4(a) of the
Hindu Minority and Guardianship Act. If the Act itself had provided for a complete code including provisions for
appointment of a guardian, it would have been a different matter. The definition in section 4(a) will therefore
govern only the application of the other provisions of the Act, which do not include appointment of a guardian of
a person of a minor.
In this case a minor had applied to the court for discharging the guardians on attaining the age of 18 years on
the plea that since under the Hindu Minority and Guardianship Act the minority is terminated on attaining the
age of 18 years and, therefore, he had become a major and the provision of the Indian Majority Act which
extends the age of minority to 21 years is not applicable being inconsistent with the former. The court held that
there was no inconsistency and hence the minor could not apply for the discharge of the guardians on attaining
the age of eighteen years.
The question again came for consideration in T.V. Duraiswamy v. E. Balasubramanian,1where inconsistency
between the provisions of the Hindu Minority and Guardianship Act and the Guardians and Wards Act was
found. Section 9(5) dealing with the powers of a guardian appointed by Will states that the guardian has the
right to act as the minor’s father or mother and to exercise all the rights of a natural guardian under the Act “to
such extent and subject to such restrictions, if any, as are specified in the Act and in the Will. One of the
restrictions imposed on a natural guardian in respect of sale of minor’s property is contained in section 8(2)
which requires the previous permission of the court for selling the minor’s property. The testamentary guardian,
therefore, could not sell the property without prior sanction of the court. This is so even though section 28 of the
Guardians and Wards Act authorised the testamentary guardian to sell the property, as under section 5(b) of
the Act any other law in force immediately before the commencement of the Act shall cease to have effect in so
far as it is inconsistent with any of the provisions contained in the Hindu Minority and Guardianship Act. Section
28 of the Guardians and Wards Act in so far as it authorises testamentary guardian an unlimited power of sale
is inconsistent with the provisions of section 9(5) read with section 8. On the clear language used in section
5(b) therefore, section 28 will cease to have any effect in so far as the power of the guardian to dispose of the
minor’s property was concerned without prior sanction of the court. It was held that the testamentary guardian
of a Hindu minor has no power to sell minor’s property without prior sanction of the Court.
In Kusa Parida v. Baisnab Malik,2the question came for consideration before the Orissa High Court. The court
said that provisions of the Hindu Minority and Guardianship Act and the Guardians and Wards Act are
complementary. In case of repugnancy, the provisions of the former Act would prevail. Under the Hindu law as
well as under the Act of 1956, the natural guardian of the minor after the death of the father is the mother and
unless she is unfit she must be appointed as the guardian. She can be appointed as the guardian of the minor
even though the mother has remarried, as it is permissible under the Hindu law. A Hindu widow by the mere
fact of her remarriage, does not lose her right of guardianship in any custom of the caste to which she belongs.
Under the Hindu Widows’ Remarriage Act, 1856, remarriage is permissible. The minor’s welfare is the
paramount consideration for the appointment of a guardian. If it is found that the appointment of the natural
guardian as the guardian of the minor would be detrimental to the welfare of the minor, the natural guardian
would not be appointed as guardian. Such as the position of law prior to the passing of the Act of 1956, and it
Page 3 of 3
has not in any way been affected by the passing of the Act of 1956. Section 13 gives a clear statutory
recognition to his pre-existing position of law. There is no repugnancy in this regard between the provisions
made under sections 7 and 17 of the Act of 1890 and section 13 of the Act of 1956. If at all there is any
repugnancy, section 13 would prevail.
The courts have held the following.
(a) Section 13 of the Hindu Minority and Guardianship Act is not inconsistent with section 17 of the
Guardians and Wards Act.1
(b) Section 19(b) of Guardians and Wards Act is no longer as rigorous as its language indicates and its
rigour has been whittled down by section 13, the Hindu Minority and Guardianship Act which says that
welfare of the child is paramount consideration.2
(c) Since there is an inconsistency between section 28 of the Guardians and Wards Act and section 9(5)
of the Hindu Minority and Guardianship Act, the latter will prevail over the former.3
3. Guardians and Wards Act
The Guardians and Wards Act, 1890 is a statute applicable in reference to all children to whatever community
they may belong and in this sense it is statute uniformly applicable to all minors in India in regard to
appointment or declaration of guardian by the court of the person and property of the minor. It also deals with
the powers, rights and obligations of the guardians appointed by the court. In fact, it is the only statute under
which guardians can be appointed by the court of any child, irrespective of the fact to which caste or community
he belongs. Third part of this work is devoted to a detailed discussion of the provisions of the Guardians and
Wards Act, 1890.
1 AIR 1969 Mad 11 .

1 AIR 1977 Mad 304 [LNIND 1976 MAD 254].
2 AIR 1966 Ori 60 [LNIND 1965 ORI 48].
1 Kusa Parida v. Baisnab Malik, AIR 1966 Ori 60 [LNIND 1965 ORI 48].
2 R.A. Singh v. Kamaljeet, AIR 1961 Punj 51 .
3 Durainswamy v. Balasubramanian, AIR 1977 Mad 305 .
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
3. Application of the Act.—
(1) This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim,
Christian, Parsi or Jew by religion unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.
Explanation.— The following persons are Hindus, Buddhists, Jainas, or Sikhs by religion, as
the case may be:—
(i) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhist, Jainas or
Sikhs by religion;
(ii) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by
religion and who is brought up as a member of the tribe, community, group or family to which
such parent belongs or belonged; and
(iii) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the
members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution
unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any provision of this Act shall be construed as if it included a person who,
though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the
provisions contained in this section.
Page 2 of 2
Comments
1. Scope
Since the Act applies to Hindus this section describes the persons who are Hindus. This matter we have
discussed in detail in our commentary on section 2 of the Hindu Adoptions and Maintenance Act which contains
identical provisions, reference may please be made to the same.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
4. Definitions.—In this Act,—
(a) “minor” means a person who has not completed the age of eighteen years;
(b) “guardian” means a person having the care of the person of a minor or of his property or of both his
person and property, and includes—
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
(c) “natural guardian” means any of the guardians mentioned in section 6.
Comments
1. Scope
This section contains three definitions, viz., of minor guardian, and natural guardian. In fact it contains the
definition of only two main terms of law of guardianship, i.e., minor and guardian. Clause (a) defines the term
“minor” and clause (b) defines the term “guardian”, and then says that the term “guardian” includes a natural
guardian, testamentary guardian, certificated guardian and guardian under the Court of Wards Act. Then clause
(c) defines the term “natural guardian” with reference to section 6 of the Act which states who are the natural
guardians of a child. The section does not define the other three types of guardians stated in sub-clauses (ii),
(iii) and (iv) of clause (b).
2. Clause (a): Minor
The term minor has been defined in clause (1) of section 4 of the Guardians and Wards Act as “minor means a
person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his
majority”. Under section 3 of the Indian Majority Act:1
Page 2 of 16
Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he
shall have completed his age of eighteen years and not before.
Then the main clause of section 3 runs as under:
Subject as aforesaid every minor of whose person or property or both, a guardian, other than a guardian for a suit
within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any
Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the
superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall,
notwithstanding anything contained in the Indian Succession Act, 1865 (X of 1865) or in any other enactment, be
deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.
The words “subject to as aforesaid” relate to section 2 of the Act which lays down that in the three matters
specified in clauses (a), (b) and (c) of the section, the age of majority will not be governed by the Act.1
Clause (a) simply defines “minor” as “a person who has not completed the age of eighteen years”. Obviously
this will include both male and female persons.
It may be noticed that where a certificated guardian of a minor is appointed under the Guardians and Wards
Act, the age of minority is extended by three years, that is to say, such a child continues to be a minor till he or
she completes the age of twenty-one years. As we have seen in our commentary on section 2, our courts have
held that there is no conflict between clause (a) of the Act and section 3 of the Indian Majority Act, and if a
guardian has been appointed of a Hindu child, he or she would attain the age of majority on the completion of
the age of twenty-one years.2
3. Child
A minor is a child. A person ordinarily ceases to be a child on his attaining the age of majority. The term “child”
denotes a person who, on account of his young age, is considered to be of immature intellect and imperfect
discretion and is, therefore, unable to comprehend the consequences of his own act. Such a person is usually
called a minor. In that sense childhood is contrasted with adulthood. On completion of certain period of his life a
person becomes an adult or a major. Attainment of majority or adulthood usually signifies that a person has
attained full legal capacity. But mere attainment of majority does not mean that he can necessarily do all acts.
For certain acts, law may lay down a higher age. For instance, in many systems of law just completion of the
age of majority does not confer on him a right to cast his vote or be a candidate in general election.1 It also
does not mean that before he attains the age of majority he is absolutely incapable of doing anything. In many
systems of law a person has capacity to marry before the attainment of age of majority.2 Further, it does not
mean that a person below the age of majority is protected from the consequences of all his acts. A person may
not be capable of forming a criminal intention upto a certain age (usually if he is below seven) and to that extent
law protects him, but after that age he may be liable for his acts and may be punished. A child of any age is not
protected from torts, unless a wrongful intention is an essential ingredient of the wrong. The term ‘child’ is also
used in several welfare legislations which accord protection to and confer benefit on the young age, but that
age does not always coincide with age of minority.
The term “child” is used in various senses. It is mainly used in three senses:
A. A term indicating capacity.

B. A term denoting relationship.
C. A term of special protection under social welfare legislations.
Here, in this work we are not concerned with the term “child” used in social welfare statutes conferring special
protection.3 We are here concerned with the term in the first two senses.
It should be noticed that in whatever sense we use the term “child”, we are essentially dealing with a minor, i.e.,
a person below the age of eighteen years, though in some cases the age of child upto which he is provided
protection may be less than eighteen years.
4. Childhood and Minority: Terms Indicating Capacity
Adulthood or age of majority is fixed in relation to the age of a person: on completion of certain age a person
Page 3 of 16
becomes a major or adult. Before the completion of that age such a person is known as a minor. On the
completion of age of majority a person attains legal capacity. But in respect of certain matters he may attain
capacity a little earlier, just as for the purpose of marriage. In respect of other matters, he may attain capacity
still later, just as for the exercise of his franchise.1 For having mens rea in criminal law, the age may yet be
different.
A person below the age of majority is known as ‘minor’ under Indian law. Roman law used two terms ‘infant’
and ‘minor’ and the English law and Indian law derived these terms from Roman law. Under Roman law, the
term ‘infant’ is, in its etymological sense, applied to a person under the age of seven years. The term literally
means, ‘unable to speak’ and in late Roman law was fixed at seven years. An infant has no contractual
capacity. Under Roman law ‘minor’ is a person who has not completed the twenty-fifth year of his life, but has
completed the age of fourteen if male or twelve if female.1
Under Hindu law, infancy was divided into two periods:
(i) from the birth to completion of eighth year, and

(ii) from the eighth year to the completion of fifteenth or sixteenth year.2
A person below the age of eight years for all legal purposes was considered to be a child in its mother’s womb.
After the completion of the eighth year and before the completion of fifteenth or sixteenth year, he was
considered to be intellectually immature and, therefore, incapable of entering into any legal transaction.3
In Hindu law there has been a difference of opinion whether majority is attained at the completion of fifteenth
year or sixteenth year. The Dayabhaga,4 and some other commentaries5 take the view that it is the completion
of fifteenth year, while the Bombay school,6 the Banaras school,7 and the Mithila school take the view that it is
the completion of sixteenth year.8
The rules of majority under Hindu law were to a great extent modified by the Indian Majority Act, 1875. The
position under the Indian law in respect of all children is as follows:
(i) The Act1 does not affect the capacity of a Hindu or Mohammedan in the matter of marriage,2 dower,
divorce and adoption.3
(ii) A person in respect of whose person or property a guardian has been appointed by a Court of Justice4
or a person who is under the jurisdiction of Court of Wards5 attains majority on the completion of
twenty-first year, and
(iii) In all other cases a person is deemed to attain the age of majority on the completion of eighteenth
year.6
Under Indian law a minor has absolutely no capacity to contract.7

5. Childhood: Term Indicating Relationship
The term “childhood” as denoting relationship is very important in guardianship and custody proceedings. It is
basis of court’s jurisdiction in guardian and custody proceedings.8 In this sense, the guardian court may be
called upon to adjudicate in respect of the following children:
A. Legitimate children:
(a) Natural born, and
(b) Adopted children.
B. Illegitimate children.
The question of guardianship and custody of all the above children can come before the Guardian Court.
In Hindu law, the institution of sonship was considered to be one of the most important institutions.9 Son is
called ‘putra’ in Sanskrit. The word putra is derived from the word ‘put’ which means hell and therefore son is
the one who redeems his father from the hell.1 Sonship naturally acquired great importance in Hindu law. Since
every Hindu must have a son, our sages laid down various modes of having sons, in case one failed to have a
natural son. This seems to be the reason why our sages recognized a few sons who were not born within the
Page 4 of 16
lawful wedlock. Hindu sages recognized as many as thirteen types of sons, though some of them were given an
inferior status. Manu has mentioned twelve kinds of sons, six of them are, according to him, kinsmen as well as
heirs, and the other six are merely kinsmen. They are:
“(1) The AURASA, ‘body-born’ (2) the KHETRAJA, ‘soil-born’, (3) the DATTA, ‘given’ (adopted), (4) The KRITRIMA,
‘appointed’, (5) The APAVINDHA, ‘cast off ‘, and (6) The GUDHOTPANNA, ‘secretly born’— these are heirs and
kinsmen”.
“(1) The KANINA, ‘maiden born’ (2) the SAHODHA, ‘received along with the wife’ (3) the SVAYAM-DATTA, ‘self-
offered’, and, (6) the SHAUDRA, ‘Sudra born’—these six are only kinsmen, not heirs.2
It is not that our sages encouraged people to have secondary sons,3 but in case one had such sons they were
accorded some recognition. What is remarkable about their position is that all of them were treated as
legitimate sons, despite the fact the majority of them have no blood relationship to their father and some of
them were the off-spring of mother’s illicit connection with strangers.4
In the modern Hindu law a great majority of them have become obsolete. The Modern Hindu law recognizes
only two kinds of sons, aurasa and dattaka. Another type of secondary son has now come into existence by
virtue of the Hindu Marriage Act, 1955. The Act purports to confer status of legitimacy on sons of void and
voidable marriages which are declared void or annulled, but they are entitled to succeed to the property of their
parents alone.5
Thus, in Hindu law the word ‘son’ has always denoted a very wide meaning, it does not necessarily mean the
child of the marriage of the petitioner and the respondent. In view of this it should not be difficult to give a wide
interpretation to the word ‘children’ under section 26 of the Hindu Marriage Act, 1955.
Further, in our submission our sages considered the question of custody, maintenance and education of
children not from the point of view of legitimacy, but from the point of view of responsibility. Who is responsible
for them? That this was the criterion adopted by our sages becomes crystal clear if we look at the Hindu law of
maintenance. The person responsible for the birth of the child must provide maintenance for it; whether the
child is legitimate or illegitimate is immaterial. It was natural for our sages to devote themselves very elaborately
to the law of maintenance.1
Such was the importance attached to the maintenance of certain persons by Hindu law that even gifts, which
were considered meritorious acts, were prohibited if that rendered the dependents destitute. In the words of
Brihaspati: “A man may give what remains after the food and clothing of his family; the giver of more (who
leaves his family naked and unfed) may taste honey at first but afterwards find it poison.”2 Other sages also
enjoin the same.3
The duty of maintenance extended not merely towards the legitimate children, but also to illegitimate children.
The illegitimate son of a concubine,4dasi and avarudha,1 (permanently and exclusively kept concubine) were
entitled to maintenance from very early times.2
When these texts came for interpretation our courts clearly laid down that it is the obligation of the father to
maintain his legitimate as well illegitimate children. The latter are to be maintained even if born of an adulterous
or casual intercourse.3 Under the Mitakshara school it has been held that an illegitimate son can claim
maintenance for his life and that it can be secured as a charge on the family estate.4 If the father is a member
of the joint family, the illegitimate son is entitled to maintenance both before and after the death of his father.5 If
the father has separate property, then also the illegitimate son is entitled to maintenance from the separate
estate of his father, even after the death of his putative father.6 The illegitimate son is entitled not merely to
compassionate maintenance but adequate maintenance, i.e., in accordance with the comfort and mode of life
he is used to.7 Under the Dayabhaga school, the obligation to maintain an illegitimate child extends only during
the minority of the son or till the marriage of the daughter.8
Hindu law never considered an illegitimate child a filius nullius. It does not mean that Hindu law did not
distinguish between illegitimate children and legitimate children. The aurasa children, i.e., children born within a
lawful wedlock have been considered to be the best children. Undoubtedly, son’s importance was great, but no
one was more important and more prized for than an aurasa son.9 Other sons were disapproved from very
beginning. A hymn in Rig Ved runs:
“O agni, no son is he who springs from others”1

Page 5 of 16
Strictly speaking, according to sages, procreation as well as birth in lawful wedlock was necessary to constitute
a child, an aurasa child.2 The putrikaputra was next in importance.3 Not much importance was attached to the
secondary sons.4 The secondary sons were to be maintained. It was very exceptionally that they inherited the
property of their father.5
Adhering to the principle of responsibility, Hindu law never considered illegitimate children as filius nullius.
Illegitimate children were divided under two heads: (i) Dasiputra, i.e., born of a permanently and exclusively
kept concubine (avurudha dasi) and (ii) other illegitimate children, born of casual connection or from adulterous
or incestuous relationship. It was not that adultery and incest were not offences—they were not merely criminal
offences but also sins of great magnitude,6 but the principle of responsibility has superior claims. He might be
punished for adultery or incest, but he was saddled with the responsibility of maintaining all his children for
whose birth he was responsible.7
The obligation of the putative father towards a dasiputra was still greater, dasiputra was a member of his
father’s joint family and was entitled to maintenance as such.8 Among the Sudras he was entitled to a share on
partition or inheritance in certain cases.9 In that sense both the putative father and the legitimate son were
recognised in Hindu law.
The modern Hindu law equalizes the position of illegitimate sons in all classes in the matter of inheritance.10
Now an illegitimate son of a Sudra is also not entitled to any share in the inheritance of his father in case of
intestate succession,10 though the putative father in all the four classes may gift away his entire property to
him.1 On the other hand it lays down that both the parents have an obligation to maintain their legitimate and
illegitimate children.2
The position of an illegitimate daughter has not been so clearly stated by the sages. The Bombay and Madras
High Courts, noting the fact that the text employs the word sudraputra (i.e., in the masculine gender), have held
that illegitimate daughters are not entitled to any maintenance.3 But in Vellaiyappa Chetty v. Natarajan,4 their
Lordships said that the illegitimate daughter was as much a member of the joint family as an illegitimate son
and therefore there was no reason to deny her the right of maintenance.5
The modern Hindu law clearly recognizes the obligation of parents to maintain their legitimate and illegitimate
children.6
Under the Guardians and Wards Act, only a guardian can apply for the custody of the child,i.e., the child and
the person claiming custody must stand in the relationship of ward and guardian.7 The Act nowhere uses the
word ‘child’ or ‘children’. Section 25 lays down that if the ward leaves, or is removed from the custody of the
guardian, the latter may file a petition for the restoration of custody. The restoration of custody would be
allowed only if the court considers it to be for the welfare of the ward. This section has led to some difficulties of
interpretation. The courts have, as we would see, tried to give a very wide interpretation to the word ‘Guardian’
and have tried to include all types of guardians, including de facto guardians within the scope. The difficulties
arise in those cases where a person has the custody or is entitled to custody, but someone else is the guardian.
If such a person is deprived of custody he cannot claim it under section 25 of the Act, as he is not a guardian.
Such a person must first apply for guardianship and when he is appointed guardian, then alone he can apply for
custody. In short, the bare question of custody cannot be agitated. Both under Hindu law father is the natural
guardian and the mother is not a guardian so long as the father is alive. This means that mother cannot claim
custody in guardianship proceedings unless she is first appointed guardian.8 The difficulties are further
increased by another provision of the Act which lays down that a father cannot be deprived of guardianship
unless he is found unfit.9
However, the rigour of the provision of section 19, the Guardian and Wards Act has been whittled down by the
court in holding that welfare of the child is the paramount consideration. Further, in regard to Hindu children
section 13 of the Hindu Minority and Guardianship Act also lays down that welfare of children will be the
paramount consideration. This, in our submission, will positively help our Courts in undoing the rigour of section
19, the Guardians And Wards Act.
6. Clause (b): Guardians
Guardianship was originally conceived as an extension of paternal power. In modern law it essentially implies
the notion of protection. However, the notion that guardians exist for the protection of the child and for its
welfare is of much later development. It is with this notion that the idea of parent being considered as natural
Page 6 of 16
guardian emerged and this idea led to the concept that welfare of the child being paramount consideration, in
the welfare of the child a natural guardian, too, could be replaced.
As we have seen in our comments on the Preamble of the Act, ancient texts on guardianship are few. Like
English law, Hindu law vested supreme guardianship of all children within the realm of the King as parens
partiae.1 Of necessity, the guardianship was delegated by the King on the relations of the minor.2 Father’s
uppermost claim over children was recognized.3 Mother’s claim was recognized only after the father.4
Hindu law based as it was on a system of duties, recognized de facto guardians. If a person has assumed the
charge of the person or property of a minor and has, in that capacity, done some acts, those acts were
recognized provided they were done within the scope of the authority of a guardian: the acts of the guardian
were always judged on the touchstone of legal necessity or interest of the minor. Since rights or powers of
guardians were never stressed, Hindu law did not make a clear distinction between de jure and de facto
guardians. All guardians have duties, and if they discharged their duties properly, they were protected; if not
they were liable both to the minor and to the third person whose interest was affected by any transaction
entered into by the guardian.5
Clause (b) defines the guardian as “a person having the care of the person of a minor or of his property or both
of his person and property,” and then last four of them viz., natural guardian, certificated guardian and guardian
under Court of Wards.6The main definition of guardian contained in clause (2) of section 4 of the Guardians
and Wards Act. The clause talks of the following three types of guardians:
A. Natural Guardians,
B. Testamentary Guardians,
C. Certificated Guardians, and
D. Guardians under the Court of Wards Act.
The Act does not directly mention two other types of guardians which have existed in Hindu law. These
guardians would be covered by the definition contained in the clause. They are:
I. De facto guardians.
II. Guardians by affinity.
The Chartered High Courts have also extraordinary jurisdiction to appoint guardians and custodians of children
within its jurisdiction. Some of the non-chartered High Courts also have similar powers under the statutes
creating them.
Under the Code of Civil Procedure, guardians in litigation can also be appointed by the court.1
Under the lunacy laws guardians can be appointed of lunatics and idiots, irrespective of the fact whether they
are major or minor.
7. Clause (c): Natural Guardians
Strictly speaking the Shastric Hindu law did not speak of natural guardians. Supreme guardianship was vested
in the King and the matter was left there. On the basis of some texts mentioning father and other relations,2 as
guardians the idea of natural guardianship of parents—first of the father, then of the mother3 was developed.
It seems that the term ‘natural guardian’ came into vogue during the period of British administration of justice in
India. In the early period, certain jurists4 and Judges5 on the basis of one or two texts came to the conclusion
that Hindu law conferred natural guardianship on the father, then on the mother, then on the relations of the
child, first on the paternal side and then on the maternal side. When texts were examined more closely, it was
realised that only person, if at all, that could be called a natural guardian was the father. Even mother did not
enjoy that position. It was only by usage and custom that natural guardianship of mother was recognized.6 No
other person could be the natural guardian.7
Before 1956, as between the two parents, the father’s position was superior. Not merely that the mother has no
say during his life-time, but father could also exclude her from guardianship even after his death by appointing
someone else as guardian.1 The father as karta was also the guardian of his minor son’s share in the undivided
joint family property.
Page 7 of 16
Although the mother was considered to be the natural guardian of her illegitimate children and, after her,
guardianship vested with father, there were some doubts as to who had superior claim of custody.2 The claim
of the putative father born of a casual connection was ignored,3 but in respect of dasiputra the position was not
so clear.4 The Allahabad High Court preferred the putative father over the mother who was leading an immoral
life.5 If both were leading an immoral life, the claim of mother was preferred.6
The husband was considered to be the natural guardian of his minor wife,7 though he was not given custody of
her before attained puberty.8
The guardianship of the adopted children first belongs to the adoptive father and then to the adoptive mother.9
Step-parents have no claim to guardianship.10
Hindu law thus recognizes three persons as natural guardians of minor children: father, mother and husband.
The guardian by affinity is also sometimes called natural guardian.
Father—“Father is the natural guardian of his minor legitimate children, sons and daughters”. Section 19 of the
Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his
minor children unless he is found unfit. The effect of this provision has now been considerably whittled down by
judicial decisions and by section 13 of thehindu Minority and Guardianship Act which lays down that welfare of
the minor is of paramount consideration and father’s right of guardianship is subordinate to the welfare of the
child.11 Before 1956, the father could prevent mother from assuming the guardianship of her minor children
even after his death by appointing a testamentary guardian. This cannot be done now. The Act lays down that if
the father appoints a testamentary guardian and mother survives him, the appointment of testamentary
guardian will be ineffective so long as the mother is alive. If mother dies without appointing a testamentary
guardian, the father’s appointee will become the guardian. But if mother dies after appointing a testamentary
guardian, the mother’s appointee will take over the guardianship of the child and the father’s appointment will
be ineffective.1 The Act does not recognize the principle of joint guardians. The position of adopted children is
at par with natural-born children.
Recently, an argument has been advanced before our courts: suppose the father is alive but he is a non-
functioning natural guardian, can the mother, act as the natural guardian? This argument has prevailed before
the Supreme Court. Vaidyalingam, J., said that in the particular circumstances of this case ‘the mother could be
considered as the natural guardian of her minor daughter’. The particular circumstances of the case were: The
father and mother of a minor child had fallen out and the mother was living separately from the father for over
twenty years. The mother had been looking after the affairs of her minor daughter and managing her properties.
The child was all along under her protection and care.2 Thus, it seems that where the father fails to function or
refuses to function or is incapable of functioning as guardian, the mother will be able to exercise all powers and
functions of a natural guardian without being appointed as guardian by the court.3
Mother.—The mother is the natural guardian of the minor illegitimate children even if the father is alive.
However, she is the natural guardian of her minor legitimate children only if the father is dead or otherwise is
incapable of acting as a guardian. Proviso to clause (a) of section 6, the Hindu Minority and Guardianship Act
lays down that the ‘custody of a minor who has not completed the age of five shall ordinarily be with the
mother.’ Thus, mother is entitled to the custody of the child below five years, unless the welfare of the minor
requires otherwise.4
Mother’s right of guardianship is not lost on her conversion to another religion so long as she is able to provide
a congenial, comfortable and happy home.5
The position of mother’s guardianship of her adopted children is the same as that of her natural born children.
It is submitted that it would be a better proposition of law if it is laid down that parents are equal and co-ordinate
guardians of their minor children.
Step-parents are not entitled to guardianship, unless they are specifically appointed by the court.6
Husband.—In some systems of law, it is a curious development that husband is considered to be the natural
guardian of his minor wife. This was so under the old Hindu law and this is so under the modern Hindu law.
There is no direct textual authority for the proposition. The entire law has been developed from two texts, one of
Manu and the other of Narada. Manu’s text is in general terms and holds that the father protects a woman
Page 8 of 16
during her maidenhood, her husband protects her during coverture, sons protect her during widowhood: a
woman is never free.1 Narada’s text speaks of guardian of wife after the death of her husband.2 Some support
for the proposition was gathered from the principle of Hindu law that husband and wife are one in the eyes of
law. From this material the Courts propounded the proposition that the husband is the natural guardian of his
minor wife.3Section 19 of the Guardians and Wards Act, 1890, gave it statutory recognition by laying down that
the court cannot appoint the guardian of a minor wife whose husband is not unfit. However, our courts, in
interpreting this provision, have subjected it to the welfare of the minor wife. It has been held that it is ordinarily
not in the welfare of an immature minor wife to live in the custody of her husband.4
The Hindu Minority and Guardianship Act, 1956, also lays down that husband is the natural guardian of the
person and property of the minor wife. It is submitted that it is open to the courts not to give custody of the
minor wife to a husband, if they are satisfied that it will not be to the welfare of the minor wife. This is the import
of section 13 of the Act which lays down that welfare of the minor is paramount consideration.
Despite the Child Marriage Restraint (Amendment) Act, 1978, the marriages of minor girls still take place.
It is submitted that it would be in the interest of the minor wife if it is laid down that the guardianship of the
person and property of the minor wife should continue to vest in the parents and the husband will not be entitled
to have the custody of his minor wife so long as she is not physically fit to have marital intercourse.5
Step-parents are still not recognized as guardians. However, they can be appointed a guardians by the court.6
A minor cannot be the natural guardian of the property of a minor, though he may be of the person.7
8. Sub-clause (ii) Clause (b): Testamentary Guardians
Sub-clause (b) of the section says that a guardian appointed by the Will of the minor’s father or mother is
included in the term “guardian”. No one else has the power to appoint a guardian by his Will. Thus where
husband is the natural guardian of his minor wife he cannot appoint a guardian for her person or property.
A guardian appointed by the Will of the father or mother is known as testamentary guardian.
Since the Shastric law did not contemplate testamentary disposition of property, Wills were practically unknown
to Hindus. When during the British period, testamentary powers were conferred on Hindus, the testamentary
guardians also came into existence.1In the early law, testamentary power in respect of appointment of
guardians was considered to be nothing but a manifestation of paternal power and therefore father alone had
this power. Mother had no such power. By appointing a testamentary guardian the father could exclude the
mother from her natural guardianship of the children after his death. Under the Hindu Minority and
Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both
parents.2 Parents have power of testamentary appointment of guardians in all cases where they are competent
to act as natural guardian.3 The father may appoint a testamentary guardian but if mother survives him, his
testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints a
testamentary guardian, her appointee will become the testamentary guardian and father’s appointment will
continue to be ineffective. If mother does not appoint, father’s appointee will become the guardian.
It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled
to act as their natural guardian, as section 9(1) confers testamentary power on him in respect of legitimate
children. In respect of illegitimate children, section 9(4) confers such power on the mother alone.
Under the old law it seems that an appointment of guardian could be made by Will or any other valid
testamentary disposition, even if improbated and containing no disposition of property,4 but under section 9 of
the Hindu Minority and Guardianship Act, testamentary guardian can be appointed only by a Will.
Under the old as well as new law the guardian of a minor girl will cease to be the guardian of her person on her
marriages,5 and the guardianship cannot revive even if she becomes a widow while a minor.
It is necessary for the testamentary guardian to accept the guardianship. Acceptance may be express or
implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he
accepts, he cannot refuse to act or resign except with the permission of the court.
Under the old Hindu law a question came before the court: could the father, even when he was a karta, by his
will appoint a guardian of the undivided interest of his minor son in the joint family property, and the courts
Page 9 of 16
expressed divergent views.1 The present Act clarifies the position by laying down that the father has no power
to appoint a testamentary guardian of his minor sons’ interest in the joint family property.2
As we would see in subsequent pages of this work, the testamentary guardian has all the powers and rights of
a natural guardian so far as they have not been limited by the will itself.3 A testamentary guardian can be
removed the same way as any other guardian can be removed.4
9. Clause (b)(iii): Guardian Appointed by the Court: Certificated Guardian
Sub-clause (iii) of clause (b) of the section lays down that a guardian appointed or declared by the court is
included in the definition of the guardian.
Under the Shastric Hindu law, the supreme jurisdiction in respect of children was vested in the King. The King
in exercise of this power was enjoined to appoint nearest relations of the minor as guardian, preference being
given to relations on paternal side over relations on maternal side.5Now this power is exercised by courts under
the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians. But
this power is exercised sparingly. Thehindu Minority and Guardianship Act is supplementary to and not in
derogation to the Guardians and Wards Act.6
The appointment of a guardian of Hindu children is still regulated by the Guardians and Wards Act, 1890. Under
the Act jurisdiction is conferred on the District Court. The District Court may appoint or declare any person as
the guardian whenever it considers it, necessary in the welfare of the child.7 In appointing a guardian the court
takes into consideration various factors including the age, sex, wishes of the child, the wishes of the parents
and the personal law of the child.8 The welfare of children is of paramount consideration.9
The District Court has the power to appoint or declare a guardian in respect of person as well as separate
property of the minor. But it has no jurisdiction to appoint a guardian of the minor’s undivided interest in the
Mitakshara joint family property. However, if all coparceners are minors the court may appoint a guardian in
respect of entire joint family property. Such an appointment will come to an end as soon as any of them attains
majority.
The Chartered High Court has inherent jurisdiction to appoint guardians of the person as well as the property of
minor children. This power extends to the undivided interest of a minor coparcener. This is also the position
under section 12, the Hindu Minority and Guardianship Act.
The guardian appointed by the court is known as certificated guardian.
The powers of certificated guardian are controlled by the District Court under the Guardians and Wards Act,
1890. A certificated guardian cannot alienate minor’s property, except with the prior permission of the court we
would discuss this aspect of the matter in Part III of this work.
10. Clause (b)(iv): Guardians Appointed under Court of Wards Act
The various Indian provinces before independence has passed the Court of Wards Acts. Under these statutes
guardians can be appointed not only of minor but also of major land holders. Under the Act any land-holder
could apply to the Government to make and order directing that his property might be placed under the
superintendence of the Court of Wards. The Provincial Government too had power to make orders of its own
accord placing the estate of a landholder who was incapable of managing his estate or was unfit to manage his
affairs by reason of being female, or owing to some physical or mental incapacity or having been convicted of
some unbailable offence or being of extravagant habits so as likely to dissipate his property. The Guardians
and Wards Act saved the jurisdiction of the Court of Wards.1 The Act goes to the extent of laying down that
where a guardian had already been appointed by the court under the Act, such guardian would cease to
exercise any powers on the assumption by the Court of Wards of the superintendence of the property or person
of such minor.2
Today the Court of Wards Acts have become obsolete as there have hardly remained any land holders in the
sense the term was used under these statutes.
11. De facto Guardians
The Hindu Minority and Guardianship Act does not directly deal with de facto guardians. Section 11 says that
“after the commencement of this Act, no person shall be entitled to dispose off, or deal with, the property of a
Hindu minor merely on the ground of his or her being the de facto guardian of the minor”. However, in Hindu
law de facto guardian has been accorded recognition at a very early time. Hindu jurisprudence recognizes the
Page 10 of 16
principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person on
whose behalf the liability was incurred is liable, notwithstanding the fact that no authorization was made for
incurring the liability.3 It was on this principle that the de facto guardian enjoyed a unique position in Hindu law -
a position which he enjoyed in no other system of law.4
The term “de facto guardian” as such is not mentioned in any of the texts, but his existence has never been
denied in Hindu law. Kania, J., in Srimulu v. Pundarikakshayya,1 said that Hindu law tried to find a solution out
of two difficult situations: One, when a Hindu child has no legal guardian, then there would be no one who
would handle and manage his estate in law, and thus without a guardian in such a case the child would not
receive any income from his property, and, secondly a person having no title cannot be permitted to
intermeddle with the child’s estate so as to cause loss to him. The Hindu law found the solution by giving legal
status to de facto guardian.
A mere intermeddler is not a de facto guardian: an isolated or fugitive act of a person in regard to child’s
property, does not make him a de facto guardian. A de facto guardian is person who looks after the property or
person of the minor and generally acts in his interest for the time being. To make a person de facto guardian,
some continuous course of conduct is necessary on his part.2
A de facto guardian, thus, is a person who is not a legal guardian, who has no authority in law to act as such,
but, nonetheless, who himself assumes the management of property of the child as though he were a
guardian.3De facto guardianship is a concept where past acts result in a present status.4
The de facto guardian is saddled with certain responsibilities and obligations in respect to the minor and he is
also given certain powers and rights as guardian.
12. Guardians by Affinity
The notion of guardian by affinity arises out of the Hindu law concept that on marriage a woman completely
passes into the family of her adoption: she takes her husband’s gotra, his family becomes hers. She ceases to
be the member of her father’s family in all respects. A wife is under the supervision and control of her husband
or his family. If she is a minor, it has been seen, that her husband is her natural guardian. But if her husband
dies, while she is still a minor, her guardianship passes to her husband’s sapindas (agnatic relations), and on
their failure it reverts back to her father or her relations on her father’s side. Such guardians if a minor widow
are known as guardians by affinity. We have the direct authority of Narada on this:
When the husband is deceased, his kin are the guardian of his childless widow. In the disposal of property and care of
herself as well as in her maintenance they have full power. But if the husband’s family be extinct, or contains no male,
or be helpless, the kin of her own father are the guardian of the widow, if there be no relation of her husband within the
degree of sapinda.1
Parasram v. State,2 is a case where an extreme view is taken of guardianship by affinity. The father-in-law of a
minor widow forcibly removed her from her mother’s house and sold her in marriage. The court took the view
that the father-in-law being the legal guardian did not commit any offence in forcibly removing the girl from her
mother’s house, and since under a custom of the caste he could give her away in marriage for money, he did
not commit any wrong.
There is a divergence in opinion whether the guardianship by affinity comes into being by operation of law3 or
whether an appointment by a court is necessary.4 The majority of the High Courts subscribe to the former view.
But in our submission cases like Parasram v. State5 indicate that the latter view would be more in consonance
with the welfare principle.
The guardian by affinity, it seems, has the same powers as the natural guardian, though the law is not very
clear. The Hindu Minority and Guardianship Act, 1956, does not contain any provision relating to the guardian
by affinity. In our submission, the old Hindu law in this regard still prevails.
On the remarriage of a minor-widow, the guardianship by affinity terminates.

Page 11 of 16
1 Section 3.
1 Section 2 runs as under:
Nothing herein contained shall affect.
(a) the capacity of any person to act in the following matters (namely).—Marriage, Dower, Divorce, and Adoption;
(b) (b) the religion, religious rites and usages of any class of citizens of India; or
(c) (c) the capacity of any person who before this Act comes into force has attained majority under the law applicable
to him.
2 V.N. Swaminathan v. A. Ammal, AIR 1969 Mad 11 .
1 For instance, under Indian law a person cannot vote in Parliamentary election unless he has completed the age of
twenty-one and a person cannot be a candidate for upper house unless he has completed the age of thirty-five years
and for the lower house unless he has completed the age of twenty-five years (Articles 84 and 173 of the Constitution).
2 This was so under Roman Law. Under English law men and women could marry on the completion of sixteenth year.
Under Mohammedan law a person who has attained puberty can marry. Completion of fifteenth year of age raises a
presumption of puberty.
3 Under section 82, Indian Penal Code, “nothing is an offence which is done by a child under seven years of age. Further
under section 83, ‘nothing is an offence which is done by a child above seven years of age and under twelve, who has
not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.
Under the Children Act, 1960, a delinquent child (i.e., a boy under the age of sixteen and a girl under the age of
eighteen) cannot be punished by a death sentence or sentence of life imprisonment.
Under the Indian welfare statutes also the term ‘child’ has been defined differently for different purposes. Under the
Employment of Children Act, 1928, ‘young persons’ entitled to relief are divided under two heads: children under the
age of twelve and children above the age of twelve and under the age of seventeen. Under the Employment of Children
Act, 1938, employment of children under 15 years of age is prohibited in certain railway occupations. Similarly, night
employment on the rails and port of children below 17 is prohibited; the Act also prohibits employment of children under
14 years in any workshop where certain operations of hazardous nature are carried on. The Act has been replaced by
the Child Labour (Regulation and Prohibition) Act, 1986 retaining the above provisions. Under the Children (Pleading of
Labour) Act, 1933, the word ‘child’ is defined as a person under the age of fifteen.
Section 2 of the Factories Act, 1948, contains three expressions: ‘child’ is a person who has not completed the age of fifteen
years; ‘adolescent’ is a person who has completed the age of fifteen but is below the age of eighteen years; and ‘adult’
is a person who has completed the age of eighteen years. The Act defines ‘young person’ as one who is either a child
or an adolescent. A child below the age of fourteen is not allowed to work in a factory. A child above the age of fifteen
and below the age of eighteen cannot be employed to work for more than four and a half hours and cannot be
employed during the night. In 1954, the Act was amended to prohibit employment of children under 17 between the
hours of 10 P.M. and 7 A.M. Similarly, under the Mines Act, 1952, a child below the age of sixteen is not allowed to
work below the ground. No child below the age of fifteen can be employed in any mine, nor shall he be permitted at any
part of the mine which is below ground or any open cast working in which any mining operation is being carried on. The
Mines (Amendment) Act, 1983 prohibits the employment of any one below 18 years in any mine, though apprentices
and trainees of at least 16 years of age may be allowed to work under the supervision with approval of the inspector.
Under the Plantation Labour Act, 1951, a young man,i.e., a person below seventeen years of age, cannot be asked to
work for more than forty hours a week.
Article 24 of the Constitution provides that “no child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.”
The Merchant Shipping Act, 1958 prohibits employment of children under 15 in any ship except where all employees are
member of a family in a home trade ship of less than 200 ton gross, where the child is employed on nominal wages and
will be in charge of the father or other male relative. Themotor Transport Workers Act, 1961prohibits employment of
children under 15 in motor transport undertakings and requires adolescent workers to obtain certificate of fitness. Both
the statutes have been amended by the Child Labour Act, 1986 which defines child as a person under 14 years.
The Apprenticeship Act, 1961 prohibits apprenticeship or training of a child below 14 years and as to apprenticeship of other
minors requires a contract of apprenticeship between the guardian and the employer.
The Atomic Energy Act, 1962 prohibits employment of persons under 18 years of age as radiation workers, except with the
permission of competent authority. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 prohibits
employment of children under 14 in industrial premises where any process connected with the manufacture of beedis
and cigars takes place.
Under the Cinematograph Act, 1959, a child is defined as a person below the age of eighteen years and he cannot be
permitted to witness a film which is given “A” licence.
Page 12 of 16
1 See Articles 73 and 84 of the Constitution of India.

1 Under Roman law a child below the age of fourteen if male, or below the age of twelve, if female, was known as
pupillus. If a pupillus was above the age of seven and below the age of fourteen (or below the age of twelve, in case of
a female child), he could contract exclusively for his advantage but could not bind himself by a contract which involved
liability alone or reciprocal rights and duties without the auctoritas of the tutor.
2 The Dayabhaga and the Mitakshara schools of Hindu law differ on this; former takes it completion of fifteen years, while
the latter considers it to be completion of sixteen years.
3 A text of Narada, which is the foundation of law on this subject runs: “A child is comparable to an embryo unto his
eighth year. A youth who has not reached the age of sixteen is called poganda. Afterwards he is no longer a minor and
independent in case his parents are dead”. I, 35-36. See also Dayabhaga, III, I, 17; Dattaka Mimansa, IV, 47.
4 Dayabhaga, III, 1, 17. Muthurmohan v. Soorendra, ICR (1876) 1 Cal 103 .
5 Dattaka Mimansa, IV 47. The difference of opinion is attributed to particle Aad used in the texts, which means ‘until’ and
therefore may refer to either age limit.
6 See Shivaji v. Datu, (1875) 12 Bom HC 281; Madhusudan v. Devigobinda, (1868) 1 Bom LR 49 (FB); texts have been
discussed.
7 Ramesh Chandra Das v. Maharaja Birender Kishore, (1924) 29 CWN 287. In Sattibaju v. Venkataswami, ILR (1917) 40
Mad 925 the court observed: the age of majority for both males and females according to Hindu law commences at the
age of sixteen, praptetu shodese varshe, that is, on the completion of fifteen year” (at p. 929).
8 According to Jogendra Chandra Ghose, “There is a divergence among Bengal and Benaras writers; about the age of
majority under Hindu law, the former say that it is the beginning and the latter say that it is the end of the sixteenth year.
A Bengal writer has quoted all the relevant texts of Manu, Angira, Vishnu, Sankha and Likhita, Narad, Vrihaspati. The
key word in the texts is: “unashadasa.”
On the other hand Shri Priyanath Sen holds the view that, “best interpretation seems to me to lead to the construction that
majority extends till the end of sixteenth year”: General Principles of Hindu Law, at 299.
1 Section 2(2) of the Indian Majority Act, 1875 (Central Act No. 9 of 1875).
2 The matter in respect of Hindus is now governed by the Hindu Marriage Act, 1955, under which the age of marriage for
a male is twenty-one years and for females the age of eighteen years.
3 In respect of Hindus the matter is now regulated by the Hindu Adoptions and Maintenance Act, 1956; a child of the age
fifteen or above cannot be adopted unless a custom permits such an adoption. Adopters should also have completed
the age of eighteen years.
4 Para 1 of section 3 of the Act of 1875: guardians are appointed under the Guardians and Wards Act, 1890.
5 Para one of section 3 of the Indian Majority Act, 1875; the matter of placing a child under Court of Wards is governed
by state laws.
6 Para two of section 3 of the Indian Majority Act, 1875.
7 Section 11, Contract Act.
8 It is equally important in matrimonial proceedings. When the question of custody, maintenance and education of
children comes before the matrimonial court in ancillary proceedings. See volume one of this series.
9 “Endless are the words of those who have sons; there is no place for the man who is destitute of male off-spring.”
“Through the sons one conquers the world, through the grand sons one obtains immortality, and through the sons’ grandson
one attains the region of sun.” See also Manu Smriti, Vol. V, Verse 137, 122: Dr. Jha’s translation. Baudhayana is also
to the same effect: through a son one conquers the world, through a grandson one obtains immortality, and through the
son’s grandson ascends to the higher heaven.
1 Manu said: “Because the son delivers his father from the hell, called put therefore he has been called putra, deliverer
from put.........” (Manu Smriti, Vol. V. Verse 138).
2 Manu Smriti, Vol. V. 159 (Dr. Jha’s Translation) p. 145. According to Gautama: “The body born son, the son begotten
on a wife through another man, the adopted son, the appointed son, the son born secretly and the cast-off are
inheritors of property. The son of an unmarried damsel, the son of a pregnant bride, the son of remarried women, the
son of an appointed daughter, the son self given and the son brought belong to the family—these latter are entitled to
one-fourth of a share, in the absence of the former six sons. “Dr. Jha’s Manu Samriti, Comparative Notes, part III,
Verses 28, 32, 33 at page 755).
According to Yajnavalkaya: “Among the twelve kinds of sons, the one succeeding inherits the property and offers the ball
(pinda) only in the absence of the proceeding.” (Dr. Jha’s Manu Smriti, Comparative Notes, part III, Verses 2; 132 p.
44).
Page 13 of 16
According to our sages the status of the body-born (aurasa) son and putrikputra was far superior to that of others. Others
were merely secondary sons: Substitutes of son. In the words of Manu: “These eleven, the soil born and the rest, as
here described, the wise one calls ‘substitute of son’—taken with a view to failure of religious duty.” (Manu Smriti, Vol.
V, IX, 180 p. 159, Dr. Jha’s translation).
3 A text of Manu runs; “The man who tries to cross the gloom with the help of bad sons obtains results similar to those
obtained by one who tries to cross the water with the help of unsound boat” (Vol. V, IX, 16, p 146).
4 Jolly; Hindu Law 157.
5 Section 16.
1 According to Manu: “The aged parents, a virtuous wife and an infant child must be maintained even by doing a hundred
misdeeds.” (VIII 389 this text is cited in the Mitakshara, II, 175). And the Mitakshara lays down:
“Where there may be no property but whatever has been self-acquired the only persons whose maintenance out of such
property is imperative are aged parents, wife and minor children” (II, 175-76.)
2 Birhaspati, XV 3.
3 A text of Katyayana runs as under: “Except his whole estate and his dwelling house, what remains after the food and
clothing of his family, a man may give away, whatever it be, whether fixed or immovable; otherwise it may not be
given.”
A text of Vyasa is also to the same effect: “They who are born, and they who are yet to be begotten, and those who are
actually in the womb, all require the means of support, and the dissipation of their hereditary maintenance is censured
(Quoted in Dayabhaga, I, 45). Another text of Manu cited in Dayabhaga (II 23, 24) runs: “The support of a person who
should be maintained is the approved means of attaining heaven, but the hell is the man’s portion if they suffer.
Therefore, let a member of a family carefully maintain them.”
Our Sastras have elaborately discussed the position of certain sons who are, according to them, entitled to some portion in
the inheritance of their father. For instance see, Gautama 28, 33-37, Bandhayana, II, 125, Vishnu, 18, 1-33. Narada
(quoted in Dayabhaga, 14). According to Manu a Brahmin having sons from his four wives of four classes dies, then his
entire property should be divided into ten shares and should be distributed as follows: Four shares to the son of a
Brahman wife, three to the son of Kshatriya wife, two to the son of Vaishya wife and one to the son of a Sudra wife
(Manu IX, 154). The sages differ as to what would be the proportion of shares of such sons, but all agree that they are
entitled to a portion. Those sons who were not entitled to a share were entitled to maintenance.
What is stressed here is that our sages gave some share to all the sons and provided for the maintenance of all of them. In
other words, the principle that one who is responsible for the birth of child, directly or indirectly, must provide for its
maintenance was recognized.
4 The son of a dasi was entitled to maintenance though he was not entitled to any share in the inheritance. Yajnavalkaya
(II 290) makes a distinction between a dasi and avarudha. The latter term is applied to a concubine who is exclusively
and permanently kept by a man, and the former to a concubine who is kept exclusively for sometime.
1 Illegitimate children under Hindu law are dealt with under two heads: (a) illegitimate children of twice born classes, and
(b) illegitimate children of a Sudra. In some cases the illegitimate son of a Sudra is entitled to inheritance (Manu, IX
179; Yajnavalkya II 133-134).
2 A text of Gautam runs: “The son from a sudra woman of a man among the twice born classes who is without issue
receives maintenance, if he is obedient, in the same way as a pupil might receive.” (28.37)
3 Rahi v. Govind, ILR 1 Bom 97; Parichat v. Balin Singh, (1879) 4 IA 159; Muttuswami v. Venkateswara, (1868) 12 MIA
203; Kuppa v. Singavelu, ILR 8 Mad 325; Chamava v. Irya, AIR 1931 Bom 492 .
4 Anathya v. Vishnu, ILR 17 Mad 160; Krishmarao v. Simbadri Vendatarama Rao, (1944) 1 MLJ 219; Hiralal v. Mohraj,
ILR (1938) Bom 779.
5 Krishna Rao v. Simhadri Vendatarama Rao, (1944) I MLJ 219.
6 Choturya v. Purhulad, (1857) 7 MLA 18; Roshan Singh v. Balwant Singh, 27 IA 51; Krishan Kurmar v. Sheo Prasad,
ILR (1947) Nag 162; Vellaiyappa Chetty v. Natarajan, AIR 1931 PC 294 : (1932) 58 IA 402.
7 Rathinasvaoatgu v. Gopala, (1929) 56 MLJ 673 [LNIND 1928 MAD 265]; Mothey Anja Kumar v. Naryan Rao, AIR 1953
SC 433 [LNIND 1951 SC 64]; Takaram Pratapa Singh v. Naryan Singh, AIR 1958 MP 231 .
8 Parchat v. Zalim Singh, 4 IA 159; Chana v. Gereli, 32 Cal 479; Hargovind v. Dharam Singh, ILR 6 All 329; Nilmoney
Singh v. Baneshur, ILR 4 Cal 91.
9 The following hymns from the Rig Veda may be noted: “O, Agni, may I obtain immortality by off-spring.” (1.21, 5 cited
by Manu, VI, 36-7, IX 45; Vashistha, XVII, 2-4 Vishnu XV 45) “He is free from debt who has offered sacrifices, who has
begotten a son and, who has lived as a student with a teacher”. (Taittiriya-Samhita, VI 3, 10, 5 cited by Manu, VI 35-37
Vashistha, XI 48). Manu said “Through a son he conquers the world...........because a son delivers his father from hell
called put he was therefore called putra”. (Manu IX, 137-38) See also Yajanavalkya, 1, 78.
Page 14 of 16
1 1, 639; Another hymn runs: “A son begotten of another though worthy of regard, is not to be contemplated even in the
mind as fit for acceptance, for verily, he returns to his house. Therefore let there come to us a son new born possessed
of good qualities and victorious over foe (VIII, 5, 8). See also Manu (V. 159-60) where he says a chaste Brahman can
go to heaven without begetting a son. To the same effect is Vishnu, XXV. 17.
2 Manu, IX 166; Vijnavalkya II. 128; the Mitakshara I, XI, 2. The Privy Council Decision in Pedda Ammani v. Zamidar of
Marungapuri, (1874) I IA 282 to the contrary does not lay down the law correctly. See Mayne, Hindu Law (11th Edn.,)
108.
3 He is son born to a daughter after her appointment by her father to continue his line. No agreement with the daughter’s
husband was necessary, mere intention on the part of the father was enough.
4 See foot note 8 at p. 221.
5 Gautama, Dr. Jha’s Manu Smriti Part II p. 744; Manu, IX 180. See also Dr. Jha’s Manu Smriti, Vol. V verses 159-60.
6 Hindu law condemned the adulterer as well as the wife. See Yajnavalkya, III 70; “Deprived of authority without a toilet,
with food barely sufficient to sustain the body, humiliated, sleeping on the floor, an unchaste wife should be thus
compelled to dwell”. See also Manu, XI. 176. If adultery was with a person of inferior caste. Brahaspati said “She who
has been enjoyed by one of an inferior varna should be cast off and killed.”
7 See Yajnavalkya, II, 133-34, 290, Manu, IX 155.
8 Yajnavalkya, II, 133-34.
9 Yajnavalkya, II, 133-34. See also Mitakshara, 1, 12: Dayabhaga, IX 28.
10 The Hindu Succession Act, 1956, sec. 3(1)(j).
1 The Hindu Succession Act, 1956, section 30 now permits a Mitakshara coparcener to dispose of his undivided interest
in the joint family by Will.
2 The Hindu Adoptions and Maintenance Act, 1956, section 20.
3 Parvati v. Raghunath, 1946 Nag LJ 97; Padmavati v. Ramachandra, AIR 1951 Ori 248 .
4 AIR 1931 PC 294 : (1932) 58 IA 402.
5 The Hindu Adoptions and Maintenance Act, 1956, section 20.
6 The same should apply to the interpretation of section 38, the Special Marriage Act, 1954.
7 Section 25.
8 Under section 8 of the Act an application for appointment of guardianship may be made by any person.
1 Manu, VIII, 27; Gautama, 10, 48; Vasishtha, 16, 7-8; Narada, XIII, 28-29.
2 Hindu law treated the guardianship of minor and student at par.
3 The father is specifically mentioned by Narada.
4 Narada alone refers to mother. In fact in other texts mother has not been mentioned. But her claim was recognized by
usage and custom.
5 Appointed under the Guardians and Wards Act, 1890.
6 In the pre-independent India, some provinces have enacted Court of Wards Act, such as Bengal Court of Wards Act,
1879, Madras Court of Wards Act, 1902, Punjab Court of Wards Act, 1903, Bombay Court of Wards Act, 1905, U.P.
Court of Wards Act, 1912. Under these statutes when a jamindar or jagirdar or ruler (or in short, land-holder) was a
minor or spendthrift or otherwise incapable of managing his estate then his estate was taken under the Court of Wards
and usually the collector was appointed as guardian. Some other person might also be appointed as guardian. These
statutes in modern India have become obsolete.
1 Order XXXII.
2 In fact it is only Narada who mentions father and others: Narada XIII, 28-29.
3 Narada mentions father first then the mother and then other relations.
4 See Vashishtha, 16, 7-8.
5 See Kristo Kissor Neoghy v. Kader Moye Dossee, (1878) 2 CLR 583; Chemmapat v. Onkarappa, ILR (1940) 2 Mad 358
(FB). Mr. Justice Sastryar in Seetharammanna v. Apian, ILR (1925) 49 Mad 768 . Devadoss and Jacson, JJ. in (1927)
53 MLJ 677 [LNIND 1927 MAD 213].
6 Jiwan v. Salindra, AIR 1945 Cal 272 ; see also Trevalyan, Law relating to Minors, 64.
Page 15 of 16
7 Kristo Kissor Neoghy v. Kader Moye Dossee, (1878) 2 CLR 583; Puroshotama Ratho v. Brundavan, AIR 1931 Mad 597
[LNIND 1930 MAD 256]; Chemmapat v. Onkarappa, ILR (1940) 2 Mad 358 (FB).
1 Alagappa Ayyangar v. Mangathai Ammangar, (1916) ILR 40 Mad 672; Knothalathammal v. Thangaswamy, ILR (1923)
Mad 873; Amrithavalli v. Shrimani Ammal, ILR (1938) Mad 757; Devanand v. Anandmani, ILR (1921) 43 All 213 ;
Babhilal v. Morarji, ILR 31 Bom 413.
2 Prem v. Banarsi, ILR (1934) 15 Lah 630 ; Lalita v. Parmatma, AIR 1940 All 329 .
3 Mahabir v. Raghunath, AIR 1933 Oudh 312 .
4 Prem Kaur v. Banarsi Dass, AIR 1934 Lah 1003 : ILR (1934) 15 Lah 630; Lalita v. Parmatma, AIR 1940 All 329 ;
Kooverji v. Motibai, AIR 1936 Sind 63 .
5 Lalita v. Parmatma, AIR 1940 All 329 .
6 Gohar v. Suggi, AIR 1960 SC 93 [LNIND 1959 SC 146].
7 Ethilavul Ammal v. Pethakkal, AIR 1950 Mad 390 [LNIND 1949 MAD 297].
8 Nathu Singh v. Crown, ILR (1942) Nag 34; Arumugha v. Viraraghava, (1901) ILR 24 Mad 255; Akamma v. Puyyaiya,
ILR 3 Mys 119.
9 Lakshmidai v. Shridhar, ILR (1879) 3 Bom 1 ; Rathanammal v. Govindaswami, AIR 1934 Mad 44 [LNIND 1933 MAD
293]; Puroshotama Ratho v. Brundavan, AIR 1931 Mad 597 [LNIND 1930 MAD 256]; Manmohani Devi v. Har Prasad,
ILR (1925) 4 Pat 109 .
10 Anjubala v. Dabarata, ILR (1949) 3 Cal 278 .
11 Lalta v. Ganga, AIR 1973 Raj 93 (Earlier cases have been reviewed.)
1 Section 9(2).
2 Jijabai v. Pathan, AIR 1971 SC 315 [LNIND 1970 SC 341](319).
3 Naranya v. Sapurna, AIR 1968 Pat 318 .
4 Chandra v. Prem, AIR 1969 Del 283 [LNIND 1969 DEL 38]; Santhakumari v. Natrajan, (1973) 2 MLJ 286 [LNIND 1971
MAD 364]. See for the contrary view, Vasudevan v. Vishwalaxmi, AIR 1959 Ker 403 [LNIND 1958 KER 256]. It is
submitted this view is incorrect.
5 Shella v. Soli, AIR 1981 Bom 175 [LNIND 1981 BOM 27].
6 A. Anjurbala v. Debarata, ILR (1949) 3 Cal 278 .
1 Manusmriti, V, 146.
2 Naradasmriti, XII, 28-29.
3 Kateeram v. Dokanee, 23 WR 178; In the matter of Dhuronidhar Ghose, ILR (1890) 17 Cal 298 .
4 Arumugha v. Viraraghava, (1901) ILR 24 Mad 255; Navneet v. Pursotham, ILR (1926) 50 Bom 268 .
5 See Lakshmachari v. Subbama, 12 Mys LJ 188; Angulbala v. Dababraba, ILR (1949) 3 Cal 275 .
6 Explanation to section 6.
7 See section 10 of the Act.
1 The statutory recognition was given by the Hindu Wills Act, 1870.
2 Section 9.
3 Section 9(1).
4 Section 39 of the Guardians and Wards Act, 1890 says by will or other instrument.
5 Section 9(6).
1 See for instance Hari Lal v. Sankaranaryana, ILR (1948) Mad 351; Hari Lal v. Mani, ILR (1905) 29 Bom 351 .
2 Section 9(1) of the Act of 1956.
3 Section 5(5) of the Act of 1956.
4 Section 39, the Guardians and Wards Act, 1890.
5 See Narada XII 28.
6 Section 2 of the Act. See also Raj v. Indra, 1972 MPLJ 775.
7 Section 17.
Page 16 of 16
8 Section 17. See Babu Ram v. Keshavachand, AIR 1978 P&H 124 .
9 Section 13, the Hindu Minority and Guardianship Act 1956. Gangabai v. Bhirulal, AIR 1976 Raj 153 ; Mohini v.
Virendra, AIR 1977 SC 1359 ; Amrik Rai v. Satpal Sood, AIR 1983 P&H 301 .
3 Brihaspati, IX 50; Manu, VIII, 167; Narad, I, 12; Vishnu, VI, 34-39.
4 Dr. Gour’s Hindu Code 446. The main distinction between the powers of the two is: if an improper alienation is made by
a natural guardian, such alienation is merely voidable, but in the case of a de facto guardian it is void, void in the sense
that the minor can recover possession within twelve years after attaining majority. If he does not do so, the property is
lost. In our submission the view expressed in Srimulu v. Pundarikakshayya, AIR 1949 FC 218 and in Palani Gouldan v.
Vajikkal, AIR 1956 Mad 476 [LNIND 1955 MAD 186] that it is merely voidable is not correct.
1 AIR 1949 FC 218 .
2 Chinna Alagum Peruamal v. Vinayakathamal, AIR 1929 Mad 110 [LNIND 1928 MAD 188].
3 Crump, J. in Harilal v. Gordha, AIR 1927 Bom 611 .
4 Tyabji defines a de facto guardian as an ‘unauthorised person who as a matter of fact has custody and care of the
person and or his property. Mohammedan Law, 3rd Edn., 270.
1 Narada, XIII. 28-29.
2 AIR 1960 All 479 [LNIND 1959 ALL 224].
3 Khudiram Mukherjee v. Banwari Lal, ILR (1889) 16 Cal 584 ; Chinna Alagum Peruamal v. Vinayagathammal, AIR 1929
Mad 110 [LNIND 1928 MAD 188]; Paras Ram v. State, AIR 1960 All 479 [LNIND 1959 ALL 224].
4 Totaram v. Ram Charan, ILR (1911) 33 All 22 ; Nathuram v. E., AIR 1941 Nag 66 ; Mst Kasubai v. Mst. Chandrabhaga,
AIR 1948 Nag 100 .
5 AIR 1960 All 479 [LNIND 1959 ALL 224].
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
5. Over-riding effect of Act.—

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 contained in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in
so far as it is inconsistent with any of the provisions contained in this Act.
Comments
1. Scope
This section should be read along with section 2 of the Act. The section gives overriding effect to the provisions
of the Act over:
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of this law, and
(b) any other law in force on subject immediately before coming into force of this Act.
The language of the section is identical with the language of section 4 of the Hindu Adoptions and Maintenance
Act, 1956 and therefore reference should be made to our commentary of that section contained in Part I of this
work.
2. Guardians and Wards Act
The Guardians and Wards Act too would be covered under clause (b) of this section, but section 2 of the Act,
as we have seen, lays down that the provisions of this Act shall be in addition to, and not, save as hereinafter
expressly provided, in derogation of the Guardians and Wards Act. We have discussed the case law coming
under section 2 of this section in our commentary on section 2.
Page 2 of 3
In Madhu Bala v. Arun Khanna,1the question came before the Delhi High Court. In this case the father applied
for the custody of his minor child aged three years who was living with his mother. The parents of the child had
separated and the mother was living with her parents. The father levelled charges of immorality against the
mother, but none of them could be substantiated. In our submission, Mohinder Narain, J., who delivered the
Judgment (though the Judgment is basically correct) of the court had made some conceptual mistakes. The
petition of the father was under section 25 of the Guardians and Wards Act. The section lays down that if a
“ward” is removed from the custody of the guardian, the latter can sue for the restoration of custody.
Unfortunately, the learned Judge says that since there was no “guardian” appointed by the court there was no
“ward” on the date of the filing of the petition, since section 25 postulate pre-existing guardianship orders by the
court. In our submission any guardian can sue under section 25, whether he has been appointed by the court or
whether he is a natural or testamentary guardian. Then the learned Judge referred to proviso of section 6, the
Hindu Minority and Guardianship Act which lays down: “provided that custody of a minor who has not
completed the age of five years is with the mother”. In our submission the proviso merely confers custody of a
child of tender years (below the age of five years) on the mother. It does not confer guardianship of such
children on her. The guardianship continues to vest in the father. Since mother was called a natural guardian,
his Lordship continued to observe, “At the time of the filing of the petition, the natural guardian, in view of the
provisions of section 6 of the Hindu Minority and Guardianship Act was the mother.2 In my view there have to
be strong reasons for appointment of a person other than the ‘natural guardian’ as a guardian under the
Guardianship Act.” Then the learned Judge said that “in any event it is well settled that the interest of the minor
is paramount in determining the matter of his custody.” He relied on certain Judgments of the Supreme
Court.1The learned Judge did not refer to section 13 of the Hindu Minority and Guardianship Act which lays
down that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare
of the minor shall be the paramount consideration. Earlier, after quoting the provisions of section 25 and section
4 of the Guardians and Wards Act and section 6 of the Hindu Minority and Guardianship Act, the learned Judge
said that in view of section 2 of the Hindu Minority and Guardianship Act, these provisions make it clear that the
provisions of the Hindu Minority and Guardianship Act are in addition to the Guardians and Wards Act and
would be deemed to be incorporated in that Act in the manner and to the extent postulated by section 2 of the
Hindu Minority and Guardianship Act. Then he said:
In my view section 25 read with aforesaid provisions of section 4 of the Guardians and Wards Act and sections 2 and 6
of the Hindu Minority and Guardianship Act mean that the ‘natural guardian’ concept has to be applied in case where
the parties involved in a guardianship case are both Hindus.
In our submission this observation was not necessary as the “concept of natural guardianship” is already a part
of Hindu Minority and Guardianship Act, and it does not come into existence by virtue reading the Guardians
and Wards Act into the former.
In N. Palanisami v. A. Palaniswamy,2the minor girl was living with her maternal grandfather after the death of
her mother. Both her father and grandfather has married a second time. The father filed a petition under section
25, the Guardians and Wards Act, for custody of the minor. The father had better means to support the family.
As regards to ill treatment of step mother or step-grandmother, the step-mother was preferred over the step-
grandmother. Custody was granted to father holding that interest and welfare of minor is better served in
custody of father.
3. Indian Majority Act
The Indian Majority Act deals with the age of majority. This is not the statute covered by section 2 of the Act
and therefore if any of its provision is inconsistent with the Act it would not prevail. InV.N. Swaminathan v.
Angaryarkanni,3 (we have discussed this case in our commentary on section 2), the court held that provision of
section 3 of the Act was not inconsistent with clause (a) of section 4 of the Hindu Minority and Guardianship
Act.
4. Hindu Widow’s Remarriage Act
In Kasa Parida v. B. Malik,1 the Orissa High Court held that section 3 of the Hindu Widow’s Remarriage Act,
1856 which disqualifies a widow to remain a guardian of her minor children on remarriage is inconsistent with
the provisions of section 6 of the Hindu Minority and Guardianship Act.
Similarly, in K. Amma v. B. Mennon,2 section 10(2) of the Travancore Nayar Act and in Raghava Nair v.
Laxmi,3 section 15 of the Madras Marumakka Hayam Act were held to be inconsistent with the provisions of the
Hindu Minority and Guardianship Act.
Page 3 of 3
1 AIR 1987 Del 81 [LNIND 1986 DEL 120].

2 At the later part of the judgment the learned Judge says, “I am not appointing the mother as a guardian. What I have
held is that she is entitled to retain custody of minor. In any case in view of the law discussed hereinbefore, which is to
the effect that welfare of the minor is paramount, his welfare lies in continuity of care and custody with the mother.” In
this, the learned Judge was right. He, then, added, “I do not agree with the contention that there has to be a finding that
the father is an unfit person before custody of a minor can be dealt with.”
1 Rosy Jacob v. Jacob, AIR 1973 SC 2090 [LNIND 1973 SC 118]; Veena Kapoor v. Varinder Kumar, AIR 1982 SC 792
[LNIND 1981 SC 209].
2 AIR 1998 Mad 264 [LNIND 1998 MAD 486].
3 AIR 1964 Mad 11 [LNIND 1963 MAD 34].
1 AIR 1966 Ori 60 [LNIND 1965 ORI 48].
2 AIR 1961 Ker 154 .
3 AIR 1961 Ker 193 [LNIND 1960 KER 318].
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
6. Natural guardians of a Hindu minor.—

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s
property (excluding his or her undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the
custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
(c) ) in the case of a married girl—the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).
Explanation.— In this section, the expression “father” and “mother” do not include a step-father and a
step-mother.
Comments
1. Scope
This section primarily deals with the natural guardians of the person and property of child. At a time, at the
zenith of patriarchal society, when paternal power was all pervading and over-powering, it was not possible to
call the father as natural guardian. The father had absolute power over the person and property of all persons,
including his children, who were members of his family. That society could not have conceived the idea of
calling the father as natural guardian of his children. With the sway of his absolute powers extending to
everything and everybody in his household, one could not even think to call the father as guardian of his
Page 2 of 40
children. To call the father as guardian, natural or otherwise, would have been superfluous even derogatory of
his position. What is unique in Hindu law is that the patriarchal family did not transform itself into a nuclear
family, but into a joint family, and again in such a setting father could not have been called the natural guardian.
The patriarch of the family assumed the name of karta and again possessed fairly wide powers. All the
members of the family were obviously under his protection. The minor coparceners’ interest in the joint family
property was also under the protection, care and management of the karta. Thus minor’s person and property
were under his care.
On the death of the father, the eldest male immediately became the karta (this was also the case under the
Dayabhaga school) and the minors immediately came under his care and protection. Thus, even after the death
of the father, the person and property of the minor continued under the protection of the karta. The self-
acquired property of the minor was not under the control of the karta. At that time self-acquired property of the
minor was very insignificant. Probably it was this property which the king was enjoined to protect.
Thus, so long as the family remained joint—and ordinarily it remained joint for a fairly long time—the question of
the guardianship of minor’s person and his interest in the joint family property could not have arisen. The death
of parents made no difference. Ordinarily the king has no power to interfere with the affairs of a family.
In Hindu law, on the death of the father, the need for guardian for minor children was not felt. On the death of
the father the minor children passed under the care of the karta. The Roman minor pater familias needed
protection to grow up into adulthood. The Hindu minor, being always under the protection of the joint family,
needed no such external protection.
The fact of the matter is that the concept of natural guardian emerged during the Raj when the court after some
confusion came to hold that the father is the sole natural guardian of his minor children so long as he lived and
mother became the guardian of her minor children on the demise of the father. It also came to be laid down that
the husband is the natural guardian of his minor wife. The father, the mother and the husband became natural
guardians of minor’s person as well as his or her separate property. The interest of a minor child in the joint
family property did not fall into the purview of natural guardian. This section virtually codified this position.
The section thus lays down as to who are the guardians of (a) minor legitimate children; (b) minor illegitimate
children and (c) minor wife.
It does not deal with the guardianship of a minor widow but there is nothing in the Act which abrogates
guardianship by affinity, i.e., guardian of minor widow.
The section provides, for the guardianship of:
(i) the person of minor children, and

(ii) the property of minor children.
The proviso to clause (a) of the section confers the right of custody of a child who has not attained the age of
five with the mother.
The section also lays down two disqualifications of the natural guardian, viz., one who has ceased to be a
Hindu or one who has finally and completely renounced the world is not entitled to the guardianship of his minor
children.
It is obvious that the section applies to Hindu minor children and it applies to those children who are minors
within the meaning of section 4(a) of the Act.
The provision of the section will apply to Hindus, irrespective of the fact whether their marriage was solemnized
under Hindu law, the Special Marriage Act or under any other law. In short, is not material so long as parents
and children remain Hindus.
2. Legitimate Children
The natural guardian of legitimate male children is, at the first instance, father is also the natural guardian of his
legitimate unmarried daughters. The “father” means natural father and does not include a step-father,1 or
putative father.
Sheokumar Ram Prasad Tiwari v. Shiv Rani Bai,2is an interesting case. In this case, Sushila, the minor was
Page 3 of 40
entrusted in the custody of two neighbours by the father with whom he was in very friendly terms at the age of
six months, when mother died. When Sushila was 11 years the father asked his worthy neighbour for the return
of custody to him. They declined to do so. Under these circumstances, the father filed a petition for the return of
custody to him under section 25, the Guardians and Wards Act. The father made several allegations against his
neighbours. The trial court decided in favour of the father. On appeal to the High Court, the single judge gave
several directions in which he recognised that the father was the natural guardian but also recognized some
rights of the custodians. On a letters patent appeal against this order, the Division Bench observed that the
father as natural guardian has almost absolute right. The following passage from an old Privy Council
case,Annie Beasant v. G. Narayaniah,1 was quoted in support:
As in this country, so among the Hindus, the father is the natural guardian of his children during their minorities, but the
guardianship is in the nature of a sacred trust, and he cannot, therefore, during his life-time substitute another person
to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and
education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the
welfare of his children require it, he can notwithstanding any contract to the contrary, take such custody and education
once more into his own hands. If, however, the authority has been acted upon in such a way as, in the opinion of the
court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part
of the infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent
its revocation.
Then, commenting on the question whether the father can revoke the authority given to third persons in the
matter of custody, the court said:
Once the court has found that it would be in the welfare of the minor to revoke the authority and restore the minor’s
custody to the father, then the above considerations cannot be made the basis for giving any voice to the persons, to
who the custody and care of the minor had been formerly entrusted, in the matter of the minor’s care or residence or
education after the restoration of the custody. So to do is to render ineffective the decision to restore the minor to the
custody of the father. Once the minor is restored to the custody of the father, then his rights over the minor are no
doubt subject to the provisions contained in the Guardians and Wards Act, 1890 and thehindu Minority and
Guardianship Act, 1956 and such orders as the court may make thereunder, but they cannot be fettered by wishes of
third persons.
The learned Judges said that father’s right over his minor children are absolute and uncontrolled. He is the
person who would decide what education the child should have and where it should go, and third persons
cannot interfere in this right even if they have had custody of child for a large part of its minority. The court
realized that it would be great disappointment to the custodians who have brought up the girl for long thirteen
years as their daughter, and it might be also a great disappointment to the girl herself who had hardly known
her father, but at the same time, the father who is the natural guardian of his daughter Sushila, cannot be
deprived of his undoubted right over her on account of consideration of feelings for the girl or for the
respondents. Sushila is not a baby. She is now in an adolescent stage; and though, in that stage, she may for
sometime feel the change, in the custody, she will later on realise that her return to the father’s custody is in her
welfare and interest. When the girl is approaching marriageable age, it is not only natural but right that the
father should desire to have the child in his own custody.
In Ankur Tripathi v. Radhey Shyam Pandey,1 the parents filed a writ of habeas corpus to obtain custody of the
child from maternal grand-parents. The child was left with maternal grand-parents due to the ill health of
mother. The child was willing to live with the parents. Since parents are natural guardians the custody was
awarded to them.
In S. Bikramjit Singh v. Iqbal Kaur,2 the father of a minor child aged about five years had taken a second wife
after the demise of his first wife, mother of the child. The natural grand-mother of the child aged 75 years
claimed custody of the child. The court said that as the facts of the case stood, there was no justification in
denying custody to the father who was the natural guardian of the child. The court added, the natural grand-
mother was an old lady of 75 years and if she was given custody the child would, in fact, be at the mercy of her
maternal uncles and aunts. The court said:
They cannot be expected to evince the same interest in the health, welfare and upbringing of the minor that a natural
or a step-parent may take. Moreover, the uprooting of a minor child from his environment can create an emotional
upheaval which may not be in the interest of the physical or mental health of the child.
Page 4 of 40
In this case it was also found that step-mother of the child was giving the child adequate care and affection.
Similarly, in Pravat Kumar v. Dilip Pramanick,3 an application by maternal grand-father was filed to appoint him
as guardian of minor’s person and property till the minor attains majority. It was held that since the father is a
natural guardian, minor cannot be removed from his custody. A heavy burden lies on the other party to prove
father’s cruelty or immorality.
Where mother filed an application that her brother be appointed as guardian of her minor daughter in presence
of father and when father was found to be not unfit to act so such application was liable to be rejected. Father
cannot be removed from this capacity unless found to be unfit.4
In In re, Madhav Chandra Saha,5 the parents of the child had obtained divorce by mutual consent. Father has
never bothered about the child ever. After a long time he approached the High Court by filing writ of habeas
corpus to obtain custody which was denied.
The next natural guardian, after the father is the mother. Mother is entitled to the guardianship of her legitimate
children after the death of the father. Like the father she is the natural guardian of her minor son and unmarried
minor daughters.
The fact of the matter is that mother will be the natural guardian of her minor legitimate children in the following
three situations:
A. When father is dead.

B. When father has ceased to be a Hindu, and
C. When father has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an
ascetic (yati or sanyasi).
On the last two cases we would dwell in paras
It is evident from the provision in clause (a) of the section that mother’s right of guardianship arises only on the
death of the father. So long as the father is alive he has the right to guardianship and mother is nobody. But
Jijabai v. Pathankhan,1 deviates from this proposition. In this case the validity of certain leases was doubted
because the lease deeds were executed by the mother acting as guardian, while the father was alive. The main
contention has been that during the life-time of the father, mother could not act as a guardian and therefore, the
lease deeds executed by her on behalf of the minor child were invalid. This was a suit for terminating these
leases by the minor daughter on attaining majority. In this case the father and mother of the child had fallen out
and that the mother was living separately for over 20 years. It was the mother who was actually managing the
affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the
usual course of management had been leasing out the properties of the appellant to the tenant. Though from
1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of
the appellant represented by her mother. The Supreme Court observed:
It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as
good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of
the High Court that in the particular circumstances of this case, the mother can be considered to be the natural
guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and
Guardianship Act, 1956 (Act 32 of 1956) the mother is the natural guardian after the father.........The position in the
Hindu Law before the enactment was also the same. That is why we have stated that normally when the father is alive
he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found
above the mother was rightly treated by the High Court as the natural guardian.
The Supreme Court, in our submission, rightly observed that where the father was alive but had fallen out with
the mother of the minor daughter and was living separately for several years without taking any interest in the
affairs of the minor who was in the keeping and care of the mother, it was held that in the peculiar
circumstances, the father should be treated as if non-existent and therefore the mother could be considered as
the natural guardian of the minor’s person as well as property and had power to bind the minor by granting
lease of her land in proper course of management of the property.
Page 5 of 40
This theme was carried forward by the Allahabad High Court in K. Kumar v. Onkar Nath,1 the court said that
even if the father of the Hindu minor was alive, the mother as a next friend, was competent to give notice of
demand under the Rent Control Act and was also competent to file a suit on behalf of the minor. The court in
this case, it appears, treated the mother as de facto guardian as it said that giving of notice of demand and filing
the suit was not “disposing of or dealing with property,” within the meaning of section 11, the Hindu Minority and
Guardianship Act, the court added, “As a matter of fact Order XXXII, rule 1, Civil Procedure Code authorizes
the filing of a suit on behalf of the minor through a next friend. If a suit can be filed through a next friend, there is
no justification, why notice can not be given through the mother.
In a landmark decision in Githa Hariharan v. Reserve Bank of India, and Vandana Shiva v. Jayanta
Bandhopadhyaya,2 the Supreme Court has given a finding that definitions of “guardian” and “natural guardian”
do not make any discrimination against mother and she is one of the guardians mentioned in section 6 and she
would undoubtedly be a natural guardian as defined in section 4(c). It has further been held in this case that in
light of welfare of the child as the paramount consideration principle, the word “after” has no significance, in
case of dispute concerning the guardianship of a minor between the parents as the governing principle would
be the interest of the minor and his welfare in the widest sense while determining the question with regard to
the custody and guardianship of the minor.
Further the Supreme Court has deliberated on the term “after” used in section 6(a). This term has been
interpreted as “in absence of” instead “after the life-time”. Absence here would mean absence of father from
care of minor’s person or property for whatever reason, whether the parents of the child are living separate, or
there is mutual understanding between the parents that the mother would be in the exclusive charge of the
minor or father is physically or mentally unable to take care of the minor. Therefore, if the minor is in exclusive
care and custody of the mother, she would be entitled to act as its natural guardian and all her actions would be
valid even during the life-time of the father.
It has been observed by the Supreme Court:
The father by the reason of dominant personality cannot be ascribed to have a preferential right over the mother in the
matter of guardianship since both fall within the same category and in that view of the matter the word “after” shall have
to be interpreted in terms of the constitutional safe guard and guarantee so as to give a proper and effective meaning
to the words used.
No doubt it is salutary judgment but it seems that mother is brought at par with father only when she is in
exclusive charge of the child for whatever reason. The Supreme Court has not deliberated on the point as to
whether both the parents would be natural guardians when the child is in the mutual care of both the parents.
This is in fact a reiteration of an earlier case Jijabai v. Pathankhan,1 in which also mother was held to be the
natural guardian of the child because the father was not taking interest in his minor daughter’s affairs. Mother
need not seek permission of court to act as guardian of minor.2
Carrying from here, mother had sought permission of the court to alienate minor’s property for education
purposes in capacity of natural guardian and where father was alive and did not oppose such application, she
could very well have acted in such capacity and asking father to supply reasons as to why not he in place of his
wife filed such application is not proper. In absence of father mother can very well act as her child’s natural
guardian.3
3. Illegitimate Children
Legitimacy is essentially a concept of civilized society. It is the direct outcome of the concept of marriage.
The Western concept of family law is the direct outcome of the Christian concept of monogamous marriage.
From it flows the rule that the children born in a lawful wedlock are alone legitimate. As a corollary to this rule:
all children born out of the lawful wedlock have no status. In the procreation of illegitimate children a feeling of
sin is involved. Only those children who are born within the lawful wedlock are moral and therefore legitimate.
Those who are born out of lawful wedlock are fruits of immorality and sin, and therefore illegitimate. Thus, ideas
of morality and legality get inter-linked. And, in our submission as long as we are going to subscribe to that
notion, i.e., there is inherent some guilt or sin in the procreation of children outside lawful wedlock, the
illegitimate children would continue to suffer from the social, moral and legal stigma of bastardy. Friedmann
puts very aptly: “To equate an illegitimate child for all and every purpose with legitimate child is clearly not
possible without undermining the legal principles of monogamous family.4
Page 6 of 40
The English common law and the Mohammedan law have taken to the logical end the notion that an illegitimate
child has no status by calling him fillius nulius, no body’s child, neither of the father nor of the mother. How
natural it was in 1841 for Mr. Justice Maule to say:
How does the mother of an illegitimate child differs from a stranger.5
In English law recognition of the natural parents was made under the Poor Laws Acts, but then the parents
were recognized to have certain obligations towards children and not rights.6 It was an equity that some rights
of de facto parents in respect to their illegitimate children were recognized. Sir George Jessel, M.R.,
said............”In equity regard was always had to mother, putative father...........” Lord Herschell said that in
regard to an illegitimate child it was only the desire of the mother that was considered.1 Cockbrun, C.J. said
that the ‘father of an illegitimate child is not recognized by the law of England as to civil purposes’.2 Before
1925 the putative father could be compelled to provide for maintenance of his children only under an affiliation
order obtained by the mother under the bastardy laws.3 The mother was bound to maintain her illegitimate
children under statutes.4 As late as 1955, Denning L.J. said: “The truth is that the law does not recognize the
natural father at all”.5 That statement was made in connection with adoption statutes.6 A year earlier Viscount
Simonds said that as it was in 1857 so it is today a cardinal rule applicable to all written instruments wills, deeds
or Acts of Parliament that ‘child’ prima facie means ‘lawful child’ and ‘parents’ means ‘lawful parent’7 Although
‘the revised interpretation of the word, ‘child’ as propounded by the Court of Appeal, was upset by the House of
Lords8 in respect to proceedings under the Matrimonial Causes Act, 1950, the courts have not been able to go
that far in other respects, not even under the Guardianship of Minors Acts.
Doubts were first expressed in Re, Caroll,9 which took the view that the Acts were confined to proceedings
between parents.10 In In re G.11 the court gave custody to the natural mother as against the putative father: the
case is clearly based on the right of the natural mother of an illegitimate child. Then came In re, C.T. & Re,
J.T.12 where Roxemburg, J., in a very elaborate judgment after discussing that the “prima facie meaning of the
terms ‘mother’ and ‘father’ is not to be departed from unless compelling reason can be found in the statute for
doing so.” And the learned judge did not find any “compelling reason” anywhere in the Guardianship of Infants
Act, 1925, to depart from the prima facie meaning.
In re, Caroll13 the putative father did not figure anywhere in the proceedings. But in In re, A.,14 the putative
father desired to have the custody of the child as against the mother who desired to have the custody of the
child with a view to give it away in adoption. Declining to give custody to the mother, Sir Reymond Evershed,
MR., said that if the mother’s wishes of giving away the child were to be fulfilled, it would mean the total
abandonment and extinguishment for all practical purposes of all the natural rights towards the child. This was
a case under the inherent jurisdiction of the Chancery Division.
The courts have consistently taken the view that under the Adoption Acts, the word, ‘parent’ does not include a
putative father,1 and have declined to give custody to the putative father as against the mother who has desired
to give away the child in adoption.
The decisions in adoption cases imply that if a legitimate child is proposed to be given in adoption, any parent
can veto it, as consent of both the parents is necessary but if an illegitimate child is proposed to be given in
adoption, only parent whose consent is necessary is the mother and the putative father cannot veto it, though
the court may decline to pass an adoption order if it considers it to be undesirable in the welfare of the child.
Under the Hindu law also, the putative father is nobody, if the mother desires to give away her child in adoption
and under Hindu law the power of the mother is absolute, as no order of the court is necessary.
In Hindu law the illegitimate child and putative father and natural mother have never been considered as
strangers to each other. The putative father of a dasiputra can exercise all paternal power over the illegitimate
child and he can exercise, some control over the mother. Before and after 1955 the mother has been
recognized as natural guardian of her illegitimate children. During the life-time of the mother the putative father
was not entitled to guardianship of the illegitimate children, though his obligation to maintain them has always
been recognized.2 However, in certain cases a different view was taken. In Prem Kaur v. Banarsi Dass,3 the
court took the view that since the putative father has an obligation to maintain his children, that obligation
entitled him to the custody of his children. Of course, if mother herself places the children in the custody of the
putative father and allows him to bring them up, then the court would not enforce her right of guardianship or
custody to the prejudice of the children.4
Page 7 of 40
The modern Hindu law recognizes the putative father as natural guardian of his illegitimate children after the
death of the mother.5 His obligation to maintain them has now been given statutory recognition.6
Under Hindu law an illegitimate child has never been considered as filius nullius. In some cases he has been
considered to be a member of the family. Illegitimate sons under Hindu law may he classified under two heads
(a) an illegitimate son born of casual connection, and (b) an illegitimate son born of a dasi, i.e., of a
permanently and exclusively kept concubine. Though the texts are not very clear but daughters may also be
classified similarly. The son in the former category was not considered to be the member of the father’s family.
But he was entitled to maintenance against the father.1 The same ought to be the position of the daughter.
The illegitimate son of a dasi known as dasiputra was considered to be a member of his father’s family though
not as coparcener, and he has full rights of maintenance.2 The dasiputra among the Sudras enjoyed still a
higher place. His position is covered by special texts.3 An illegitimate son has the status of a son and he is a
member of his father’s family,4 although his rights are limited as compared to a legitimate son. He has to birth-
right in the family and consequently he is not a coparcener and cannot ask for partition. During the life-time of
the father if partition takes place it depends upon the father’s choice as to what share he would get.4 But on the
death of the father, his position is that of a coparcener along with the legitimate son. He had both the rights of
partition and survivorship. On the death of the legitimate son he takes the entire property. In the event of the
death of the father leaving behind a widow, daughter or daughter’s son, he is entitled to half a share. If none of
the female is there, then he takes the entire property.5
The dasiputra is entitled to a share in the inheritance of his father as a member of his father’s family, in his
status as a son and not merely in lieu of maintenance.6 If a sudra dies leaving behind a widow and an
illegitimate son, both share equally.7 On the death of the widow, he succeeds to the half share taken by the
widow.8 Only distinction that exists between him and a legitimate son is that on partition he takes only half
share of what he would have taken had he been a legitimate son.9
A dasiputra is entitled to maintenance so long as he lives and he is entitled to full maintenance and not merely
compassionate maintenance in recognition of his status as the member of his father’s family and by reason of
his exclusion from inheritance among the regenerate classes10 A dasiputra is entitled to maintenance even if at
the time of his conception his mother was a married woman whose husband was alive and therefore her
connection with the putative father was adulterous.11
Though the case of an illegitimate daughter is not covered, but it seems that she is entitled to maintenance till
she is married, and her marriage is also the responsibility of her putative father.1
Under the modern Hindu law, the position of dasiputra has deteriorated. From the point of maintenance, all
legitimate and illegitimate children have been put at par. Every Hindu male or female has an obligation to
maintain legitimate and illegitimate children.2 The obligation comes to an end on the child’s attaining the
majority.2 But under the modern law the dasiputra cannot claim maintenance beyond his minority. Further, an
illegitimate child, son or daughter of any class, is not entitled as an heir to inherit any property of his or her
father (in fact now classes do not exist for the purpose of inheritance).3 An illegitimate child now inherits only
the property of its mother.4
In sum:
(a) The natural guardianship of an illegitimate minor male child and illegitimate minor unmarried girl at the
first instance vests in the mother. But mother does not include a step-mother.
(b) After the death of the mother, the natural guardianship of the aforesaid category of children passes to
the putative father.
(c) The mother would lose her right of guardianship if she (i) ceases to be Hindu, or (ii) if she renounces
the world by entering into a holy order.
(d) Custody of illegitimate children would also vest in the mother and it is not limited to the children of five
years. She can have it during the entire period of minority. In our submission the disqualifications laid
down in proviso to the section do not apply in reference to custody. These have been laid down only in
respect of guardianship.
4. Position of Illegitimate Children in Other Systems

Page 8 of 40
In some ancient and modern systems, the position of illegitimate children has not been so bad. In Roman law
the position of an illegitimate child has not been uniform in its different periods of development. In early Roman
law, the illegitimate child had no family, no country, no name, no ancestor and no God; he was under the
potestas of no one. He had neither a father nor a mother. However, he was not made a non-entity because of
any ideas of sin was involved in procreating such children, but the Roman family, the Roman society and the
Roman state were constituted in such a manner that he did not fit in anywhere. In an agnatic Roman family
such a child could not be related to the father, and, legally speaking, a woman under Roman law could not have
any descendants and therefore he could not be related to his mother.
With the emergence of the theory of cognation under the influence of natural law, all children, whether
legitimate or illegitimate, became cognated to their mother, having rights of maintenance and succession in the
property of the mother. Thus, the illegitimate children were given the status of the mother.1 This continued to be
the position till the end of the Roman period.2
Before the advent of Christian influence, obligation of the putative father to provide for the aliment was also
recognized and the putative father could make gifts to his illegitimate children.
With the coming into power of the Christian Emperors and the ideas of Christian morality, the institutions of
concubine and illegitimate children became a horror, a stigma. The first task which Constantine assigned to
himself was to discourage concubinage. Pursuant to that, he forbade all gifts to illegitimate children by the
putative father. The rights of aliment and of succession of illegitimate children were also done away with.
After Constantine, we find that only two categories of illegitimate children— adulterine and incestuous—were
denied all rights, while others were granted several rights against the putative father. Their right of aliment was
recognized. The putative father could also make some gift of his property.3
In the times of Justinian we find that the position of illegitimate children (liberi naturales) comes very near to that
of a dasiputra or a sudra under Hindu law. The liberi naturales have the right of support against both parents,
right of succession in the mother’s property and right of partial succession in the property of the father.4 Apart
from liberi naturales, the other illegitimate children were not recognized.
The doctrines which gave birth to the French Revolution proclaimed: “That all men are equally free and
independent.” The first thing which the convention did after the French Revolution was to uplift the illegitimate
child. The law of 12 brumaire, an II, with the exception of adulterine children, put all illegitimate children at par
with equal right of maintenance and succession and with equal status in the family. The adulterine children
were given full rights of maintenance and were entitled to 1/3 of what they would have got had they been
legitimate children. The parents were free to make any gifts to them. Thus, we find that for the first time in
Europe—or rather first time in the entire West— the illegitimate child was considered as a member of the family
of his father: in fact for the first time he existed in the family.
This ‘radical’ legislation did not find favour with the framer of the French Civil Code and he is relegated to an
inferior legal position. Apart from the filiation or recognition of the child which raises their status to almost
legitimate children,1 the illegitimate children are only entitled to aliment which should be in accordance with the
social position and status of the parents.2 Such rights are conferred on the adulterine and incestuous
illegitimate children also.3
The German Civil Code provides: “The illegitimate child has in relation to the mother and to the relatives of the
mother the legal position of a legitimate child.4 The status of legitimacy may be conferred by governmental
declaration.5 Apart from this, if parenthood is established by a judicial decree or by voluntary recognition, the
child has the right to support and maintenance.6 The father is bound to support the child till the completion of
sixteenth year corresponding to the conditions of the mother in life including maintenance, education and
training.7 The father’s duty to provide maintenance precedes that of the mother.8
The most radical provisions among the non-communist countries of Europe are contained in the Norwegian law
of 1915. Under that law the status of an illegitimate child in respect of both the parents is the same: an
illegitimate child is entitled to the name of both parents, he is entitled to maintenance, education, training and
support from both. The type of education and training that a child may have is determined by the situation of
financially better placed parent.9
Probably the most radical law in the non-communist world is found in some of the States of the United States.
Page 9 of 40
Arizonian law of 1921 provides “Every child is hereby declared to be the legitimate child of its natural parents
and as such is entitled to support and education to the same extent as if it has been born in lawful wedlock. It
shall inherit from its natural parents and from their kindred heirs lineal and collateral in the same manner as
children born in lawful wedlock.” If the father is married to another women, the only difference that exists is that
the child cannot claim to live with him. The State of North Dakota has similar law. Under the law of Mississippi,
a recognized illegitimate child is placed at par with a legitimate child. Other states follow the English common
law. A decision of the New York Court puts it very tersely: “Illegitimate children are not favoured by law and
have only such property rights as are expressly granted by statute.”1 The New York Domestic Law recognizes
the right of support and education of illegitimate children.2
Probably the most radical law in the communist world is that of People’s Republic of China. Article 15 of the
Marriage Law provides: “Children born out of wedlock shall enjoy the same rights as children born in lawful
wedlock. No person shall be allowed to harm or discriminate against the paternity of child born out of wedlock is
legally established by the mother of the child or by other witnesses or by other material evidence, the identified
father must bear the whole or part of the cost of maintenance and education of the child until it has attained the
age of eighteen.” Para third runs: “With the consent of the natural mother, the natural father may have the
custody of the child.” Thus, the distinction between legitimate and illegitimate children is attempted to be done
away with.
Equally radical has been the law of Soviet Union. Soon after the Revolution, it has been the policy of Soviet
Governments to remove all legal distinctions and differences between the legitimate and illegitimate children.3
Not merely this, the governments purported to wipe out all social stigma attached to illegitimacy and it was a
duty imposed on the courts to see this policy succeeded. The 1918 Code imposed a duty on the putative father
to provide maintenance to his illegitimate children.4 The 1944 law abolished the duty of providing maintenance
to illegitimate child of the putative father which was replaced by the state duty of providing education,
maintenance etc., for such children.
We find that the Family Codes of the East European countries do not go that far.5
5. Legitimation: Other Systems
The process of blurring distinction and differences between legitimate and illegitimate children has begun at a
fairly early time.
One method has been to confer status of legitimacy on children born under certain circumstances and could not
ordinarily be legitimate children. The early Hindu law recognized a class of sons known as ‘secondary sons’. In
some of these cases the father was not at all responsible for their birth: They were Kanina, Sahoda, Krita,
Pannarbhava svayam-datta and shaudra. Of these only the punnarbhava and Shaudra were the sons begotten
by the father. Even among the ‘primary sons’ he was not responsible for the birth of a majority of them. For
instance, the khetraja, the dattaka, the kritima, were not begotten by him, but in a sense he had accepted them
himself as his sons and therefore they were considered to be his sons and given the status of primary sons.1 In
a majority of cases these children were born out of lawful wedlock. In the later development of Hindu law all of
them became obsolete and were not recognized with the exception of aurasa, i.e., the legitimate son begotten
by one on his lawfully wedded wife, and the dattaka son or adopted son.
In the modern law also this method of conferring the status of legitimacy on children born in certain
circumstances has been used. Certain children born of invalid marriages have been made legitimate children
by legislation. Take for instance under the Matrimonial Causes Act, 1950, children of voidable marriages which
are annulled have been recognized as legitimate children.2 Under the Legitimacy Act, 1959, the children of a
void marriage have also been recognized as legitimate children provided at the time of the “Act of intercourse
resulting in the birth (or at the time of celebration of marriage if later) both or either of the parties reasonably
believed that the marriage was valid.3The Hindu Marriage Act, 1955, also confers status of legitimacy on the
child of voidable marriages which are annulled and the child of void marriages.4 But on such children an inferior
status has been conferred in-as-much as it has been laid down that such children can inherit the property of the
parents alone and of none else.5The same is the position under the Special Marriage Act, 1954.6
Another method of elevating the status of illegitimate children to that of the legitimate children came into
existence in Roman law known by the name of legitimation per subsequens matrimonium. The rule was first
introduced by Constantine in A.D. 335 as one of the methods to do away with the institution of concubinage.7
According to Justinian legitimation by subsequent marriage was possible whether the concubine was ingenua
or libertina provided the marriage was attested by instrumentum dotis or other writing, the woman was capable
of marriage at the conception or birth and the child consented.8 The other methods known to Roman law by
Page 10 of 40
which an illegitimate child could be legitimated were legitimation by imperial rescript9 and legitimation by
presentation to the Curia.10
The institution of legitimation by subsequent marriage of parent descended from Roman law to the Continental
Europe. Under the French Civil Code illegitimate children may be legitimated by subsequent marriage of their
parents provided the children were recognized before marriage.1 The institution of legitimation by subsequent
marriage of parents is also recognized in Germany,2 Italy,3 Spain,4 Japan,5 and some of the States of the
United States of America.6 Some States of south America also recognize the institution.
Although in Scot law the rule came into existence at an early time,7 in English law, legitimation by subsequent
marriage of parents came into existence by the Legitimacy Act, 1926. Under the Act it is necessary that the
father is domiciled in England or Wales at the time of marriage.8 The provision does not apply to children of
adulterous unions.9 The Royal Commission on Marriage and Divorce by majority recommendation declined to
extend the provision to the children born of adulterous union as, according to the majority Report it would ‘result
in a serious weakening of respect for marriage.10
In Indian law, or in the personal law of any community in India, legitimation by subsequent marriage of parents
is not recognized.
On the pattern of the Roman legitimatioes per rescriptum principis legitimation by acknowledgment or
recognition is recognized in several systems of law. In several States of Continental Europe, South America
and in some of the States of the United States of America a putative father is permitted to legitimate his child by
formally recognizing it to be his own child. The laws of Spain and Italy provide for legitimation by Royal
rescript.11 Under English law also Parliament can by passing a law legitimate a child.12
Under the French law either parent or both the parents may recognize the child. The effect of recognition is that
the child gets the right to use the name of the parent recognizing him, the child has the right of maintenance.
The parent and the child also have mutual rights of succession.13 But the child cannot succeed to the property
of the parent’s ascendants or his collaterals other than his natural siblings. However, recognition cannot be
made for the benefit of an adulterine or incestuous child.1 Thus, a recognized child is very much near a
legitimate child, though he has slightly inferior status.2
Under the German Civil Code a father who states in his petition that he recognizes the child as his own may
obtain a governmental declaration declaring an illegitimate child as legitimate.3 Under the Code it is immaterial
that in fact the petitioner is not the father of the child,4 but in every case consent of the guardian or the child
and also of the mother, if the child is under twenty-one, is necessary.5 However, such a declaration cannot be
made if at the time of the conception of the child the marriage of its parents could not legally take place.6
It is interesting to note that the provision of recognition of illegitimate children under the 1964 Code of Family
Law of Communist Poland are very much akin to the German Civil Code. Under the Polish Code a child
recognised by the putative father is approximated to the status of a legitimate child. The Code provides a
prescribed form and consent of the mother or guardian is also necessary.7
Mohammendan law confers legitimacy on a child, by acknowledgment of him as his child by the father. The
Muslim doctrine applies to cases where the legitimacy of a child is uncertain. If he is known to be an illegitimate,
the doctrine does not apply. In other words it applies only to cases where either the fact or the exact time of the
alleged marriage is a matter of uncertainty, that is neither proved nor disproved.8 It is required that the
acknowledgement must be not merely as a child but as a legitimate child, the age of the child and the person
acknowledging should be such as to admit of the—acknowledged being the father of the child, the child must
not be an offspring of zina, incest or fornication, the child acknowledged must not be known to be the child of
another and the acknowledgment must not be repudiated by the child.9
6. Clause (c); Minor Wife
It has been a curious development in some system of law that the husband is considered to be the natural
guardian of his minor wife. The concept owes its origin to the notion that a woman is never free and must
remain in perpetual subjugation by the father, before marriage and of the husband, after marriage.10 That
social order had gone and faded, yet the old notions linger on, sometimes in mutated form.
The great Hindu sage Manu1 declared that a woman is protected by her father during maidenhood, by her
husband, during coverture, and by her sons during widowhood—a woman is never free.2
Page 11 of 40
In the modern Hindu law it is well-recognized that the husband is the natural guardian of his minor wife.
However, there is no direct textual authority on the proposition that the husband is the natural or otherwise
guardian of his minor wife. The entire law or guardianship of the minor wife has been evolved from two texts,
the one is of Narada and the other is of Manu. The text in the Narada Smriti runs as follows:
When the husband is deceased, his kin are the guardian of his childless widow. In the disposal of the property and
care of herself as well as her maintenance they have full power. But if the husband’s family be extinct, or contains no
male, or be helpless, the kin of her own father are the guardian of the widow—if there be no relations of her husband
within the decree of Sapinda.3
The text in the Manu-Smriti runs:
The father protects a woman during her maidenhood, her husband protects her during coverture, sons protect her
during widowhood: a woman is never free.4
After quoting these texts, West and Buhler said that the perpetual subjugation assigned to be woman is
accompanied by an indefeasible claim to nature, shelter and gentle usage. Posing the question: Who is to
satisfy this claim? They answer it: “Primarily the family she has joined, not the family she has quitted. Thus, the
right to duty of guardianship over a female is vested, after marriage, in the husband, his son and his sapindas
successively.5 Macnaughten, another important authority on Hindu law during the British administration of
Justice in India, observed: “The guardianship of a female (whether she be a minor or adult) until she is
disposed of in marriage rests with her father; if he be dead, with her nearest paternal relations. After her
marriage a woman is subject to the control of her husband’s family. In the first instance her husband is her
guardian; in default of him, her son, grandsons and great grandsons are competent to assume guardianship.1
Probably on account of the authority of such eminent writers as West and Buhler and Macnaughten, when the
question came before the courts, it was accepted without much discussion that the husband is the natural
guardian of his minor wife.2 In 1890, the question came up for consideration before the Calcutta High Court, in
In the matter of Dhuronidhar Ghose,3 where a father forcibly took away his minor married daughter from her
husband’s house. The court said that since the husband was lawful guardian of his minor wife, the father’s act
of removing the girl from the lawful custody of the husband amounted to kidnapping, even though the father
might not have any criminal intention. In Surajmani Dasi v. Kali Kant Dass,4 the husband filed a petition for
restitution of conjugal rights against his minor wife who was living with her father. Granting a decree to the
husband the court said that the husband being the lawful guardian of his minor wife is entitled to her custody,
and the court added, it would be useless to argue that he is not entitled to a decree for restitution of conjugal
rights on the ground that the wife is too young.5 That this is so was accepted by the other High Courts too. In
Arumuga Madaliar v. Virargahva Muduliar,6 after quoting some authorities.7 The Madras High Court said:
“There is no doubt according to the authorities to which our attention has been drawn, that the husband is the
legal guardian of his wife from the moment of the marriage, whether the marriage is consummated or not.”
The Madras High Court sitting in full Bench has heavily come against this provision in T. Sivakumar v. Inspector
of Police, Thrivallur Town Police Station.8 The court has held that if husband of a female child is allowed to act
as her guardian it would amount to give premium to the offence committed by male. When the law (Prohibition
of Child Marriage Act 2007) aims at eradicating child marriages declaring the adult male who has perpetrated
the offence of marrying a female child as her guardian would defeat the very object and purpose of the law.
Coming very heavily against this provision the court said—
“A law cannot be interpreted so as to make it either redundant or unworkable or to defeat the very object of the Act.
Thus by committing an offence under section 9 of the Act, the adult male cannot acquire the legal status of natural
guardian of a female child. Section 6(c) of the Hindu Minority and Guardianship Act must be held to have been
repealed impliedly by the Prohibition of Child Marriage Act. Therefore, an adult male who marries a female child in
violation of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child.”
This case was under Prohibition of Child Marriage Act and we laud this ruling.
The husband’s position as guardian of his minor wife was statutorily fortified by the Guardians and Wards Act,
1890 which lays down that the court has no authority to appoint any person as a guardian of a minor married
girl whose husband is not unfit.1 This provision has given rise to some difficulties of interpretation. In the
modern law whenever a court is called upon to determine questions relating to guardianship or custody of
Page 12 of 40
minors, whether married or unmarried, it is required to balance, the right of guardianship and custody on the
fundamental principle as to whether doing so will be in the welfare of the minor—the welfare of minor being the
paramount consideration. If the court comes to the conclusion that granting of custody of a minor to its lawful
guardian will not be in its welfare, then despite the right of the guardian to have the custody the court will not
commit custody to the guardian.
In some cases the trend has been to give effect to the guardian’s rights. The Lahore High Court said that no
one else could be appointed guardian of a minor married girl, unless her husband was found unfit.2 This view
was taken by some other High Courts also.3 On the other hand, in some cases the courts have given effect to
the welfare rule. Bhagwan v. Ram Chandra,4failing to get the custody of his minor wife by a civil suit, a husband
filed an application for her guardianship and custody under the Guardians and Wards Act, 1890. The wife was
nearing the age of majority and did not desire to go to her husband. The court said that though it is not for the
welfare of grown up wife to live a life of celibacy, yet to compel her to live with her husband against her wishes
will conduce to her unhappiness and such a life will be worst form of bondage known to the world. Similarly, in
Asi Bai v. Girdhari Ram,5here a husband on the dismissal of his suit for restitution of conjugal rights, filed a
application for custody under section 25, the Guardians and Wards Act, 1890, the court observed that the
provision of the Statute could not be used to get possession of the person of the minor wife. Other High Courts
also have taken this view.6
Thus, in cases coming under the Guardians and Wards Act, 1890 the courts started on the assumption that the
husband is the natural guardian of his minor wife—they drew this inference from section 19(a) which lays down
that no one else can be appointed the guardian of a minor married girl, unless her husband is found unfit and
granted his custody, whenever they came to the conclusion that his rights are to be given effect; at the same
time they refused to enforce the husband’s right whenever they thought that doing so will not be in the welfare
of the minor wife.
The proposition that the husband is the natural guardian of his minor wife has been given statutory recognition
by the Hindu Minority and Guardianship Act, 1956.1 The husband is natural guardian of the person as well as
the property of the minor wife.1 But the husband will not be entitled to guardianship of his minor wife if (a) he
has ceased to be a Hindu, or (b) has completely and finally renounced the world by becoming a hermit
(Vanprasthi) or an ascetic (Yati or Sanyasi).2 If the husband himself a minor, then he can still be the guardian of
the persons of the minor wife, though he cannot be the guardian of her property.3 Further, the court has been
empowered to deny guardianship of the minor wife to the husband, if it is of the opinion that his guardianship or
custody will not be for the welfare of the minor wife.4
In a society like ours where arranged marriages still abound, and where minor girls are still given in marriage,5
we have to consider carefully whether it would really be right and in the social interest, to lay down that on
marriage the minor wife ceases to be in the custody of her husband. At one time the prevailing notion was that
on marriage the dominion of the father over the daughter passes to her husband. This principle has no sanction
in modern law. The primary and the fundamental question is: Will it be for the welfare and in the interest of the
minor wife that on marriage the parents should cease to the guardians of the minor daughter and the husband
should become the natural guardian of her person as well as property. It is submitted that on marriage the
parents of minor girls should continue to be the guardians of the person as well as the property. This does not
mean that the husband will not be entitled to the society of his wife, though this does mean that he may be
denied custody wherever the court comes to the conclusion that it would not be for the welfare of the minor wife
to live with her husband.
In the modern law, the husband can claim the guardianship and custody of his minor wife alone, he has no right
to claim guardianship of his major wife. Nor is he entitled to her custody. Here we are not concerned with his
right to claim restitution of conjugal right.
Under Hindu law when a husband is entitled to claim his minor wife’s guardianship, he can also claim her
custody. But whenever a guardian claims custody of a minor child, the welfare of the minor is the paramount
consideration. Where a husband ill-treates his minor wife or neglects his wife, the court can refuse to give him
custody of his minor wife. In Gandi Kota v. Pydimarri S. Santa,6 the husband claimed the custody of his minor
wife aged 17 years, through a writ petition. The wife was intelligent, educated and capable of thinking for
herself. She expressed her unwillingness to go to her husband. The court declined to give custody to the
husband.
7. Minor Widow
The source for the guardianship of the minor widow are the same texts as those on which guardianship of
Page 13 of 40
minor wife is based. Since wife totally passes into the gotra of her husband, on the demise of her husband, she
remains in his family and does not revert to her father’s household, on this conceptual basis, it was logical to
propound the view that husband’s nearest sapindas would be the guardian of a minor widow. Thus on the basis
of these texts Mayne observed:
The husband’s relations, if any exist within the degree of a sapinda, are the guardians of a minor widow, in preference
to her father and his relations.1
Trevelyan states the law more fully:
After the husband’s death, the guardianship of his minor widow and the management of her property, devolves upon
those who are entitled to inherit his estate after her death in preference even to her father.2
The judicial pronouncement to-date are also to some effect.3 Devodass and Mackay JJ., explained the principle
underlying the rule thus:
By marriage a girl passes into the family of her husband. Her husband’s gotra thereafter becomes her gotra and her
husband’s sapinda becomes her sapindas as she becomes one with the husband, as a matter of course that the eldest
among the nearest sapindas of her husband becomes her notion of the merger of the identity of the wife in the
husband.4
Backett, J., added that father of a minor girl ceases to be her guardian as soon as she is married, and on the
death of her husband, this right does not revive in favour of the father, but devolves upon the husband’s
relations.5
The guardianship by affinity was taken to its logical end by the Allahabad High Court in Paras Ram v. State.6In
this case the father-in-law of a minor widow along with some other persons forcibly took her away from her
mother’s house and married her for money to another person against her wishes. The question before the court
was whether the father-in-law was guilty of removing the girl forcibly. The prosecution was launched under
sections 143, 363 and 366 of the Indian Penal Code. The Allahabad High Court held that the father-in-law, was
not guilty of any offence in taking her away forcibly and since under the custom of the caste such marriages
were valid, he had the right to give away the girl in marriage even on receipt of money.
In Tola Ram v. Ram Charan,7 a distant relative of the husband of a widow applied for the appointment of
guardian of the person of the minor widow who was living with her father. The court said that the welfare of the
minor widow was of paramount consideration and therefore, it would not be in the welfare of the minor girl of
twelve or thirteen that she should be relegated to the guardianship of a distant relative of her husband, when
she has been happily living with her own father. This case was considered by the court in Paras Ram v. State.1
The court said that had the question before the court been of appointment of the father-in-law or mother as
guardian of the person of the widow, it might have considered that the suitability or otherwise of the proposed
guardians, but that not being the question and the father-in-law being the legal guardian of the daughter-in-law
he could not be convicting for kidnapping her.
But does the decisions in these cases lay down that after the death of the husband his nearest sapinda
automatically becomes a guardian by affinity of the minor widow? or whether, under Hindu law, the nearest
sapinda is merely entitled to guardianship of the widow, i.e., he has a preferential claim, and therefore, unless
he is appointed a guardian by the court, he cannot act as guardian?
The cases referred to above seem to subscribe the former view. But in some cases the later view has also
been taken. In Eithivulu Ammal v. Pathakkat,2 the court said that after the marriage of a minor female, her
guardianship is transferred to her husband and on the demise of the husband, no other person is entitled to act
as de jure guardian.3
The Madras High Court in Rai Chand v. Sayar Bai,4held that under section 13, the Hindu Minority and
Guardianship Act, 1956, in the appointment of any person as guardian of a Hindu minor the welfare of the
minor shall be the paramount consideration. The fact that under Hindu law, father-in-law has preferential right to
be appointed as guardian is only a matter of secondary consideration which shall give place to the primary and
paramount consideration, namely, the welfare of the minor. The court said that the interest of the father-in-law
being adverse to the minor widow, it was not in her welfare to appoint him as guardian.
Page 14 of 40
In Mst. Kusubai v. Ganndrabhaga,5 the Nagpur High Court observed that in the case of a minor widow, the
relations of her de jure husband are entitled to the guardianship in preference to her paternal relations; but this
preference does not confer the status of natural or legal guardian on husband’s relations. The court added that
the right of any such person to act as guardian depended not on his relationship through the husband, but on
his or her appointment by the court as guardian. The court held that the major widow was not a legal guardian
of her minor co-widow and therefore, she cannot bind the minor co-widow by a surrender of the estate made by
her on her own and on behalf of the minor co-widow.
It is submitted that the Nagpur High Court is more in consonance with the welfare of the minor than the view
that the nearest sapinda automatically becomes a de jure guardian by affinity. Paras Ram v. State illustrates
the danger inherent in following the other view. In our submission the sensible view could be that she again
passes in the natural guardianship of her parents.
Derrett suggests that if the minor widow chooses to live with her husband’s family, the guardianship should
belong to the nearest sapinda of the husband, but if she goes to her parents house and shows no disposition to
return to her husband’s house, notwithstanding that she has received a share, in lieu of a share, a maintenance
allowance from her in-laws guardianship should be with her parent.1In our submission, if we accept this line of
argument of the Madras and Nagpur High Courts, it would mean that whosoever (whether father or father-in-
law) claims guardianship, he will have to seek appointment from the court. If it were so, then there is nothing
like guardianship by affinity; at best it is a preferential claim of guardianship of widow’s relations both on the
side of her husband and her father. If that is what Derrett means, its vagueness would not allow it to work.
Suppose a minor widow lives in the house of her in-laws, say for a month or so after the death of her husband
(widows usually live up to that period) and then goes to live with her mother and refuses to return. The father-in-
law alleges that she has been detained by her mother to whom she went to pay a visit and files a petition under
section 25 of the Guardians and Wards Act, or files a writ of habeas corpus for the recovery of custody,
claiming to be her lawful guardian. Or, suppose he removes her forcibly and gives her away in marriage (as
happened in Paras Ram’s case). If he is deemed a guardian by affinity, in both the cases he succeeds. The
court may ascertain the wishes of the child and may refuse custody to do so will not be in the welfare of the
minor widow. But how will it determine the shifting of guardianship of the minor widow, as she may choose to
live for sometime with her mother sometime with her father-in-law sometime with her father, sometime with her
mother-in-law?
However, even after the Hindu Minority and Guardianship Act, 1956, the guardianship by affinity exists since
the Act does not abolish it.
It is submitted that the guardianship by affinity should be abolished, section 6 of the Hindu Minority and
Guardianship Act provides that father/mother will be the natural guardianship of unmarried minor girl and the
husband will be the natural guardian of the married minor girl. On the dissolution of marriage, a married girl
acquires the status of an unmarried girl and the parents, become the natural guardians of their daughter. For
instance take the case of a divorced minor girl, neither her husband nor anyone else in his family can be given
the guardianship of the minor girl because their marriage is dissolved and she has acquired the status of
unmarried girl and she will revert to the unmarried status and simultaneously the guardianship also seems to be
in consonance with the idea of the welfare of the minor. Besides, if the suggestion that the guardianship should
continue with the parents even after her marriage, this question of minor widow’s guardianship will not arise at
all. As has been submitted earlier, both the mother and the father should be equal and coordinate guardians of
their children.
8. Proviso to Clause (a): Custody of Children below the Age of Five
Proviso to clause (a) of the section lays down that ordinarily the custody of children of tender years will be with
the mother. The tender age is considered to be upto the age of five years. This is a mandatory provision,
qualified by the word “ordinarily”. The rationale of this provision is that since father is the guardian of all his
children, a special provision for child of tender years is needed. It is mandatory in the sense that upto the age of
five the child must be committed to the custody of the mother. Obviously the mother is the only person who can
take care of a child of tender years. Even before the enactment of the Hindu Minority and Guardianship Act, our
courts have taken that view.
As early as 1917, the Punjab Chief Court held that a child of tender years should be in the custody of the
mother.1 In this case parties were Muslims. The same view has been expressed where parties have been
Hindus.
Page 15 of 40
The Bombay High Court in Tara Bai v. Mohan Lal,2 said that a boy of seven years would be much better if living
with his mother than with his father. Beaumount, C.J., in Saraswathibai v. Sripad,3 said:
...........If mother is a suitable person to take charge of the child it is quite impossible to find an adequate substitute for
her for the custody of a child of tender years.
Das, J. of Calcutta High Court, in In re, Kamal Rudra,4 said:
I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that at between father
and mother, other things being equal, child of such tender age should remain with mother.
The conversion of mother5 or her being out-casted6 does not matter. Sinha and Mathur, JJ. of the Allahabad
High Court said that for children of tender years, “mother is the only proper custody”.7 A non-Hindu mother of a
Hindu child of tender age is entitled to its custody.8 The Madras High Court said, “It is impossible to find out an
adequate substitute for her”.9 In these cases children were between two and five years. In Samual v. Stella,10
the court again reaffirmed its view by saying that since it is the mother who could have the interest of the minor
most at heart, the tender year of the child needing the care, protection and guidance of the most interested
person, the mother has come to be preferred to others. The court gave custody of a female child of thirteen who
was delicate in health to the mother.
The Patna High Court in Bhola Nath v. Sharda Devi,1 said, ‘the affection, love and sympathy which the child
requires cannot be given by the father in the same measure as can be given by the mother, especially when the
child is aged only about two years or little more.2
In Gohar Begum v. Syggi,3 the Supreme Court has confirmed this view. In this case one Gohar Begum had
several illegitimate children including a daughter by name Anjum from one Trivedi whose exclusive keep she
was. Gohar Begum had allowed her maternal aunt, Kaniz Begum to take Anjum with her to Pakistan. On the
return of Kaniz Begum to India, she refused to restore the custody of Anjum to Gohar Begum. In these
circumstances Gohar begum sought a writ of habeas corpus for the custody of the child. At the date of the writ
petition Anjum was less than six years. The Supreme Court allowed the writ petition and made directions to
Kaniz Begum and others to make over the custody of Anjum to her mother.
We would dwell further on this aspect of the matter in our commentary on section 25, the Guardians and Wards
Act in Part III of this work.
9. Upto Five Years
The proviso says that the mother is entitled to the custody of the child upto five years: As has been submitted
earlier, this is a mandatory provision and ordinarily the mother must have the custody of the child upto that age.
But there is no mandatory provision (in fact there is no provision) that thereafter father must have the custody of
the child. As a natural guardian of the child he may claim the custody of the child and ordinarily he may get it.
But no court of law is bound to give him custody. The question will be decided on the basis of the welfare of a
child if the court feels that it is the welfare of the child the mother should continue to have the custody there is
nothing to prevent the court from committing custody to the mother. There is nothing in law which obliges our
courts to give the custody of the child to the father just because the child has attained the age of five years.
In Subbaswami Goundan v. Kamakshi Ammal,4 the husband, as natural guardian, claimed the custody of his
minor wife aged 13 years. In this case the court found that the wife was tutored to say that she did not want to
join her husband. Despite this, the court observed:
If however this declaration of the wife that she was not willing to return to her husband were true, then we would have
to consider what the duty of the court is. Whilst it is quite unnecessary in our view of the circumstances to consider that
in the case of a girl of only 13 years of age her consent or otherwise is quite immaterial. What we would have to
consider would be the welfare of the minor wife and including so the fact that she prefers to reside elsewhere than with
her husband although had she been old enough to form a good opinion this would have been a very important
circumstance for consideration, would not in our view be entitled to very much or any weight at all”.
The court declined to give custody to the husband. This decision was followed by the Madras High Court in
Venkataramanish Chetty v. Pappamah,1 where the girl was 13 years old. In this case it was alleged in that case
that the mother of the girl had taken her from the husband’s house and had broken a promise to send back the
Page 16 of 40
wife and was contemplating to leave for Rangoon. The learned Judge observed at the same time that as the girl
was admittedly a minor,2 “thus court should have, as the paramount consideration, her interest and welfare”. In
Bhola Nath v. District Magistrate,3 the Punjab High Court said that ordinarily the court would not interfere with
the parental right to custody, but welfare of the child being paramount consideration, that matter would be
decided on that basis.
Custody to a third person.—For the welfare of the child custody can be given to a third person.4
In Ravi Kant Keshri v. Krishna Kumar Gupta5 the father of a minor female child aged 2 years and 4 months filed
a writ of habeas corpus to obtain the custody of child who was residing with her maternal grand-parents ever
since the mother of the child died. Though holding that an alternative remedy provided by the Act is no bar, the
court denied custody of child to the father taking into consideration the welfare of the child. In a case6 where
the mother had deliberately left the husband and was having an illicit relationship and further there was a tape
recorded statement of hers that she would not sacrifice her life for children, custody of a child under 5 years
was denied to the mother.
“Ordinarily”.—Proviso to clause (a) the section lays down that “ordinarily” mother is entitled to the custody of
the child upto five years. This means that in the normal circumstances the mother cannot be denied the custody
of the child. But if the circumstances are extraordinary, the mother’s right of custody may be denied. Thus, for
instance, if mother is of unsound mind having aggressive behaviour and thus not able to look after the child or
her custody may cause danger to health, limb or life of the child, or if she is suffering from consumption, the
mother may be deprived of the custody of the child who has not completed the age of five years. It has been
further clarified that word “ordinarily” does not mean “necessarily”. Where the mother had left the house of
father after one month of the birth of child to live with her paramour she could be denied custody of the child.1
In short, if the mother is found totally unfit to take care of the child of such tender age, then alone she can be
deprived of the custody of the child. In other words, a very strong case to deprive the mother of the custody of
the child has to be made, otherwise the provision is mandatory. In nature no one is better equipped to look after
the child of tender years than the mother.
When mother applies for custody of the child under the proviso to clause (a), under section 25, the Guardians
and Wards Act, should she apply for appointment of herself as guardian? This question came before the
Madras High Court, and the court said that she need not seek her appointment as guardian, she can seek for
custody under this section read with section 6(a), the Hindu Minority and Guardianship Act.2
10. Custody and Guardianship: Conceptual Parameters
Till early 20th century custody was considered to be part of guardianship. If a person was guardian of a minor
child, he was entitled to custody of the child as a matter of right even if the child was of tender age, at the
breast of its mother. At that time it could not be visualized that custody could be had by a person other than the
guardian. It was because then guardianship was nothing but the extension of paternal power and custody was
inherent in guardianship. It could not split from guardianship.
The recorded history clearly shows that under Roman Law Patria Potestasr was all comprehensive and every
one in the household including children, minor or adult, were under it. It appears to be clear that in all the early
stages of patriarchal societies the paternal power, more or less of the same dimensions and magnitude had
existed. That this was so under early Hindu law is clearly indicated. It may be interesting to note that under
English law and Muslim law, the systems which came into existence at a later stage than Hindu law and Roman
law, we do not find that paternal power extending over adult children. May be in the pre-conquest England and
in the pre-Islamic Arabia such a power existed. But then under these systems the paternal power over minor
children has been as complete as under Hindu law or Roman law.
Here we would dwell briefly on the development of paternal power under Roman law and English law. In our
submission it would be easy to comprehend this development in our law if we know how from the totalitarian
concept of guardianship, the development of custody developed, giving new dimensions to the welfare
principle.
In the early period of Roman law the paternal control over the person and property of the children was total. A
Roman father had the power of life and death over the children. He could sell them or give them away in gift.
He could give them in marriage and he could effect a divorce between them. He could make a Will on their
behalf. Although he was liable for the wrongs of his children, but he could get over it by exercising his power of
noxal surrender. He was entitled to all their acquisitions. Maine’s apt observation2 that indeed the relationship
of sonship and serfdom differed little beyond the higher capacity which the child in blood possessed of being
Page 17 of 40
one day the head of a family himself, applies more vividly to this state of Roman law. What distinguishes
Roman paternal power from other systems is that it made no distinction between minor and major children.
At this stage of development paternal power guardianship, in the modern sense did not exist. Then
guardianship was conceived as an extension of paternal power over those minor children whose father was
dead. Then, it was concerned more with the protection of property than with the protection of the person.
In Rome every minor (i.e. below puberty) orphan sui juris was required to be under tutorship. It was remarkable
that tutorship terminated at such an early age as twelve for women and fourteen for men. The reason for the
termination of tutorship on the attainment of bare manhood or womanhood lies in the fact that originally
tutorship existed not for the protection of physically weak and intellectually immature person, but to protect the
interest of next heirs and, as soon as the young paterfamilias became capable of having his own children, there
remained no interest to be protected and hence tutorship came to an end. This seems to be the reason why
originally the authority of tutor did not exist over the person of the child, but only over the property. Tutorship
being thus conceived, it was very natural for Romans to hold that it terminated as soon as the child attained
physical capacity of becoming a parent himself. It was a later development of tutorship that it was also
considered as any institution meant for the protection of young children. Thus tutorship may be termed as
guardianship, but only in that limited sense.
Since females were not considered to be capable of having their own patria potestas, Roman law provided for
perpetual tutelage for them. The tutorship in their case terminated at twelve, when they could marry. If a woman
married in manu, she passed under the manus of her husband, and if she did not marry she remained in
perpetual tutelage. Gaius said: “Whatever the age and notwithstanding their marriage, if they are
females............according to our ancestors, even women who have reached their majority on account of their
levity of disposition, require to be kept in tutelage.”1 How much near he was to our Manu2Tutela mulierum, as it
was known, was originally exercised by the agnates of the woman.
Maine3 very aptly said that neither the tutorship nor the tutela mulierum was based on the slighest
consideration of public or private convenience. “The guardianship of male orphans was no more designed
originally to shield them till the arrival or years of discretion than the tutelage of woman was intended to protect
the other sex against its own feebleness.”
Romans later realized that having physical capacity to beget children and thus being able to have one’s own
potestas was one thing but to say that the young paterfamilias has attained full capacity was another. This
resulted in the emergence of another Roman institution-curatorship. A sui juris person who had attained puberty
was placed under a curator whose sanction cured the defect of minority for any act or contract of minor
paterfamilias. The minor remained under curatorship till it completed the age of twenty-five years. However,
originally curatorship was also conceived not as an institution for the protection of the minor but to protect the
interest of the person who dealt with the minor. Then curator was appointed at the instance of the person who
wanted to have a dealing with the minor. It was later development that curatorship was also considered to exist
for the protection of the interests of the minor. The perpetual tutelage of woman was also replaced by beneficial
guardianship. Finally we find that during the time of Justinian, these twin institutions—tutorship and
curatorship—came very close to the modern concept of guardianship.
We find that till the end of Roman law, Romans could not conceive of the idea of guardianship during the
lifetime of the father. Nor could they think of calling the father as guardian, natural or otherwise—in any sense
of the term— of his children. The paternal power continued to exist over the child till the death of the father. The
state has no right even to peep into, much less to transgress, in the household of a Roman. Roman family was
outside the domain of public law. Under these circumstances it was impossible to conceive of a situation when
a guardian could exist during the lifetime of the father. The Romans would have laughed at the idea of the
father—the great paterfamilias—being called a natural guardian.
In the next phase of human progress we find that paternal power gradually lost its rigour, its wings were
trimmed. The Roman law and Hindu law portray this process very vividly.1
At Rome during the early Roman Empire the process began and it culminated during the period of Justinian.
Augustus authorized a person to hold his military pay as his property.2 Constantine authorized by legislation the
state officials to hold their salary as their own property.3 Justinian permitted descendants in power to hold as
their own any property coming to them from any source excepting that from his father.4 However, the father
was still permitted to have a life-user of such property.
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Similarly, paternal power is gradually curtailed over the person of the children. Constantine finally abolished
paternal power of life and death, which could, in his times, be exercised only by the state. Sererus forbade
corporal chastisement. Only corporal chastisement that remained was by moderate flogging. Constantine
forbade the paternal right to sell the children, except in case of extreme poverty. The power to dictate marriage
and divorce was done away with by Marcus, Aurlius. The father only retained a conditional veto in the matter of
the marriage of his children.
Under English common law paternal control over adult children did not exist in any form. The English father had
very little control over the property and acquisitions of his children. He had only the right to their earnings, if
they were living with him. But, then, under common law the father’s control over the person of the minor
children has been almost despotic. Before 1939 it was an established doctrine that the father had absolute right
to the custody of his children and it was he who decided all questions of their up bringing, religion and
education. He had the right to inflict correction by personal or other chastisement. He has the complete right to
their services. During his lifetime no person—not even the mother—could interfere with the exercise of his
control.1 Law eulogized his rights by calling then, ‘sacred rights of the father’. Doctrine of paternal control was
so absolute and despotic that even access to children of tender years could not be given to mother contrary to
the wishes of the father.2
Under English common law guardianship was originally tagged with the tenure system. In the Knight’s service,
the Lord (or the King) was the guardian of the infancy heir’s property as well as of person. But if the father of
the infant-tenant was alive, the Lord could claim the guardianship of the property alone and not of the person. In
almost all the tenure guardianships, the guardianship existed specifically with a view to protect the property and
guardianship of the person was merely incidental and existed only in the absence of the father or the
testamentary guardian.
It seems that in feudal England guardianship being tagged with the tenure system, there was no scope left for
the emergence of an institution like tutorship. The Roman tutorship in its original form and guardianship by
tenure system has the same purpose in view: they existed to protect the interest of the person who would be
entitled to minor’s property in case the pupil or infant-tenant dies heirless. Something superficially resembling
curatorship did come into existence, but social conditions for the emergence of the Roman institution of
curatorship never developed in England.3
In our submission the outstanding feature of the English common law is emergence of guardianship of the
father. At common law, in its original and strict sense, the father was the guardian by nature of the infant heir-
apparent till he attained full age. He was also the guardian by nature of his infant children till they attained the
age of fourteen. However, the common law guardianship by nature and nurture was not guardianship in the
modern sense. It emphasised more the paternal power than any obligation of the father towards children. The
guardianship by nature or nurture was nothing but another name for the totalitarian paternal power. That
totalitarian common law power was further strengthened by statutes. He was empowered to appoint guardian of
his children by his Will, thus enabling him to exclude the mother from guardianship even after his death.
But side by side with the common law doctrine of absolute paternal power there also existed another doctrine
the kind as parens patriae was the supreme guardian of all children within the realm or owing allegiance to him.
It was this doctrine which was in later law very successfully used to curb and curtail the absolute and totalitarian
powers of the father.
How rigorously, and sometimes religiously, the paternal rights were enforced may be illustrated from some of
the early English decisions.1
The common law courts enforce the paternal right without any hesitation: King v. De Mannerville;2R. v.
Henrietta Lavina Greenhill3 and in re, Peason.4 In the former case the court refused to restore to the mother
the custody of a child who was at her breast and was forcibly taken away by the father. In the second case also
the father’s right was upheld. In the third case, the court restored the custody to the father of a child who was
living with a third person as his apprentice.5 At the beginning, even Chancery Courts hesitated to interfere with
paternal right. Vice-Chancellor Bacon called them ‘sacred right’ and observed that whatever might be the
court’s jurisdiction over children, it had no right to interfere with the sacred rights of the father.6 Again, the Lord
Chancellor in De Mannerville,7 showed the court’s reluctance to interfere with, what it called, ‘the natural and
legal rights’ of the father.
The Supremacy of paternal right was recognized not merely against a third person but also against the mother;
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King v. De Mannerville,8 In Takbot v. Earl of Shrewsbury,9 the Lord Chancellor said the mothers should know
that they had no right to interfere with the testamentary guardian. The English courts took this principle to the
logical end in Bell v. Bell,10 when they even refused to grant the mother access to her children, as the father
was opposed to it.
Such was the respect paid to the supremacy of paternal rights that even when the father had under an
agreement given custody to another person, it was said that the father could not abandon his rights and he
could revoke the agreement at any time and assume control over the children.11 In Vansittart v. Vansittart,12
the Lord Chancellor said that the father could not by an agreement divest himself of the authority which belongs
to him by nature. It was a later development when it was said that if the expectations were created by such
delegation, then they could not be frustrated by revocation of authority.
In the early period of Hindu law, the paternal power over children was as extensive as under Roman law. Like
the Roman father, it seems the Hindu father also had the power of life and death over his children. He could sell
them. He could give them in gift or marriage. He had the right of their exclusive user. He was entitled to all their
acquisitions. An injury to his children was an injury to him. By the time of Dharamsutras it seems that the
unbridled paternal power was fully established. Then, it seems that the paternal power was as complete over
minor children as over adult children, except that daughters on marriage, in any form, passed completely in the
household of their husband and the father was left with no control or power over them.1
Hindu law did not have anything like or near the institutions to curatorship or tutorship. It also seems to be clear
that Hindu sages did not talk of guardianship during the lifetime of the father. That society could not have
conceived of the idea of guardianship of children during the lifetime of the father. It could also have not
conceived the idea of calling father as a natural guardian or legal guardian of his children. In the early society
father’s near absolute powers over the members of his household, including the children, were fully and firmly
recognized, to call the father as guardian, natural or otherwise, would have been superficial, even derogatory to
his supreme and mighty position. Roman father was never called a guardian. Neither was the Hindu father.
When the patriarchal Hindu family got transformed into the Hindu joint family, the need of guardianship was not
felt, as it was felt under the Roman law on the demise of the father, as the karta of the family, enjoyed fairly
wide power. When the father was the karta all members of the family were under his control. On the death of
the father, the next eldest male immediately became the karta and minor members continued to receive the
protection of the karta. There was no break. Since under Roman law on the death of the pater familias the
family came to end and the minor sons themselves became pater familias the need of guardianship arose to
protect the young pater familias. Therefore, it seems, Romans evolved the institutions of tutorship and
curatorship. Among Hindus, so long as the family remained joint—and ordinarily it remained joint for a fairly
long time—there was no need for the institution of guardianship. This seems to be the explanation for a very
scanty law of guardianship that we had in our ancient law.
As distinguished from Roman law, Hindu law laid down a broad principle under which the king was enjoined
with the duty of protecting the property of minors and incompetents. It seems that it was in respect to orphans
who were outside the pale of joint family that the sages talked of king’s guardianship. Under English law this
principle—king as parens patriae—proved to be of great potentiality for developing paramountcy of the welfare
of children rule. But in the then Hindu society, it could not blossom, though this similarity in the principles of
Hindu law and English law, later on—during the British administration of justice in India—proved to be very
potential for the development of Hindu law of guardianship.
Like Romans, Hindus also talked of perpetual tutelage for women. Manu ordained: “The father protects a
woman during her maidenhood, her husband protects her during overture, sons protect her during widowhood:
a woman is never free”.1 And we find that for the minor widow our sages provided a guardian by affinity.
The paternal power underwent the same process of curtailment under Hindu law as under Roman law.
Gradually, a concept of self-acquired property developed. A modest beginning was made by laying down that if
a member of the family acquires property without any assistance from the joint funds then he could retain the
property as his own.2 What began as a right of mere retention was subsequently converted into the separate
property of the acquirer. Then it was laid down that one need not give up to his co-owners what one has gained
through science, by reading scriptures or by expounding their meaning; the acquirer shall retain such gains as
his separate property. To this was added the son’s birth right in the property.
Similarly, his power over person of children gradually suffered curtailment. In the post-Smriti period his power of
life and death came to an end. The father’s power of corporal chastisement continued but its rigour was
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mitigated. Manu said that if a son was found guilty of an offence he should be struck with a rope or by a
bamboo split. The Mitakshara limits this power by laying down that in no case the father should strike at the
head, and if the father transgressed this limit the son could complain to the king. The father’s power of selling or
making a gift of his children was abolished. Only power that survived was of giving the child in adoption: and
the giver and taker were prohibited from taking or giving anything in consideration of adoption. The father still
retained the right of giving his minor daughters in marriage.
Thus we find that in this stage of social development, all disabilities, of children not necessary for their
protection on account of young age were removed.
What may surprise one is that even in the modern law we find that the paternal power exists more or less in the
same shape and dimensions as it existed in the Roman law during the Justinian period. Under the modern
Hindu law, Mohammedan law, English law, Japanese law, German law and laws of almost all the countries on
the European continent and of the countries on American continents the father has the right of lawful correction
or moderate chastisement of his children. Under the Mexican Louisiana and French laws a child under age of
majority cannot ordinarily go out of the father’s house without his leave. The French and Japanese laws permit
the father to correct his children by having them imprisoned for a term not exceeding six months.3 The relic of
old paternal power is found in the marriage ceremony of the Church of England and of the Protestant Episcopal
Church wherein the father gives away the bride in the marriage. The same is found even in the modern Hindu
law where the father or the guardian in marriage still performs the ceremony of Kanyadanam.1 Under the
modern law of England,2 and also in the United States where the father (or any other person whose consent is
necessary) may still withhold his consent (though not improperly) to the marriage of an infant child.
The paternal power over the property of the minor children also resembles the Justinian law. Under the
German, Spanish and English law the father is still entitled to the use or to the usufruct of minor children’s
property. Under the Spanish law and the law of several states of the United States the father is entitled to the
earning of his children. Under Mohammedan law and the modern English law also the father is entitled to
earnings of his children provided the children are living with him.
The modern law still reflects the Justinian concept of paternal power in many respects. Even in the modern
laws of the East European countries the impact of the Justinian law is obvious.3 But there is a shift in
emphasis—and a very important shift. Today parental power exists in the welfare of children. It exists to enable
the parent to discharge their responsibilities.
The outstanding feature of laws of guardianship by the close of nineteenth century has been, as between the
father and mother, the dominant position of the father over the children. Mother did not have any say during the
life-time of the father. She might also be excluded from guardianship of her children even after the death of the
father. Either by law this was denied to her such was the position under Mohammedan law—or the father might
exclude her by exercising his testamentary power of appointing someone else as guardian—this was the
position under English law and Hindu law. Even the French Civil Code which vests ‘paternal authority’s jointly in
the father and mother lays down that the father alone shall exercise this authority during marriage.4 Under the
German Civil Code also the father’s dominant position was recognised, though in some cases paternal power
could be exercised only with concurrence of the mother.5 The West German Gleichbre chitigungagesetz 1957
vests the paternal authority jointly in both the parents.6
In early cases decided under the Raj, we find that the court recognised the dominant position of the father.
Ayyar J., of the Madras High Court said in Kumarswami v. Rajammal,7 that the guardianship of the father was a
right of which he cannot be ordinarily deprived. The Madras High Court took the view that the father being the
natural and legal guardian of his children has the paramount right of their custody.1 In Abdul Aziz Khan v.
Nanhe Khan,2 the Allahabad High Court said that the father has inalienable rights over his children. The
Calcutta High Court also in earlier cases emphasised the natural and legal rights of the father.3 The Lahore
High Court also called them ‘inalienable rights of guardianship and custody’.4 Even in the recent time the tenor
and tone continues to be the same.5
The common law principle that the father can always revoke his authority even when he has entrusted the
custody of his child to a third person under an agreement found its away in Indian law.6 The doctrine of
abandonment or waiver of parental rights was of later development.6
Under Hindu law when testamentary power of the father was recognized, the common law principles that the
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father could deprive the mother of the guardianship of the children even after his death by making a
testamentary appointment, was given effect.7
Thus, in this period guardianship was looked at more as a right than as an obligation both under the Indian law
and English law.
That guardianship is a right has also been the view of the jurists of the analytical school. As an illustration of
those rights in rem which are rights over persons and available against other persons generally, Austin cites the
right of the father and the right of the guardian to the custody and education of the child or ward. Austin says
that against the child or ward, these rights are rights in personam. In case the child or ward deserts the father or
guardian or refuses lessons of the teacher whom the father or guardian has appointed, the father or guardian
may compel him to return and may punish him for his laziness or perverseness. Looked from another aspect,
the learned Jurist said, they are rights in rem. They avail against persons generally and the duties to which they
correspond are invariably negative. As against other person generally, they are not so much rights to the
custody and education of the child or ward as right to the exercise of such rights without molestation by
strangers. Thus, in case the child or ward is detained by a stranger, the father can recover him from him; in
case the child is beaten or otherwise harmed injuriously, the father or guardian has an action against the wrong
against his interest in the child.8 Then in Lecture XLIV Austin refers to the difficulty of placing the condition of
the father and child or of the guardian and ward in the realm of public law or private law.9
Austin makes no distinction between rights of the father and rights of the guardian. He does not talk of
guardianship in terms of obligation. According to him guardianship implies rights and not duties. He also does
not make any distinction between guardianship and custody. To him, custody is the logical concomitant of
guardianship.
Holland also considers the parental right of custody and control of children from the same two aspects. The
parental right is infringed by an act which interferes with the control of a parent over his children, or with the
advantage which he derives from their service.1 This is the parental right in rem, as Holland puts it. The
parental right in personam exists over the children. “A parent acquires on the birth of a child a right, which he
may enforce by moderate chastisement or restraint for controlling his actions while of tender years.2 He says
that the relation of guardian and ward is an artificial imitation of that of parent and child and is entirely regulated
by law.3
Thus, according to Holland also guardianship as a jural concept is a ‘right’.3
At English common law as well as in the Indian law, the guardianship was considered as a civil right which
could be enforced by civil suit. On account of availability of speedier remedies at common law and at the Court
of Chancery, the remedy by way of suit became obsolete in England, and in India also this remedy is not in
vogue. “The old common law courts”, said Jacobs and Geobels, “were concerned primarily with property rights
of families, and consequently it was in relation to the infant’s connection with property that remedies were
evolved. Custody, therefore, was initially an incident of guardianship of lands, a right which was conceived to
inure to the benefit of the guardian.4
That guardianship was regarded a ‘right’ finds expression in the parental right of action for the loss of services
of the child and in the parental right of action for seduction of the minor girl. Holland,5 opined: “The much
abused English action for seduction is quite in harmony with legal principles. The person wronged is not the girl
herself, who ex-hypothesi has consented to the act, but her parent, or persons entitled to her services, who is
damnified by its result.”6 The parental action for loss of the services, of the child is akin to a similar action by
matter for the loss of services of a servant. In fact the theoretical basis of both are the same.7 Paternal claim,
i.e., action for seduction for violation of chastity of female child is supported on the same basis. The result is
that if the child is too young to be capable of rendering any services, no action can be filed by the parent.1
Similarly, if the child’s death is not impaired by pregnancy, confinement or mental agitation, no action can be
maintained; not merely the impairment of health has to be shown but also that on account of impairment of
health there has been an interruption of services which the child would have otherwise rendered.2 “On the
whole”, Professor Winfield said, “the courts have done their best to reduce the requirement of ‘service’ to
something very like a fiction and have also indirectly taken amount of the real wrong which is inflicted, by
encouraging Juries to give exemplary damages against the defendant in cases of seduction.”3 Thus, making of
a cup of tea for the parent,4 or milking of a cow,5 or the mere possibility that child might have rendered
services6 have been held sufficient. The same fictitious approach is evident in respect to the wrongful death of
the child.7 Despite the hold effect on the part of courts, the remedy after all rests on an archaic principle which
can be twisted only to an extent. The wrong being essentially against the parent for the loss of the services of
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the child, if the child was in the service of the third person who is entitled to entire service of the child, the father
cannot maintain any action.8 If seduction took place during the life-time of the father and died without filing an
action, the mother cannot file an action.9
Before the amendment of 1976, under Hindu law a minor girl, who had completed the age of fifteen years had
capacity to marry, though consent of the guardian was necessary. But if consent was not obtained the marriage
was valid. However if a love marriage between a minor girl and a major boy is performed without the consent of
the guardian and the girl does not take any initiative but allows the ceremony to be performed, the bridegroom
may be guilty of kidnapping.10 An action for seduction has not yet been tried. It is submitted that if an action for
kidnapping can succeed, an action for seduction may as well succeed.1
Professor Winfield suggests, “the ground on which any remedy of this kind ought to be based is the outrage or
injury to the parent as head of family.2 Dr. Stone also observes: “Thus violation of a female child’s chastity
clearly invades a most important parental claim.”3 Pound seems to take the same view: “The chastity of a
female child........is so intimately connected with the honour of family and self-respect and mental comfort of the
parent, that the interest in maintaining it is asserted as a phase of the parent’s interest of personality.4 In our
submission when the child is mature enough (though still a minor) and goes with its own free Will to the seducer
why at all such a claim or interest of the parent should be recognized or protected. In those cases where the
child is immature it may amount to rape and appropriate criminal action should be maintainable. If it does not
amount to rape it may amount to ‘outraging the modesty’.5 In our submission in every case the wrong (when it
is considered wrong) or crime should be considered to have been committed against the child or against the
social values and not against the parent. The ‘child’ for this purpose should not be considered as a chattel in his
father’s household. The child as such should have a right to file appropriate action in a court of law.
At this stage of development, guardianship also implied an absolute parental right of custody so much so that
no other person could be given custody or even access contrary to the wishes of the parent.6
Before the Talford’s Act, 1839, the English common law has consistently denied custody and access to any
other person, including the mother, as against the father who was considered to be the legal and natural
guardian of his children.7
A clear illustration of how custody has been considered as a concomitant of guardianship is found in Indian law
in section 25, the Guardians and Wards Act, 1890. Under that section, ‘if a ward leaves or is removed from the
custody of guardian of his person, the court...........may order for his return’. The section has been interpreted to
mean that only a guardian can apply for custody of child and if a person has no right of guardianship he cannot
be given custody.
In Mst. Chandra Kaur v. Chottey,1 the mother claimed custody of her minor son without claiming guardianship.
Dalal, J.C., faced with the predicament said: “I do not see how the appellant without being appointed guardian
can claim custody of the child. If she wants custody of the child the proper procedure for her would be to apply
to the court of District Judge for a certificate of guardianship. Daulat, J., had the same hesitation in Rattan Amol
Singh v. Kamaljeet Kaur.2 The same difficulty was faced by the Calcutta High Court in In the matter of Kamal
Rudra (a minor)3 and the court had no other alternative but to use its powers under Letters Patent to award
custody to the mother who was not the guardian of her child. In Mst. Prem Kaur v. Banarsidas,4 the Lahore
High Court solved the difficulty of granting bare custody to the putative father by giving a wide interpretation to
the word ‘guardian’. The court said that any person who has the ‘care’ of the child is the guardian and could
apply under section 25. In Lovejoy Patel,5 the court reluctantly appointed a person as guardian to whom they
thought it would be in the welfare of the child to be given the custody of the child.
The position remains the same even in the modern Indian law. The Hindu Minority and Guardianship Act, 1956,
also does not contain any provision under which the question of bare custody could be agitated.
The only inroads that could be made on the absolute right of the father at the common law were: recognition of
the principles that if the father grossly misconducted himself he could be deprived of his right,6 and the
development of the doctrine of waiver of right or of abandonment of right. More or less the same development
took place in Indian law.
In R. v. Henrietta Lavina Greenhill7 the court said that the father’s right would be enforced unless it was
attended by danger to the child, such as where there is an apprehension of cruelty or of contamination or of
some exhibition of gross profigancy. In Shelly v. Westbrook,8 the court said that the father could be deprived, of
custody only for gross misconduct, “for rendering himself grossly unfit.9 In In exparte Firm10 the court said that
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the father could be deprived of his rights only when he had placed himself in such a position that it was
‘essential’ for children’s safety in ‘some important and essential respect.’ And the learned Vice-Chancellor
added that ‘if the word ‘essential’ is too strong, it is not much too strong.”
Under the Indian law, the Guardians and Wards Act, 1890, enacts a specific provision in section 19 to that
effect: the father cannot be deprived of the guardianship of his children unless he is found unfit.
The doctrine of waiver of right operates in the circumstances where the father allows his child to be brought up
by another and permits their maintenance and education supplied from that source and thus creating
expectations in the mind of the child, then he cannot be allowed to frustrate those expectations by revoking his
authority.1 Similarly, where under an agreement the father allows a third person to bring up the child, and thus
creating expectations, he cannot be permitted to assert his rights.2 There is also another line of cases, where
there is no express agreement between the father and the third person, but the father’s conduct amounts to
abandonment of his rights.3
Their Lordships of the Privy Council in Annie Beasant v. Narayaniah,4 after stating the principle that the father
can revoke his authority, defined the doctrine thus: ‘if the authority has been acted upon in such a way
as...........to create association or give rise to expectation on the part of infants which could be undesirable to
their interest to disturb or disappoint, the court will interfere to prevent its revocation.’ In the words of the
Calcutta High Court the court will not allow parents who have abandoned the custody of their children to third
persons, to attempt capriciously to re-assert their rights without showing that the welfare of the children
warrants or requires such action on their part.5
A beginning to curb and curtail and finally transform the paternal rights into obligations was made in the middle
of seventeenth century when the Court of Chancery began exercising the prerogative jurisdiction of the king
which was parens patriae. Gradually the protective jurisdiction of the Court of Chancery as supreme guardians
of all children developed and undermined the property— prerogatives of the father. Cardozo C.J., of the
Supreme Court of United States very aptly said that the Lord Chancellor acted ‘as parens patriae to what is
best for the interest of the child.6 But the transformation of the concept of guardianship from essentially a right
to essentially an obligation took almost three centuries and the process cannot yet be said to have been
completed. The statutory law has to intervene from time to time to make the law subserve, the social need and
to make it in conformity with the current ideas and concept of guardianship.
The Court of Chancery made a very cautious approach and in the beginning it showed a remarkable reluctance
to interfere. The Court of Chancery always talked of (sometimes merely by way of lip-service) of the ‘sacred
rights’ or ‘natural rights.’ This is how the process of eroding the absolute rights of the father began.
In St. John v. St. John,1 Lord Eldon said that the father has control over his children by the law, as the law
imposes upon him ‘with reference to public welfare, most important duties as to them’ and therefore, the
custody and control of children is placed in the father not for his gratification but on account of his duties. Lord
Justice Turner voiced a similar sentiment in Hope v. Hope,2 when he said that ‘the father has by law and policy
the custody of his children and control over them, not for his own gratification but ‘on account of his duties and
with reference to the public welfare. It was this reasoning which the Court of Chancery invoked and utilized.
In 1827 in Wellensky v. Wellensky,3 Lord Eldon said that the courts of law can enforce the rights of the father
but they were not equal to the office of enforcing the duties of the father; the duties of the father ‘have been
acknowledged in His Majesty’s Court for centuries past.’ In the House of Lords, Lord Redsdale said that the
father’s rights over his children were not disputed, but the question was whether the father having those rights
could, because ‘it is generally supposed he will best execute the trust reposed in him, of all the trusts the most
sacred, none of your Lordships could doubt.4 Similarly Sir J. Knight Bruce, Vice-Chancellor said that the
acknowledged rights of the father of guardianship and custody of his children are conferred on him by the law
with a view to the performance of his duties towards his children and ‘in a sense, on condition of performing
those duties.5 In In re, Agar, Ellis,6 Brett, M.R. said that the law recognized the rights of the father because it
recognized the natural duties of the father and if a father breaks those duties then he ‘breaks from all that
nature calls upon him to do,’ and then such a father loses his rights. The same arguments have also been
repeated by the Indian courts.7
In the early period of the exercise of its jurisdiction and till the close of nineteenth century, the Court of
Chancery mainly endeavoured to enlarge the scope of its jurisdiction by adding to circumstances in which it
could interfere with the paternal rights. In re, Curtis.8 Vice-Chancellor Kindershy still said that ‘the court could
not interfere with paternal rights merely on the basis of the benefit of the minor, but only when it was essential
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to their safety and welfare in some serious and important respect, either physically, intellectually or morally.’
The court developed various cases where the paternal rights could be interfered with. Thus, the court interfered
on the ground of father’s immorality, conversion to another religion, ill-treatment of the mother or the child,
neglect of children, second marriage of the father, father’s property and the like.
The courts on the one hand said that the father is not entitled to the custody because he rendered himself unfit
and, on the other hand, they said that in such a case it would not be for the welfare of children that the father
should have custody. Till 1876 this was the approach the Court of Chancery made. In re, Goldsmith,1 the court
said that if the father was a man who habitually indulged in inebriety and in the use of violent language of most
abominable character; then such conduct must of necessity seriously affect the interest and welfare of the
children. In In re, Agar Ellis2 it was the Chancery Division which propounded the thesis as the court could
interfere with the fathers’ rights only in ‘exceptional circumstances.’ Bowen, L.J., eulogized the paternal rights. It
seems that by the close of nineteenth century the welfare of the child became at least as important as parental
right.
Thus, till the passing of the Guardianship of Infants Act, 1886, the paramountcy of the welfare rule was far from
being established. It was in 1893 that the court came out with the bold pronouncement: The dominant matter for
consideration of the court is the welfare of children.3
The shift from ‘unfitness of father’ to the ‘welfare of children’ becomes clearly discernible in the last decade of
the nineteenth century. Speaking of section 5 of the Guardianship of Infants Act, 1886, Lindley, L.J., said that to
say that the father could be deprived of his right only if he had unfitted himself was to reduce the statute to
nullity.4 Thus, the principle that the welfare of the children was the paramount consideration which was
propounded by the Court of Chancery in the seventeenth century could assert itself only at the close of
nineteenth century, though final triumph was achieved, which according to rules now well-settled, forms the
paramount consideration in these cases.”5
But still the path was littered with debris of the supremacy of paternal-right-rule. In this background was passed
the Guardianship of Infants Act, 1925, which firmly and finally proclaimed the paramountcy of welfare principle.
After the Act; the courts have, not found any difficulty in applying the welfare principle in any adjudication in
respect to children, whether between parents or parent and stranger or between strangers and strangers.6
In In re, Collins,1 Sir Reymond Evershed, M.R. said that there was little doubt that in 1871 the father was
treated as having absolute rights and that rule persisted till 1925, though it might be during this period that there
was some change in social philosophy and some change of feeling towards it. Again, Sir Reymond said in In re,
A.2 that the wishes of parent of children which is the paramount consideration. In re, H3 and in F. v. F.4 the
court again reiterated the paramountcy of welfare rule.
In In re, Adoption Application 41/615 Dackwerts, L.J., referring to the decision in In re, Thain6 said:
But I would respectfully point out that there can only be one ‘first and paramount consideration’ and other
considerations must be subordinate. The mere desire of a parent to have his child must be subordinated to the
consideration of the welfare of the child and can be effective only if it coincides with the welfare of the child.7
Finally, we may refer to In re, K.8 In the Chancery Division Ungoedthomas, J., said that ‘that jurisdiction
regarding wards of court which is now exercised by the Chancery Division is an ancient jurisdiction deriving
from the prerogative of the Crown as parens patriae. It is not based on the right of parents, and its primary
concern is not to ensure their rights but to ensure the welfare of the children. Although it is an ancient
jurisdiction it serves a modern need which has perhaps increased. However, strong the rights of parents, those
rights are only the counterparts of duties, and it is generally only the failure of the parents to carry out those
duties that occasions any wardship proceeding at all.’ The learned Judge further said that where the paramount
purpose was the welfare of the child, the procedure and rules of evidence should serve and certainly not thwart
that purpose.
The question before the court was whether it could receive and treat as part of the evidence before it in
reaching the conclusion, confidential reports submitted to it by the guardian ad litem of the infant without
disclosing their contents to any other of the parties to the proceeding?
The Judge, Lord Evershed, said ‘must in exercising the jurisdiction act judicially; but the means whereby he
reaches his conclusion must not be more important than the end.’ The learned Judge further said that he would
subscribe to the view that in conflict between the right of parent to disclosure and the welfare of children ‘the
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right’ of the parent must inevitably be subject to that which the judge regards as the best interest of the ward.
Their Lordships then observed:
The interest of the infant is the paramount interest and purpose of the jurisdiction.1
Thus, English law now takes the view that the welfare of the children is the first and paramount consideration
and all other considerations, including the right and wishes of the parent, are subordinate to that consideration.
The Indian courts have tried to follow this development closely. The English courts have the advantage of
section 1 of the Guardianship of Infants Act, 1925, while in Indian law we do not have a provision like that. In
this background the work of our judges is commendable. The Indian courts have said: “The paramount
consideration must always be the welfare of children,2though nowhere in the Guardians and Wards Act, 1890,
the word ‘paramount’ is used with welfare. The Madras High Court, following English decisions, said, “The right
flows from certain universal feelings in nature and the common organization of society all the world over. But
that right is not an absolute right, it is subject to the overriding power of the court, which may interfere in the
interest of the child.”3Section 13 of the Hindu Minority and Guardianship Act, 1956, now lays down: “In the
appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall
be the paramount consideration.”
In fact the welfare principle is now recognized in the laws of most of the countries of the world. It is one of those
few principles which cut across ideological barriers. For instance, it is recognized in the United States,4 the
Soviet Union5 and in the modern laws of West Germany6 and Poland.7 The working of the welfare principle in
Soviet law may be illustrated from a few decided cases. In its actual application the welfare principle had led the
Soviet Courts to favour mother more than the father because, according to them, interest of the child is better
served in the home maintained by the mother than in the home kept by the father. In Kvartshaw v. Redkova,8
where the parents, had separated and the child was living with its mother who was putting up with her parents,
the father applied for the custody of the child. The trial court declined to give him custody but allowed him full
access. The Judgment was affirmed by the first appellate court, but was finally reversed by the Supreme Court
on the ground that such an arrangement would subject the child to two different regimes which would be
undesirable for the development and upbringing of the child. The Supreme Court also observed: ‘it goes without
saying that if the mother departs from a reasonable upbringing for the child, the father has the right at any
moment to bring a new suit against the mother to obtain the custody of the child.’ This could as well have been
the Judgment of an English court.1 What is remarkable is that in the interest of the child the Soviet courts have
disregarded political considerations. In Khazalia v. Shvangiradze,2 the trial court granted custody of the child to
the father on the ground that he could provide the child with a responsible ‘communist upbringing’ which was
almost impossible in the home of young mother. On appeal, the Supreme Court said:
The court must consider solely the interest of the child. In doing so the court must bear in mind that the interests of the
child are not secured solely by the material conditions necessary for its upbringing. The better material conditions of
the father are no reason for taking away a child of two and a half years from its mother.
This echoes the observations of Lindley, L.J., in In re, Mcgrath3
Like the English court, the Soviet courts have declined to give custody to mother whenever the mother has
been found unsuitable or whenever the interest of the child required that the mother should not have custody,
or whenever the court has felt in the welfare of the child some third person should have custody. Thus in
Krimov v. Polishchuck,4 the custody of the child was given to the father as the mother was found insane. In G v.
K5 after divorce, the mother of a minor child entrusted the custody of the child to the father by saying that
neither she was in a position nor did she wish to care for it. Later on when the mother applied for custody, the
Soviet court said that if the mother had abandoned the child and refused to rear it up, she would not be allowed
to regain it.
With the establishment of the principle that in all adjudication in respect to children, welfare of children is the
paramount consideration, two consequences of great significance flow—
(a) custody is separated from guardianship and it emerges as a separate concept, and
(b) guardianship no longer remains a right, it becomes a duty.
English law now makes a further distinction between custody and care and control. The divorce court has used
the device of giving legal custody to one parent and ‘care and control’ to another. In Allen v. Allen,6 and
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Willoughby v. Willoughby,1 legal custody was granted to the father and ‘care and control’ was committed to the
mother who was found guilty of adultery. The child in both the cases was of tender years, and therefore in the
welfare of the child the court felt such an order was necessary. In Wakeham v. Wakeham,2 Denning L.J.,
explained the principle thus:
By giving the father the custody, it recognizes that he, the innocent party, is at least entitled to a voice in the bringing
up of the child or children, and is entitled to the consideration of the court when any question arises as to what is to be
done for the child. Of course the paramount consideration for the court is the welfare of the child. But that is not the
only consideration and that is why the order of custody should be given to him, although for practical reasons and
solely for practical reasons, the mother has the care and control.3
Similarly, in Court of Appeal,4 Upjohn, LJ. said that in the Guardianship of Infants Act, the term, ‘custody’ has
its wide legal meaning. ‘If an order is made granting custody of an infant to one parent without more, that would
include care and control of that infant.......it also gives that parent the right to organize the infant’s religious and
general education and his general upbringing. On the other hand corresponding duties evolve on that parent.’5
His Lordship further developed the argument by saying that if only order which the court could make was giving
custody to either parent, then his order would not be in consonance with the welfare of the minor. “He now has
either to give custody and care and control to the father, which no doubt would be excellent from the point of
view of the custody and care and control to the mother, in which case the boy will now almost certainly be
better looked after than if he were with the father but may lose the interest of his father in the preparation for
attending the school later.”6
In Saumya Smita Sahoo v. Maj. Susheet Kumar Nayak,7 custody was given to father after dissolution of
marriage. The father remarried and left the child with her grandparents. Mother claimed custody. She was
awarded the custody and court observed that child had more bonding with mother and in growing age child
needs care and affection of mother. Moreover, child also wanted to stay with mother.
It is submitted that separating custody from guardianship and splitting custody into legal custody and care and
control have been done with a view to serving the maximum interest of the child. This is a device by which
maximum possible association of both the parents is achieved, so that the child may continue to receive the
care, attention and affection and interest of both the parents to the maximum possible extent. This is also a
device by which a particular need of the child, at a particular stage of its life may be satisfied to its best possible
advantage. To achieve that end sometimes care and control may be entrusted to third persons for some
purpose, such as for nursing it, or for educating it. This is best illustrated by the provision of hizanat of
Mohammedan law. The term hizanat has been translated as custody. It is submitted that this was done at the
time when notion of splitted custody was not a known concept of law. Looked at closely, hizanat is nothing but
care and control of the child. The position of the mother for the purpose of weaning the child. The position of the
mother having hizanat is no better than the position that was assigned to the mother by the court in Allen v.
Allen1 and Willoughby v. Willoughby.2
Thus, under the modern law it is possible, if the welfare of the child so requires, that the guardianship may be
vested in one person, custody may be given to another and still care and control may be entrusted to yet
another person.
Thus in Shyamrao Maroti Korwate v. Deepak Kishanrao Tekam,3 the maternal grandfather was allowed to
retain the custody. The father was acknowledged as guardian. In this case father had remarried within one year
of mother’s death and had a son. Child was living with maternal grandfather since long. Court held that
maternal grandfather can keep custody till the child is 12 years old and after that father can move a fresh
application for custody.
Thus guardianship as a jural concept is a duty. It is bundle of duties towards children. Parents as natural and
legal guardians of their children have the duty of looking after their upbringing and making proper arrangements
for their education and of providing maintenance to them. The only difference between the parent and any other
guardian is that the parent has to provide for the maintenance of the child, while any other guardian has no
such duty though he has the obligation to look for their support. A guardian of property, whether a parent or
some one else has the duty to look after, and give proper management and administration to the property of the
child, such as in litigation, then it is the duty of the guardian to best subserve that interest.
With a view to enabling the guardian of the person of the minor to perform the various duties, the guardian is
normally entitled to the custody of the child. In its narrowest sense custody means right to physical possession
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of the child. In its widest sense it includes care and control, power to direct with whom the child will reside, a
right to organize the child’s religion and general education and his general upbringing. These rights correspond
to his duty of looking after the child and of giving proper thought to its religious and general education and
upbringing, generally. Looked at from this point of view custody as a jural concept is a right. When care and
control is spilt from custody, then it means that the right of physical possession of the child is taken away from
the person who has the right to custody or from a person who is guardian of the child and also has the custody
of the child.
If looked at in this perspective there will be no occasion for removing a natural and legal guardian of a child.
Since guardianship is primarily a duty, the guardian has to perform all his obligations. If in the welfare of the
child, he is not considered to be a suitable person to look after the upbringing of the child from day-to-day, the
care and control may be entrusted to someone else, to the other parent, or to a third person, such as a nurse,
boarding, house, or a school, or to a welfare officer or a local authority or to a children’s home. This means that
a natural guardian is assisted in fulfilling his obligation which he himself cannot discharge. This does not mean
that he is absolved from all his obligations. In any case he must provide maintenance to the child.
This brings us to another question: if guardianship is primarily a duty, then should we still subscribe to the
dogma that father alone is the natural guardian of his children?
In practically all the common law countries and India, the father is considered as a natural and legal guardian of
his minor children, and during his lifetime mother is not considered as a legal and natural guardian. Could it be
said that mother is not as natural as the father, or could it be said that she is less natural? Could it be said that
the father loves, cares and pays more attention to the children than mother? Or, is the reverse true? May be, at
some period of child’s life it requires more of the mother than of the father or at some period of the life it
requires more of the father than of the mother. But then, it is submitted, that cannot make any distinction
between the parents. It may mean only this that at some period of child’s life it may be in the care and control of
another parent: this may be necessary when parents are living apart. But in the present law, as has been seen
earlier, what happens is this: when parents are living separate either under a decree of court or otherwise, the
father being the natural guardian of his children can always claim custody and exclude the mother. This is in
fact what has happened even in some recent Indian cases and in many early English cases. If mother wants
custody she has to make out a special case, while it has not been necessary for the father. In view of this it is
submitted that the law should lay down that both the parents are natural and legal guardians of their children.
They are equal co-ordinate guardians both having equal obligations and responsibilities and equal rights. This
will mean that whenever there arises differences between them, it would not at all be necessary to agitate the
question of guardianship. They both are guardians and they remain guardians unless one of them is removed
from guardianship. The only question that will remain will be of care and control or custody between them, and
the court will grant custody or care and control to the parent with whom lies the welfare of the child uppermost.
No question of any superior right or preferential right would arise. This is what has been precisely achieved by
section 1 of the Guardianship of Infants Act, 1925 (now the Guardianship of Minors Act, 1971), although
English law still does not call mother a legal and natural guardian during the lifetime of the father. But
substantially that has been achieved. Indian law is yet wedded to the old notion that the father is the legal and
natural guardian of his children, from which he cannot be removed unless found unfit.
Reverting to the main theme: the guardianship being a bundle of obligations towards children, the greatest
challenge that the modern law faces is how to get these obligations fulfilled in the interest of the child. And the
greatest revolution in law in our times has been to bring into the domain of public law what was hitherto
considered to be the exclusive preserve of private individual interests in domestic relations of the members of
the family against each other as well as against the world at large. It has to be kept in view that the family is still
considered as a social institution in the preservation and protection of which there lies a social interest. Thus
the question arises, how far the liberty of movement of a child is to be protected against the social interest of
the family so that till he attains the age of discretion, the child should ordinarily live in the family under the
authority of the parent. This may all coincide with the individual interest of the child of being accorded protection
till he attains legal capacity and physical maturity. Or, how far offences like, kidnapping, seduction and rape
should be considered as offences against the child and how far they should still be continued to be considered
as offences against the parent or the head of the family representing the social interest (as distinct from
individual interest) in the protection or preservation of the honour and self-respect of the family? This shift in
emphasis, this change in values has been emphasised by Gajendragadkar, J. (as he was then) who said that it
may be, that the mischief intended to be punished partly consists in the violation or the infringement of the
guardian’s right to keep their wards under their care and custody; but the more important object of these
provisions undoubtedly is to afford security and protection to the wards themselves.1
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It is this shift in emphasis and this change in outlook which are most important. Half a century back Pound,2
has put it thus: “Today certain social interests are chiefly regarded. These are on the one hand a social interest
in the maintenance of the family as social institution and on the other hand a social interest in the protection of
dependent persons, in securing to all individuals a moral and social life and in rearing and training of sound and
well-bred citizens for the future.”
In this endeavour individual responsibilities are supplemented, and sometimes substituted, by social
responsibilities. Laws of most of the countries of the world now fully or partially, recognize State’s special
responsibility towards children. When the parents fail or are unable to perform their responsibilities and
obligations towards children, the State assumes the role of parent towards them. Parent’s responsibilities and
state’s responsibilities are pooled together to accord maximum protection to children. For instance, the modern
law imposes an obligation on parents to give compulsory primary education (in some States compulsory
secondary education also) to children and on the other hand it provides facilities for free primary education. On
the one hand the law imposes on parents an obligation for periodic compulsory medical tests and on the other
hand it provides all facilities for such tests. It is heartening to note that this is one field where distinction
between capitalist States has become superfluous. Thus, in most of the modern States, the parental obligations
and responsibilities and State’s obligations and responsibilities towards children are interlinked and sometimes
combined. Many countries now provide for national health service, compulsory primary education, social
insurance schemes, family allowances and the like. The industrial worker is provided with additional assistance
by schemes like accident insurance and workman’s compensation. Thus the shift in the modern law is from
indirect methods to direct methods of discharging State’s responsibility towards children. For instance, under
English law, the Children’s Act, 1948, a local authority may take under its care any child who is a destitute of
parental care. The local authority may, in certain cases, even during the lifetime of parents, assume parental
authority over a child with a view to ‘further his best interest and to accord him opportunity for the proper
development of his character and ability’.3
What the modern family law emphasises is this: the family is no longer the father’s household, it is not the pater
familias citadel within whose four walls arms of law could not, dare not enter, but it consists of children, mother
and father all living together in love, happiness and freedom. And interest which is of prime consideration and
which deserves the uppermost social protection. The modern problem, as Graveson1 puts it: “What of children?
Are they to find the stable marriage of the future or are they to become petitioners for divorce in the next
generation? The future of family is our present and inescapable responsibility.” It is submitted this responsibility
of ours can best be discharged if the children of broken marriages and also of breaking marriages, are provided
all facilities to grow into adulthood without any inhibitions or frustration, like average individuals. Law as the
supreme mode of social control and social welfare has the responsibility of providing as near as possible
conditions of a home for such children and to protect them from becoming pawns in the matrimonial or other
litigation between the parents. In welfare of minor it has been held that matters pertaining to custody, visitation
rights, etc., should be disposed of expediously.2 This can be done by translating the principle that welfare of the
children is the paramount—or even sole—consideration in all adjudication in respect to children into practice.
This, it is submitted, can only be done by fully combining the parental responsibility and the State’s
responsibility towards children. This also emphasises the need for a family court.
11. Proviso: Disqualifications of Natural Guardians
Proviso to the section lays down two disqualifications of a guardian. Any natural guardian who incurs any one of
these two disqualifications would lose his right of guardianship. Thus, no person shall be entitled to act as the
natural guardian of a minor child if he has:
(a) ceased to be a Hindu; or

(b) completely and finally renounced the world by becoming a hermit (Vanprastha) or an ascetic (Yati or
Sanyasi)
12. Proviso (i): Ceasing to be a Hindu
“Ceasing to be a Hindu” is a refrain of statutes of the codification of Hindu law. Since Hindu law applies to
Hindu, cessation of a person who was Hindu should lead to some consequences. The Hindu Marriage Act,
makes it a ground for divorce,3 and judicial separation.4 The relevant clause runs thus: the other party has
ceased to be a Hindu by conversion to another religion. The Hindu Adoptions and Maintenance Act uses the
words “has ceased to be a Hindu” in its various sections. Thus when a Hindu male makes an adoption the
consent of the wife is mandatory, but wife’s consent may be dispensed with if she has ceased to be Hindu.5
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Similarly, a married woman can make an adoption, interalia, if her husband “has ceased to be a Hindu”1 The
Hindu Succession Act disqualifies the descendants of a person from inheritance if he has ceased to be a
Hindu.2 The present clause makes it to be disqualification for a natural guardian.
However, the language of all the statutes is not identical. Section 13(1)(ii) of the Hindu Marriage Act lays down
that the other party “has ceased to be a Hindu by conversion to another religion.” Section 26 of the Hindu
Succession Act uses the same language. But the Hindu Adoptions and Maintenance Act, 1956 uses the
following language, “has ceased to be a Hindu”, and does not add, “by conversion to another religion.” In our
submission, this would make no difference, as we have seen in our commentary on section 2 of the Hindu
Adoptions and Maintenance Act, 1956, a Hindu can cease to be a Hindu only when he converts to another
religion. Mere denunciation or repudiation of Hindu faith is not enough. It is also not enough if a Hindu declares
his liking for another faith. He must accept that faith by converting to it then alone he would cease to be a
Hindu. Similarly, a person would not cease to be a Hindu if he does not practise his religion, or does not have
faith in it or renounces it or leads an unorthodox life, so much so that he starts eating beef and insulting all
Hindu gods and goddesses.3 Such person would continue to be a Hindu.
A Hindu who converts to any one of the four religions of Hindus would not cease to be a Hindu. In our
submission, a person would cease to be a Hindu only when he converts to a non-Hindu faith, such as to Islam,
Christianity or Zoroastrianism.
It is further submitted that when one of the parents is non-Hindu, from the beginning or from the time of the
marriage, then this clause will not apply. Thus if a Hindu had married a Muslim female and if he wants to make
an adoption, he cannot dispense with the consent of his non-Muslim wife on the ground that she is a non-Hindu
“ceasing to be a Hindu” is a disqualification and it is not the same thing as “being a non-Hindu” at the inception
of the marriage.
In Raj Kumar Gupta v. Barbara Gupta,4 the Calcutta High Court has doubted the constitutional validity of this
provision but left the question open.
A parent who has ceased to be a Hindu is not entitled to guardianship.5

13. Proviso (ii): Renunciation of the World
If a guardian has renounced the world,6then he incurs a disqualification and cannot continue to be the guardian
of his minor children. The Hindu Adoptions and Maintenance Act, 1956 in its relevant sections used the
expression “has completely and finally renounced the world”. Thus under section 7, wife’s consent to a
proposed adoption can be dispensed with if she has completely and finally renounced the world, under section
8, a married woman can make an adoption during the life-time of her husband if the latter has completely and
finally renounced the world, under section 9, when a father exercises his power to give the child in adoption, he
can do only with the consent of the child’s mother but the latter’s consent can be dispensed with if she has
completely and finally renounced the world,1 and a guardian can give the child in adoption if both the parents
have completely and finally renounced the world.2
Under the Hindu Marriage Act, renunciation of the world is a ground for judicial separation and divorce.3 Clause
(vi) of section 13(1), of the Act uses the word, “has renounced the world by entering into any holy order”.
The Hindu Minority and Guardianship Act uses slightly different wordings. The clause lays down:
If he has completely and finally renounced the world by becoming a hermit (Vanprastha) or an ascetic (Yati or
Sanyasi).4
In our submission, the meaning conveyed by these clauses is the same. The requirements under the clause are
two:
(a) the parent (natural guardian) has completely and finally renounced the world, and
(b) he or she has done so by becoming a hermit or an ascetic.
It would thus seem that mere renunciation of the world would not be enough. It must be followed by becoming a
hermit or ascetic.
Among Hindus, individual’s life is organized into four stages or ashramas. The Ashrama Dharma is based on
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the purushartha, individuals’s striving to attain the ultimate. The theory of purusharthas provides the key to the
understanding of the individuals striving to attain salvation in relationship to society. These purusharthas are
four: dharma, artha, kama and moksha. Of these the dharma pervades throughout the four ashramas. Dharma
is created for the well-being of all creations. All that is free from doing any harm to any created being is dharma,
for, indeed, dharma is created to help all creations free from any harm. “Dharma”, is so called because it
protects all, dharma preserves all that is created. Dharma then, is surely that principle which is capable of
preserving the universe.” Kama implies desires in man and enjoyment and satisfaction of the life of senses,
including sexual desires. Kama, thus, refers to the totality of the innate desires and drives in man. Artha implies
acquisition of wealth and it refers to the means necessary to acquire worldly prosperity, such as wealth and
power. Moksha means attainment of salvation. Dharma controls everything. Artha and kama are to be acquired
in accordance with dharma. The stability of the universe depends upon dharma. Dharma is the foremost of all.
Artha is said to be middling, and kama is the lowest of the three. Dharma is the holder of the balance in terms
of which artha and kama have to be dealt with, weighed, practised and acquired. Therefore, we should conduct
our lives in accordance with dharma. Manu says that good of man consists in the harmonious coordination of
the three. As Kulluka puts it, with reference to the supreme and of moksha, the other three objective of life
become but the means for the attainment of that end—salvation (moksha).
The purusharthas are to be practised in the four asharamas. The asharamas are but stages in the journey of
life on the way of final liberation. Vyasa says the four stages of life form a ladder or flight of four steps—the
ladder or flight is attached to the Brahama. By ascending the ladder one reaches the Brahama. In the social
sense asharmas are stages in life, each stage is a training ground for the individual. From one stage to another
he passes till be attains moksha. The four ashramas are, Brahmcharya Ashrama, Grihastha Ashrama,
Vanprastha Asharama and the Sanyasa Asharama. In the childhood one lives in Brahmacharya Ashrama,
acquires education in, the Grihastha Asharma an individual satisfies his natural desires of enjoyment and
pleasure and acquires wealth. In the old age the individual seeks moksha. With the upanayana ceremony the
young boy is initiated into the Brahmacharya Asharma. After completion of his education he becomes a snataka
and enters Grihastha Ashrama. In this stage the individual fulfils his obligations to his ancestors, to the
members of his family and to strangers and gods. On the approach of old age, he enters into the Vanprashtha
Ashrama. In this ashrama, he completely becomes detached from the world and worldly life and lives in a
forest, a life of utter simplicity and austerity. But he continues to perform the sacrifices. After end of Vanprastha
Ashrama, the individual enters the last Ashrama, the Sanyasa Asharama. It is a life of total renunciation of
world.1
Thus, when a Hindu enters into the last two Asharamas he has renounced the world completely and finally. But
mere renunciation of the world is not enough. Thus a person may renounce the world by ceasing to take any
interest in the worldly affairs, he may confine himself to a single room, or to a hut. He may become a Mouni (i.e.
he takes oath to remain silent) or he may become a celebrate. In short, if a person ceases to have any social
intercourse and confines himself to the life of meditation or to a solitary life, yet he does not enter into a holy
order by becoming a vanprasthi or yati or sanyasi, he would not incur the disqualification. Thus just because a
person has become a chela of a hermit may not amount to renunciation of the world by entering into a holy
order.
A person enters into holy or religious order when he undergoes the ceremonies and rites prescribed by the
order which he enters. Unless these ceremonies are undergone, it would not amount to entering into holy order.
It is difficult to visualize a situation when a person enters into a holy order and still does not renounce the world.
But if a person enters the holy order, yet comes home howsoever degraded he may be in the eyes of religion or
society, and resumes cohabitation or after entering into the holy order continues to cohabit; in such
circumstances he does not incur the disqualification.
Similarly, merely entering into a holy order would not entail a disqualification, if the person has not renounced
the world. Thus there are several holy orders where a person is permitted to live as a grihasti (householder), it
would not entail a disqualification.
14. Other Disqualifications
No other disqualifications are mentioned in the Act. But this does not mean that a parent will continue to be the
natural guardian if does not incur any one of these disqualifications. The courts, in the interest of the welfare of
the child, may remove a parent from his or her guardianship. This aspect of the matter we would consider in
Part III of the work in our commentary on section 17, the Guardians and Wards Act.
Page 31 of 40
1 This is made clear by the Explanation to the section lays down that in this section, the expression “father” and “mother”
do not include a step-father or a step-mother.
2 AIR 1966 MP 189 [LNIND 1965 MP 69].
1 AIR 1914 PC 41
1 AIR 1994 All 250 [LNIND 1993 ALL 313].
2 AIR 1974 P&H 124 .
3 AIR 1997 Cal 326 [LNIND 1997 CAL 58].
4 Deepa Sasikumar v. Sasikumar, AIR 2012 Ker 69 .
5 AIR 1997 Cal 123 [LNIND 1996 CAL 188].
1 AIR 1971 SC 315 [LNIND 1970 SC 341].
1 AIR 1972 All 81 .
2 JT 1999 (1) SC 524 [LNIND 1999 SC 165]: AIR 1999 SC 1149 [LNIND 1999 SC 165].
2 Rajendra Kumar v. Deepak Makwana, AIR 2008 Del 92 .
3 K.R. Sudha v. P.R. Sasikumar, AIR 2012 Ker 71 [LNIND 2011 KER 850].
4 Law in the Changing Society, 251.
5 In re, Lloyd, (1841) 3 Man&G 547; see also Horner v. Horner, (1799) 1 Hag Con 337.
6 18th Elix. 3, 4 and 5 William 4 c. 76, section 71; see sections 40 and 64, National Assistance Act, 1948.
1 R. v. Nash, (1893) 10 QBD 454.
2 Barnadro v. McHug, (1891) AC 7 .
3 The Bastardy Act, 1872 under which the putative father is made liable to pay weekly sum for the maintenance of any
child after affiliation proceedings.
4 The obligation was further strengthened by the Affiliation Proceedings Act, 1957 and by the National Assistance Act,
1948. See also the Children Act, 1948.
5 In re, M., (1952) 2 All ER 911.
6 The case arose as to the interpretation of the word ‘parent’ in section 2(4)(a), the Adoption Act.
7 Galloway v. Galloway, (1954) 2 All ER 429 (CA).
8 Galloway v. Galloway, (1955) 3 All ER 429 (HL).
9 (1931) 1 KB 317.
10 In fact the court held that putative father is nobody and has no say in the proceedings under the Act.
11 (1956) 2 All ER 876.
12 (1956) 2 All ER 500.
13 (1931) 1 KB 317.
14 (1955) 2 All ER 202.
1 In re, M., (1952) All ER 911per Denning LJ; In re, Adoption Application 41-61, (1963) Ch 315 and (1963) 3 WLR 357
(Court of Appeal); In re, O, (1964) 2 WLR 840 .
2 Rig Ved 1, 64, 14.
3 AIR 1934 Lah 1003 : ILR (1934) 15 Lah 630.
4 Lal Das v. Ne nunjo, ILR (1879) 4 Cal 374 ; Kariadas v. Koyat, ILR (1896) 19 Mad 461 .
5 Hindu Minority and Guardianship Act 1956, sec. 6.
Page 32 of 40
6 Hindu Maintenance and Adoption Act, 1956, sec. 20.

1 Rahi v. Govind, ILR 1 Bom 97; Parichat v. Balin Singh, (1879) 4 IA 159; Muttuswami v. Vencataswara, (1968) 12 MIA
203; Kuppa v. Singsvelu, ILR 8 Mad 325; Chemava v. Irya, AIR 1931 Bom 492 .
2 Mitakshara 1, 12, 3.
3 Manu, IX 179; Yajunavalkya II, 133-34; Mitakshara 1, 12; Dayabhaga, IX 28; Mayukha IV, 29-31; Dattaka Chandrika V,
30-31.
4 Vellaiyappa Chetty v. Natarajan, AIR 1931 PC 294 (298); Gur Narayan Das v. Gur Tahal Das, 1952 SCR 869.
5 Singhai Ajit Kumar v. Uyayar, AIR 1961 SC 1334 [LNIND 1961 SC 115].
6 Vellaiyappa Chetty v. Natarajan, AIR 1931 PC 294 .
7 Kamulammal v. Visvanatha Swami, AIR 1923 PC 8 .
8 Singhal Ajit Kumar v. Uyayar, AIR 1961 SC 1334 [LNIND 1961 SC 115].
9 Jogendra v. Nittanund, ILR (1891) 18 Cal 151 (PC).
10 Ratnaraja Kumar v. Narayana Rao, AIR 1953 SC 433 [LNIND 1951 SC 64]; Ammireddy v. Ammireddy, AIR 1961 AP
131 [LNIND 1960 AP 156](FB): the decision is confirmed by the Supreme Court in AIR 1965 SC 1970 [LNIND 1965
SC 46].
11 Ammireddy v. Ammireddy, AIR 1965 SC 1970 [LNIND 1965 SC 46]. Yajnavalkya in XXIV 290 lays down that any
person who would intercourse with dasis and others who are Avarudha or bhujishya is liable to a fine of fifty panss.
Vijnaneshwar in his comments on this explains the term, avarudha, as a woman “prohibited by the master from
intercourse with other men, with an injunction to stay at home with the object of avoiding any lapse of service.” He
explains bhujishya as a woman “restricted in the matter of sexual intercourse to certain persons.’ According to
Vijnaneshwar even veshyas (harlots) and sadharanastris (common prostitutes) are included. See also Akku Prahalad v.
Ganesh Prahalad, AIR 1945 Bom 217 (FB) where the matter is fully discussed.
1 Vellaiyappa Chetty v. Natrajan, AIR 1931 PC 294 : (1932) 58 IA 402.
2 Hindu Adoption and Maintenance Act, 1956, sec. 20(1).
3 Under the Hindu Succession Act, 1956, in respect to inheritance to a Hindu male only legitimate relationship is
recognized: sec. 3(j).
4 Hindu Succession Act 1956, sec. 26.
1 Gaius 1, 83-85.
2 By the Lex Minicia modified this rule by laying down that if one parent was pregrine and the other a citizen, the issue
would have an inferior status. But this was in turn modified by a Senatus Consultum of the Emperor Hardrian who again
laid down that in such a case, the child will have the status of the mother.
3 He could give 1/12 of his property and in case he has no legitimate child, upto 1/4.
4 On failure of legitimate child, the father could give upto half, and he could inherit upto 1/6.
1 This entitled the child to maintenance, to use of the name of the parent to whom it is filiated or who has recognized him,
the rights of mutual succession. But the child’s right of succession is restricted to parents: he cannot succeed to
ascendants or collateral of his parents. Section 16 of the Hindu Marriage Act, 1955, is to the same effect.
2 Article 762.
3 Article 763.
4 Section 1705.
5 Section 1723.
6 Sections 1717, 1718.
7 Section 1708.
8 Section 1709: If the mother has paid for the maintenance of the child she has the right to subrogation. The claim may
be satisfied by triennial payment (sec. 1710); the claim continued against the estate (sec. 1711).
9 Norwegian Law of Illegitimacy, (1918) U.S. Children’s Bureau.
1 Bell v. Terry & Tench Co., 163 NY Supp 733.
2 Section 120.
3 Code of 1918 RSFSR, Article 133.
Page 33 of 40
4 In the early period of the implementation of law, it seems that the courts have been more interested in finding out a
person who could be saddled with the responsibility of the maintenance of the child, irrespective of the fact, whether he
was found to be in fact the putative father of the child. Article 144 provided that when several persons had relations with
the mother during the period of conception, the court might declare all of the persons as liable to support the child.
However, this was soon found to be defective and it made no person wholly responsible. This change is reflected by
the Supreme Court’s decision in L. v. Vingradov and Lebleu, No. 358 (1930) 10 Su Prak RSFSR 19, where two persons
have intercourse with the mother on the same night, resulting in pregnancy; the court chose one of them. See Hazard;
Law and the social change in USSR, 250.
5 For instance, see the Polish Family Code of 1964.
1 Manu Smriti Vol. V, 159-160 (Dr. Jha’s Translation, p. 145). See also for texts in other Smritis; Dr. Jha’s Manu Smriti,
Comparative Notes, Part III, Verses 2, 132 (Yajnavalkaya).
2 Section 9.
3 Section 2.
4 Section 16.
5 Proviso to sec. 16.
6 Section 26: the language of sec. 16, the Hindu Marriage Act, 1955 and this section is identical.
7 Originally it applied to a concubine who was ingenua. Emperor Nero abrogated it. Justinian restored it. Code 5, 27, 10.
8 Code 5, 27, 8, 10, 11.
9 Nov. 89, 9.
10 Nov. 89, 2, 1.
1 Article 331.
2 Sections 1719-22, German Civil Code.
3 Civil Code 194.
4 Civil Code 120.
5 Civil Code 836.
6 Albama, Indian Kentuky, Massachusettes, New York, Ohio, Pennsylvania, Texas, Vermont, Virginia.
7 See Mackenzie Roman Law, P. 130; In English common law recognized one exceptional case, ‘bastard eigne et muiler
puisne’.
8 Section 1(1).
9 Section 1(2).
10 Para 1179.
11 Italian Civil Code 194; Spanish Civil Code 120.
12 The one outstanding example (and probably the sole) is the statute of Richard II conferring legitimacy on children of
John of Gaunt.
13 Articles 332-386.
1 Article 335.
2 Their position resembles with children under sec. 16, the Hindu Marriage Act.
3 Sections 1736 and 1725.
4 Section 1735.
5 Section 1726.
6 A recognized child under the Code acquires all the rights of a legitimate child; sec. 1736.
7 Article 77.
8 Bailie 406; Hedaya, 439; Md. Allabad v. Muhammad, (1888) 10 All 289.
9 Bailie 408; Hedaya, 408; Habibur Rehman v. Altaf Ali, (1921) 48 IA 114.
10 See Manu-Smriti, V. 146-48; Vasishtha-Dharmasutra, V. 1, 3: Gautama-Dharmastra, XVIII, I Gaius I 144.
1 Manu-Smriti V 146.
Page 34 of 40
2 Roman author Gaius said that whatever be their age and notwithstanding their marriage, if they are females, according
to the great ancestors even woman who had reached majority, require, on account of their levity of disposition, to be
kept in tutela. The English common law rules were not less stringent. At common law the husband and wife are styled
as baron and fame. Pollock and Maitaland very aptly said that the main idea which governs the law of husband and
wife is not that of “unity of person”, but that of guardianship, the mund, the profitable guardianship, which the husband
has over the wife and her property. Muslim law recognizes that the husband has absolute right of marriage, and no
contract of marriage can curtail it. This means that he has absolute right of divorcing his wife. Of the two partners of
marriage, the Muslim law treats husband as dominant one, since he is considered to be mentally and physically
superior of the two. However the legal personality of the wife, as Ameer Ali says, is not sunk in that of the husband; she
retains the same power of using and disposing of her property, or of entering into contracts regarding it, and of suing
and being sued without his consent, as if she were still unmarried; she can sue her husband without the intervention of
a trustee or next friend and is in no respect under his legal guardianship. But then, the Muslim wife’s sources of
acquiring property were few, and the dominant position that husband enjoyed did not permit her to enjoy those rights
effectively.
3 Narada-Smriti, XIII 28-29. This text has also been quoted in the Dayabhaga, Chapter II, sec. 1, Para 64.
4 Manu-Smriti, V, 146-48.
5 Hindu Law, 3 Edn., 541.
1 Principles and Precedents of Hindu Law, 5th Edn., Vol. 1, 104.
2 Kateeram v. Dokaree, 23 WR 178: This is probably the earliest case on the subject. See also Gurudas Bannerji Hindu
Law of Marriage Stridhan (first edition) 117, 171.
3 ILR (1890) 17 Cal 298 .
4 ILR 18 Cal 37 (45).
5 See also Ram Krishna Bhattacharya v. Badri Narayan, AIR 1943 Cal 531 ; Navneetlal v. Purshotam Hurjivan, ILR
(1926) 50 Bom 268 ; Arumuga Mudaliar v. Viraraghava Mudaliar, ILR (1906) 24 Mad 255 .
6 ILR (1906) 24 Mad 255 .
7 The authorities cited were: Mayne: Hindu Law and Usage, 6th Edn., p. 17; Manu Smriti, IX 3; V. 148; Guroodas Banerji,
Hindu Law of Marriage and Stridhan, 116.
8 AIR 2012 Mad 62 [LNIND 2011 MAD 4101](FB).
1 Section 19, the Guardians and Wards Act, 1890 runs as under:
“Nothing contained in this Chapter shall authorize the court.......to appoint or declare a guardian of the person—
(a) of a minor who is married female and whose husband is not, in the opinion of the court, unfit to be the
guardian of her person.”
2 Bulla Mal v. Hardrilal, AIR 1924 Lah 570 .

3 Manibai v. Maganlal, AIR 1930 Bom 239 ; Bai Tara v. Mohanlal Lalubhai, AIR 1922 Bom 405 ; Navneetlal v.
Purshotam, 1926 Bom 228.
4 (1911) II IC 478.
5 AIR 1921 Lah 68 .
6 Shantidevi v. Rattan Chand, AIR 1962 Punj 367 ; Shyama v. Shankar, AIR 1935 All 840 ; Jagjeewan Prasad v. Bhura
Prasad, 1952 MB 127; Arumuga Mudaliar, v. Viraraghava Mudali, (1906) 24 Mad 255; Venkataramanish Chetty v.
Pappamah, (1948) Mad 103; Navneetlal v. Purshotam Das, ILR (1926) 50 Bom 268 .
1 Section 6, the Hindu Minority and Guardianship Act, 1956.
2 Proviso to sec. 6, the Hindu Minority and Guardianship Act, 1956.
3 Section 10, the Hindu Minority and Guardianship Act, 1966.
4 The General rule is laid down in sec. 13 which runs:
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
Page 35 of 40
No person shall be entitled to the guardianship by virtue of the provision of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the
welfare of the minor.
5 Section 5(iii), the Hindu Marriage Act, 1955.
6 AIR 1967 AP 294 [LNIND 1966 AP 72].
1 Hindu Law and Usage, 11th Edn., 288.
2 Law relating to minors 53, Macnaughten, Principles and Precedents of Hindu Law 104.
3 Khudiram Mukherjee v. Banwari Lal, ILR (1889) 16 Cal 584 .
4 Chinna Alagum Peruamal v. Vinayakathamal, AIR 1929 Mad 110 [LNIND 1928 MAD 188].
5 M. Ganga Devi v. Narsingh Das, AIR 1935 Lah 25 .
6 AIR 1960 All 479 [LNIND 1959 ALL 224].
7 (1911) 33 All 222.
1 AIR 1960 All 479 [LNIND 1959 ALL 224].
2 AIR 1950 Mad 173 .
3 Chennappa v. Onkarappa, AIR 1940 Mad 33 [LNIND 1939 MAD 270].
4 AIR 1966 Mad 173 [LNIND 1965 MAD 52].
5 AIR 1948 Nag 100 .
1 Critiques of Modern Hindu Law, 178.
1 Ahmed v. Rehmatan, (1917) 40 IC 1070. This view was followed in Zainab Bibi v. Abdul Kareem, AIR 1926 Lah 117 .
2 AIR 1932 Bom 405 .
3 AIR 1941 Bom 103 .
4 ILR (1949) 2 Cal 374 .
5 Budhan v. Bahadur Khan, AIR 1942 Pesh 41 .
6 Kaulessa v. Jorai Kasuundhan, ILR (1905) 28 All 233 .
7 Mt. Sakina Begum v. Malika Ara Begum, AIR 1948 All 498 .
8 Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal 165 [LNIND 1988 CAL 232].
9 Kadiappa v. Valliammal, AIR 1949 Mad 608 .
10 AIR 1955 Mad 451 [LNIND 1954 MAD 227].
1 AIR 1954 Pat 489 .
2 Suhila v. Kanwar Krishna, AIR 1948 Oudh 266 . See also Surat v. Nardu, AIR 1953 HP 50 .
3 AIR 1960 SC 93 [LNIND 1959 SC 146].
4 AIR 1929 Mad 834 [LNIND 1929 MAD 136].
1 AIR 1948 Mad 103 .
2 See also Rama Iyer v. Nataraja Iyer, AIR 1948 Mad 294 [LNIND 1947 MAD 224].
3 AIR 1959 Punj 326 .
4 Kirti Kumar v. Pradeep Kumar, AIR 1992 SC 1447 ; G. Eva Mary Elizabeth v. Jayaraj, AIR 2005 Mad 452 [LNIND 2005
MAD 922]; Ramkrishnan Balasubramanian v. Piya Ganesam, AIR 2007 Mad 210 [LNIND 2007 MAD 996].
5 AIR 1993 All 230 [LNIND 1992 ALL 280].
6 K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59 [LNIND 1992 MAD 406].
1 Amit v. Nirmal Sahu, AIR 2008 All 105 .
2 Suresh Bala v. Sadhu, AIR 1984 Mad 186 [LNIND 1984 MAD 111].
1 1, 144.
2 IX, 3.
Page 36 of 40
3 Ancient Law, Chapter V.

1 Recorded history of Roman law portrays this phenomenon more clearly.
2 This was called peculium castrense.
3 This was called peculium quasi castrense.
4 This was called bona materna or bona adventicia.
1 Only on the ground of gross misconduct of the father he could be deprived of the custody of his children.
2 For instance, in Bell v. Bell, (1927) 2 Sim 35, access to a breast-fed child was denied to the mother as the father was
opposed to it.
3 For instance, if the person entitled to probate or administration was an infant, the probate court appointed a curator for
him.
1 We would review some of these cases in Part III of this work. Here some illustrative cases are noted.
2 (1804) KB 5 East 221: 7 RRR 693.
3 (1836) 4 Ad&El 624: 44 RR 440.
4 (1820) 4 Mur 366.
5 See p. 109 for details of the cases.
6 In re, Lomley, 47 LT (NS) 284.
7 (1804) 10 Vesy 52 (56).
8 (1804) KB 5 East 221.
9 48 RR 203.
10 (1927) 2 Sim 35.
11 R. v. Edward Smith, 94 RR 857; Vansittart v. Vansittart, 119 RR 109.
12 119 RR 109.
1 We would discuss case law on its aspect of the matter in Part III of this work.
1 IX 3, Manu Smriti.
2 Originally acquirer was permitted to retain a double share: This was view of Vasishtha and Vyasa (Digest II 281).
3 French Civil Code, Art. 376; Japanese Civil Code, 882.
1 Even after the passing of the Hindu Marriage Act, 1955, the Kanyadanam is performed as part of the marriage
ceremony.
2 The Marriage Act, 1949.
3 Take for instance Polish Code of Family Law of 1964 Articles 155, 178-184 relating to Guardianship and Curatorship,
clearly reflect the Justinian law.
4 Articles 372-373.
5 Section 1626.
6 This has been done by amending section 1626 of the Civil Code.
7 AIR 1957 Mad 563 [LNIND 1956 MAD 155]; see also Dhan Kumari v. Mahendra, AIR 1923 Nag 393 .
1 Sheikh Moideen v. Kunhadevi, AIR 1929 Mad 33 ; Atachayya v. Kesarji, AIR 1929 Mad 81 .
2 AIR 1927 All 458 .
3 Parmeshwari v. Empress, ILR 23 Cal 290.
4 Harbans Rai v. Mst. Biro, AIR 1926 Lah 393 ; Besant Kaur v. Gian Singh, AIR 1939 Lah 359 .
5 Shanti Devi v. Gian Chand, AIR 1956 Punj 234 ; Chandra Kant v. Hiralal, AIR 1954 MB 43 ; Vasudevan v.
Vishwalkhshmi, AIR 1959 Ker 403 [LNIND 1958 KER 256]; Gurdeo Singh v. Mst. Daulat, AIR 1961 Raj 30 [LNIND
1959 RAJ 131].
6 Annie Beasent v. Narayaniah, AIR 1914 PC 41 ; Satyanarayanamma v. Venkata Lakshmi, 1924 Mad 45; Nazir Khan v.
Ganesh, AIR 1926 Lah 687 .
7 Albercht v. Rathee, 22 MLJ 247; Alagappa Ayyangar v. Mangathai Ammangar, (1916) ILR 40 Mad 672.
Page 37 of 40
8 Lectures on Jurisprudence, Vol. I, 5th Edn., pp. 384-85.

9 Lectures on Jurisprudence, Vol. II, p. 748.
1 Elements of Jurisprudence, 13th Edn., p. 180.
2 Elements of Jurisprudence, 13th Edn.
3 Elements of Jurisprudence, 13th Edn., p. 250.
4 Cases and Materials on Domestic Relations, 3rd Edn., Part IV, 942.
5 Elements of Jurisprudence 13th Edn., p 180. See also Wigmore in his work Summary of Principles of Torts (S. 29-36)
said: “A parent has an interest in his relation with his child. The elements of this interest are three: (1) The individual
services received from the child; (2) The social pleasure ministering by the child; (3) The chastity of a female child, as
ministering to the parent’s sentiments of family self-respect and honour.”
6 On the other hand Winfield said, “our law here displays an unfortunate historical twist.” On Torts 7th Edn., 655. See
also Pound: Individual Interests in Domestic Relations. 14 Michigan Law Review 177 at 181.
7 Norton v. Jacon, (1653) Style 398.
1 Hall v. Hollander, (1825) 4 B&C 660 ; “The incidental expenses incurred in consequences of the injury can be
recovered: but where the loss of service by the parent cannot be sustained it is very doubtful whether the parent could
recover for such expenses, though under an obligation to incur them. “Everysley, Domestic Relations 3rd Edn., 581.
2 Manvell v. Thomson, (1826) 2 C &P 303; Eager v. Crim Wood, (1847) 1 Ex 61 .
3 P. 657, 7th Edn.
4 Carr v. Clarke, 2 Chit 260; Manwell v. Thomson, (1826) 2 C&P 303; Dwire v. Stearns, (1919) 44 ND 199.
5 Bennet v. Allccott, (1787) 2 TRR 186, per Buller, J.
6 Terry v. Hitchson, (1868) LR 3 QD 599.
7 Benham v. Gambling, (1941) AC 157per Goddard LJ.
8 Hedges v. Tagg, (1872) LR 7 Ex 283.
9 Hamilton Long (1903) 2 IR 407; Peters v. Jones, (1914) 2 KN 781. In action to remedy of seduction it was observed:
“...........the quasi-fiction of servitium amisit affords protection to the rich man, whose daughter occasionally makes his
tea, but leaves without redress the poor man whose child.......is sent unprotected, to earn her bread among stranger.”
Note to Grinnel v. Wells, (1844) 7 Man&G 1033 quoted by Winfield at p. 656.
10 Vardarajan v. State of Madras, AIR 1965 SC 942 [LNIND 1964 SC 223]. Madholakar, J. said: “We......... would make it
clear that the mere circumstance that the act of the accused was not the immediate cause of the girl leaving her father’s
protection would not absolve him if he had at an earlier stage solicited her or induced her in any manner to take this
step.” (p. 947). Thus it seems that a person who makes a proposal to such a girl and subsequently marries her would
be landing in difficulties; if the entire question is considered to be dependent on ‘who took the initiative’.
1 The Indian law of seduction seems to be the same as English law: Ramlal v. Tularam, ILR 4 All 97, per Stuart CJ., see
also Thakoor Dhobi v. Subansi, AIR 1942 Nag 99 where circumstances in which a seduced girl may bring an action
have been stated.
2 At 655 (7th Edn.).
3 The Province and Functions of Law, 523 (Third Printing).
4 Individual Interest in the Domestic Relations, 14 Michigan Law Review, 177 at 181.
5 See the interesting Full Bench Punjab case, State v. Major Singh, AIR 1963 Punj 443 (FB) where majority (Capoor and
Mehar Singh. JJ.) took the view that a girl of seven and half months cannot have any modesty and therefore the
offence of outraging her modesty under section 354, IPC was not committed. Gurdev Singh, J. dissented.
6 Queen v. Barnardo, (1891) 1 QB 207 ; In re, Agar Ellis, (1883) 24 Ch D 317; Ex parte Skinner, 9 Moore 278.
7 See cases discussed in Chapter VI under the sub-head ‘Before 1839’ of this work.
1 AIR 1925 Oudh 282 .
2 AIR 1961 Punj 51 .
3 ILR (1949) 2 Cal 374 .
4 ILR (1949) 15 Lah 630 .
5 AIR 1944 Cal 433 .
Page 38 of 40
6 Under Indian Law the Principle is extended to husband section 19, the Guardians and Wards Act, 1890.
7 (1836) 4 Ad&El 624: 44 RR 440.
8 (1821) Jacob 226.
9 In re, Goldsmith, (1876) 2 QBD 75.
10 (1884) Ch 2 Dg & Sm 475.
1 Lynes v. Blekin, 23 RR 38, per Lord Eldon.
2 Andrews v. Salt, (1872) 8 Ch App 622; In re, Besant, (1879) 11 Ch App 508.
3 Hill v. Hill, 10 WR 400; Stourton v. Stourton, 3 DM & G 760; Talbot v. Srewsbury, 48 RR 203.
4 AIR 1914 PC 41 .
5 In the matter of Jossy Assam, AIR (1896) 23 Cal 290 .
6 Finley v. Finley, (1925) 40 ALR 937.
1 11 Ves 530.
2 (1858) 1 Sw&Tr 94.
3 (1927) 31 RR 15.
4 Lord Redsdale posed the question: What are the grounds on which the custody of the child is given to father? and said,
first, for their protection, care and education. Is it not clear that if the father does not give that protection, does not
maintain them, the law interferes for the purpose of compelling maintenance of the child? It is not clear that if he cruelly
treats the children in any manner, that a court of criminal jurisdiction would interfere. There is also jurisdiction to control
the father in the matter of education of his children.
5 2 Russ 1.
6 (1883) 24 Ch 317.
7 In the matter of Jossy Assam, ILR (1895) 23 Cal 291 per Sale, J.; Jwala Pd. v. Bachhu Lal, AIR 1940 Cal 215, per Das,
J.; Jiwan Kishana v. Sailendra, 1946 Cal 272per Das, J.; see also In the matter of Lovejoy Patel, AIR 1944 Cal 433 .
8 188 RR 844.
1 (1876) 2 QBD 75.
2 (1833) 24 Ch 317.
3 (1893) 1 Ch 786 . In re, Mcgrath, per Lindley, L.J.
4 In re, A. and B., (1897) 1 Ch 786.
5 Ward v. Klverty, (1925) AC 101.
6 J. v. C., (1969) 2 WLR 540 (HL).
1 (1950) 1 All ER 1057.
2 (1955) 2 All ER 1057.
3 (1959) 3 All ER 746.
4 (1959) 3 All ER 181.
5 (1963) Ch 315.
6 (1926) 1 Ch 676 .
7 See also judgment of Wiberforce, J. in (1963) 3 WLR 357.
8 (1963) Ch 381.
1 (1963) 3 WLR 408 Lord Jenkins, Lord Hodsonand Lord, Devlin concurred with this conclusion. Lord Jenkins said: ‘I
appreciate that the welfare of the infant is the paramount consideration, but surely this requirement can only be
complied with if the judge or the matter on his behalf is given a wide discretion to determine whether the disclosure
sought by the parent in the particular case is in the best interest of the ward.’ (p. 429).
2 Sukhdeo v. Ram Chandra, ILR (1924) 46 All 706 ; Nibett v. Nibett, AIR 1935 Oudh 133 ; Seeyati v. Ovikanath, AIR
1946 Mad 110 [LNIND 1945 MAD 216]; Jivan Krishna v. Sailendra, AIR 1946 Cal 272 ; Md. Saddiv v. Wafati, 1948
Oudh 51; Kalippa v. Valliammal, AIR 1949 Mad 609 ; Gopali v. Shri Chand, AIR 1955 All 28 [LNIND 1954 ALL 118].
3 G.A. Ayyadorai Pillai v. E.H.B. David, AIR 1960 Mad 519 [LNIND 1960 MAD 29], per Anatrayayakam, J.
Page 39 of 40
4 46 CJP 1221; 39 CLS 89; New York Domestic Law para 70.
5 Article 44, Family Code
6 The Act of 1957 amending the Civil Code of 1900: Sec. 1626 BGB.
7 Code of Family Law, 1964, Article 155: In the East-Europe any Countries, authority is vested in what is called there
‘Public Guardianship Authority’ which decides all questions of guardianship and the welfare of children is the prime
consideration.
8 No. 46/677 (1946) 9 Sud Prak SSSR 4.
1 For instance, in In re, Wimcom, 144 RR 257, Vice-Chancellor Sir W. Page rejecting the application of the mother for
access said that such a course would subject the child to two influences and it would not be in the interest of the child.
2 (1944) 6 Sud Prak SSSR 31.
3 (1893) 1 Ch 786 .
4 (1946) 4 Sud Prak SSSR 7.
5 (1939) 14 Sov Yust 70.
6 (1948) 2 All ER 413.
1 AIR 1944 Cal 433 .
2 ILR (1949) 2 Cal 374 .
3 (1948) 2 All ER 413.
4 (1951) P 184.
5 (1954) 1 WLR 366 (369).
6 In re, W, (1963) 3 WLR 789 (Court of Appeal).
7 AIR 2011 Ori 100 .
1 (1948) 2 All ER 413.
2 (1951) P 184.
3 (2010) 10 SCC 314 [LNIND 2010 SC 871].
1 State v. Harbans Singh, AIR 1954 Bom 339 [LNIND 1953 BOM 132].
2 Individual interests in Domestic Relation, XIV Michigan Law Review 177 at 182.
3 Section 12.
1 A centrry of Family Law 441.
2 Mohan Kumar Rayana v. Komal Mohan Rayana, AIR 2008 SC 471 [LNIND 2007 SC 1291].
3 Section 13(ii).
4 Section 10.
5 Section 7.
1 Section 8.
2 Section 26.
3 Bhagwan Kaur v. J.C. Bose, ILR (1904) 31 Cal 11 ; See also Rai Bahadur v. Bishan Dayal, ILR (1982) 4 All, 343;
Chandralekha v. Kuludaivelu, AIR 1963 SC 185 [LNIND 1962 SC 192].
4 AIR 1989 Cal 165 [LNIND 1988 CAL 232].
5 Vijayalakshmi v. Police, AIR 1991 Mad 243 [LNIND 1990 MAD 490].
6 Similarly, under section 9(3) mother can give her child in adoption during the life-time of the father if the latter has
completely and finally renounced the world.
1 Section 9(4).
2 Section 10 and section 13.
3 The Hindu Marriage and Divorce Bill used the words, “has renounced the world”.
4 See Paras Diwan, Modern Hindu Law, 7th Edn., 17-18.
Page 40 of 40
1 Govind v. Kuldeep, AIR 1971 Del 157 . (a case under the Hindu Marriage Act); See also Andhri v. H.R.E., AIR 1957 AP
824, a case under the Hindu Religious and Charitable Endowments.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
7. Natural guardianship of adopted son.—

The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and
after him to the adoptive mother.
Comments
1. Scope
Section 7 deals, interestingly, only with the guardianship of adopted son and is silent about the guardianship of
adopted daughter. The fact of the matter is that there was no need of a separate section for the guardianship of
adopted children. Section 6 deals with the guardianship of both son and daughter, i.e., natural born son and
daughter. If any clarification was thought to be necessary, another explanation to the section could have been
included to say that expression “son” and “daughter” include adopted son and daughter. In fact, in Hindu law
adopted children have always been treated at par with natural children and thus even if there was no section 7,
the adopted children would have automatically included under section 6. But what seems to have happened is
this: before the passing of the Hindu Adoptions and Maintenance Act, 1956, under Hindu law, adoption of a son
alone was allowed; a female child could not be adopted. Adoption of a daughter was allowed only under
custom. The Hindu Adoptions and Maintenance Act, in point of time, is a later statute than the Hindu Minority
and Guardianship Act, 1956. Thus at the time of the passing of the Hindu Minority and Guardianship Act,
adoption of daughters was not permitted under Hindu law. Hence, it seems, the drafters of the Hindu Minority
and Guardianship Act thought to include within the scope of guardianship only the adopted sons and ignored
the adopted daughters for getting that custom, is part of Hindu law and where under a custom, a daughter is
permitted to be adopted, the adoptive parent becomes the guardian of the daughter also.
2. Adopted Children
Section 12 of the Hindu Adoptions and Maintenance Act lays down that 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 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. In short, an adopted child is deemed to be the child of the
adopter for all purposes. His position for all intents and purposes is that of a natural born son; he has the same
Page 2 of 3
rights, privileges and the same duties and obligations in the adoptive family as a natural born child.1 This
obviously implies that adoptive parent is the natural guardian of his or her adopted children. In Crossby v.
Crossby,2 an English case, question came before the court in these circumstances: One Mrs. Crossby, on
dissolution of marriage, obtained an order of the court for the custody of the child of the marriage. Subsequently
she remarried and she and her husband adopted the child. She applied to the divorce in court for permission to
take the child out of the jurisdiction. Davis, J., said that on adoption, by virtue of section 10 of the Adoption Act,
1958, the child no longer remains the child of former parents but becomes the child of adoptive parents.
Therefore, once a valid adoption order is made, the child automatically ceases to be the child of the former
marriage and the custody order also automatically terminates.
Thus, in our submission, adopted son and adopted daughter should be included with the scope of natural
guardianship under section 6 of the Act. It is further submitted that it may not be necessary (as submitted
earlier) to add a second explanation to section 6 laying down that expressions “son” and “daughter” include
adopted son and adopted daughter. In view of this, section 7 may be treated as redundant. Thus, in our
submission, the entire section 6 would be applicable to adopted children, both adopted sons and daughters.
This would mean that father will be the natural guardian of his adopted minor children (both son and daughter),
thereafter mother would be the natural guardian. The mother will be natural guardian of the adopted son or
daughter or son and daughter in the following circumstances:
(a) when the father is dead,

(b) when he has completely and finally renounced the world, and
(c) when he has ceased to be a Hindu.
In terms of proviso to section 6, the mother would be ordinarily entitled to custody of her adopted children who
have not completed the age of five years.
Obviously, the husband will be the natural guardian of his minor wife. It is, in our submission, immaterial that
the minor wife was an adopted daughter, natural born daughter or illegitimate daughter of her parents.
3. Section 7: Adopted Son
Section 7, as is evident applies only to the adopted son. Section 7 lays down that the guardianship of adopted
son at the first instance belongs to the father, thereafter to the mother. The section does not say that if the
father has ceased to be a Hindu or has completely and finally renounced the world, the guardianship would
pass on to the mother. If the section is applied literally (and there is no reason why it should not), then the
father would continue to be the guardian of his adopted children even in these two circumstances. The mother’s
guardianship would commence only when the father is dead.
It is obvious that on adoption the natural parent would cease to be the guardian, and guardianship would
belong to the adoptive parent. Therefore, any alienation of minor’s property made by natural parent (biological
father) would be void ab initio as it is not made by a guardian but a stranger.1 Obviously, adoption should be
valid. However, the court has power to appoint a natural parent as a guardian (it may as well appoint any
person as a guardian in a given case) whenever the welfare of the child so requires such as when adoptive
parent has become unfit.2 But in the absence of such an appointment the natural parent has no capacity or
right to act in respect of the child.3
4. Adoptive Step-parent
Under the Hindu Adoptions and Maintenance Act, when an unmarried person makes an adoption and then
subsequently marries, then such a spouse would be the step-parent of the child.4 Similarly, when a Hindu,
male having more than one wife adopts with the consent of his wives, the seniormost wife is the adoptive
mother and the rest are step-mothers.5 It is obvious that guardianship of such an adopted child does not belong
to the step-parent even after the death of the adoptive parent. A step-parent can only become a guardian by the
appointment by the court. However, the section is silent on this point. But this is natural interpretation even in
the absence of an explanation as has been appended to section 6 of the Hindu Minority and Guardianship Act
which lays down that the expressions “father” and “mother” do not include a step-father and step-mother.
The fact of the matter is that section 7 is a very badly drafted provision and, as has been submitted earlier, it
should be treated as redundant and adopted children should be included under section 6, as the law of
adoption is crystal clear and lays down that an adopted child is for all intents and purposes like a natural born
child.
Page 3 of 3
1 Kesharpai v. State of Maharashtra, AIR 1981 Bom 115 [LNIND 1980 BOM 235].
2 (1953) 1 All ER 891.
1 Kumarsu Manikyalal Rao v. Kumarsu Nagabhushan, AIR 2001 AP 531 [LNIND 2001 AP 512].
2 Ratanammal v. Govindesami, AIR 1934 Mad 44 [LNIND 1933 MAD 293].
3 Odayar v. Natesa, AIR 1933 Mad 710 [LNIND 1933 MAD 144].
4 Clauses (3) and (4) of section 14.
5 Clause (2) of section 14.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
8. Powers of natural guardian.—
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts
which are necessary or reasonable and proper for the benefit of the minor or for the realisation,
protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal
covenant.
(2) The natural guardian shall not, without the previous permission of the court,—
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable
property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than
one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-
section (2), is voidable at the instance of the minor or by any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section
(2) except in the case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for
obtaining permission of the court under sub-section (2) in all respects as if it were an application for
obtaining the permission of the court under section 29 of that Act, and in particular—
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act
within the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and
(4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any
of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie
from the decisions of that court.
Page 2 of 43
(6) In this section “court” means the city civil court or a district court or a court empowered under section
4A of the Guardian and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the
immovable property in respect of which the application is made is situate, and where the immovable
property is situate within the jurisdiction of more than one such court, means the court within the local
limits of whose jurisdiction any portion of the property is situate.
Comments
1. Scope
This section deals with the powers of the natural guardian over the person and the property of the minor
children, though in respect of the powers of the natural guardian over the person of the minor, the section is not
explicit. It merely lays down in general terms in its first clause that the natural guardian of a Hindu minor has
powers, subject to the provisions of this section to do all acts which are necessary or reasonable and proper for
the benefit of the minor. It is from this general statement that powers of the natural guardian over the person of
the minor are to be deduced. In this regard the pre-Act law is fairly settled and recourse has to be taken to the
same.
The six clauses of the section deal with the various aspects of the guardian’s powers over the person and
property of minor children. Clause (1) contains the general powers of the guardian. It has the following aspects:
(a) The clause is subject to the other provisions of the section.

(b) The first part of the clause is very general and relates to powers both over the person and the property
of the minor children: as it lays down that the natural guardian of a Hindu minor has power to do all
acts which are necessary or reasonable and proper for the benefit of the minor.
(c) The second part of the clause relates to the minor’s immovable property. In general terms it lays down:
The natural guardian of a minor has power to do all acts which are necessary or reasonable and
proper for the realization, protection or benefit of the minor’s estate.
(d) The third part of the clause lays down that the natural guardian can in no case bind the minor by
personal covenants.
Clause (2) contains specific provision regarding limitations on the guardian’s general power. It relates to
guardian’s power of alienation of minor’s property. From the aspect of guardian’s power of alienation, alienation
is split into two (a) leases, and (b) other types of alienation. Sub-clause (a) deals with other type of alienations,
viz., mortgage, charge, sale, gift and exchange. Any of these alienations cannot be made except with the prior
permission of the court.
Sub-clause (b) relates to leases. The natural guardian can lease out minor’s property for a period of five years
only but in no case lease can extend to more than one year beyond the date on which the minor will attain
majority. In our submission, since sub-clause (a) contains the word “otherwise” after exchange, it seems that
the natural guardian can give the lease of minor’s property for more than five years with the permission of the
court.
Clause (3) lays down that any alienation made by the court in contravention of clauses (1) and (2) is voidable at
the instance of the minor or any person claiming under him. In other words, such an alienation is not void.
Clause (4) contains the guidelines for the court’s permission. It lays down that the court shall grant permission
to the guardian for alienating minor’s property only in case of necessity or for an evident advantage to the
minor.
Clause (5) relates to the procedure for obtaining court’s permission for alienation of minor’s property. This
clause lays down that the provisions contained in the Guardians and Wards Act in this regard would be
applicable for obtaining prior permission of the court for alienating minor’s property under clause (2). The
procedure is laid down in section 31 of the Guardians and Wards Act. Reference may be made to our
commentary on section 31 in Part III of this work.
Sub-clause (c) of clause (5) lays down that an appeal lies from an order of the court refusing permission to the
Page 3 of 43
natural guardian to do any of the acts mentioned in sub-section (2) to the court to which appeals ordinarily lie
from the decisions of that court.
Clause (6) defines the ‘court’ whose permission is to be obtained. This court is City Civil Court or District Court
or a court empowered under section 4A of the Guardians and Wards Act within the local limits of whose
jurisdiction the immovable property in respect of which the application is made is situate. In case where the
immovable property is situate within the jurisdiction of more than one court, the application may be made in any
court within the local limits of whose jurisdiction part of the property is situate.
2. Guardian’s Power Over the Person of Minor Children
There are no specific provisions in the Act relating to the powers of natural or other guardians over the persons
of the minor children. The Guardians and Wards Act contains some scanty provisions. However, the powers
and rights of the guardians over the persons of the minor are well settled under the general or common law of
guardians. Here we would discuss these and would also refer to some precedents of English law, for guidance.
At one time parental rights and powers over children were considered to be absolute but this is no longer so
under modern law as these rights and powers are also subject to the paramount consideration of the welfare of
children.
The following are considered to be the rights of the guardians over the person of the minor:
A. Right to custody.
B. Right to control religion.
C. Right to control education.
D. Right to give in marriage.
E. Right to control movement.
F. Right to reasonable chastisement.
3. Right to Custody
Under the early Hindu law, the father was entitled to the possession of the person of his children of all ages.1 In
the later Hindu law, the father’s right of custody was confined to minor children, though the karta of the Hindu
joint family exercised some powers even over the adult coparceners. Under the modern Hindu law, the parental
right of custody is confined to minor children.2 In English Common Law the father had almost absolute rights of
custody of his children. Under modern English law no parent can claim the custody of any child as of right.
Functionally, parents and guardians exist to see that children are properly brought up, looked after and
educated so that by the time they attain adulthood, they have fair chance of coming up in life. No one would
doubt that in the nature of things no person can be a substitute for parents. When someone else is appointed
as a guardian, the endeavour, therefore, is to see that guardian comes very near to parents.
To enable parents and guardians to discharge their functions towards children, they are entrusted with the
custody of children. Thus, parents are given custody of their children not as a matter of right. It was this aspect
of the matter which was ignored in the early law and the courts enforced the father’s right of custody of his
children indiscriminately.3 The modern development of law of guardianship has been to control this absolute
parental right and subordinate it to the interest of children. In the early law the father could be deprived of his
right of custody only if he was found guilty of gross misconduct,1 or if he was found unfit.2 Under the modern
law he can be deprived of it whenever the welfare of the minor requires it.3
4. Right to Control Religion
It has been a well-established provision of law in all systems that father has the right to control and determine
the religion of his children. All systems of world which owe their origin to the patriarchal society recognize this
paternal right.4
Before 1925, it was the established rule of English law that the child is to be brought up in the religion of his
father, not merely during his life-time but also after his death. Even if the father dies without leaving any
instruction the child had to be brought up in the father’s religion. It was observed in Talbot v. Earl of
Shrewsbury.5 “Nothing can be more dear to a father than regulating the religious education of his child.” This
Page 4 of 43
right has been considered so supreme and absolute that the father could not contract it out, even under an
ante-nupital agreement with his wife.6 At common law it was under very special circumstances that he could be
deprived of his right, such as by waiver, or for his gross misconduct. In re, Agar Ellis,7 James, L.J., said:
.........he is by law the proper and sole judge of that (religious convictions of his children), and we, as judges of the land,
have no more right to sit in appeal from the conclusion which he has consciously and honestly arrived at, then we
would have to sit in appeal from the conclusion as to the particular church his children should attend, the particular
sermons they should hear.......... At all events, the law has made him, not us, the judge and we cannot interfere with
him in his honest exercise of the jurisdiction which the law has confined in him.
But it is clear that no argument which recognizes any right in the widowed mother to bring up her child in a
religion different from the father’s can be allowed to weigh with me at all.
The learned Vice-Chancellor added that any person who has the guardianship of the child after the death of the
father should have ‘sacred regard to the religion of the father’.8
This position was maintained by the Custody of Infants Act, 1891. Section 4 specifically laid down that the child
should be brought up in the religion of the father.1 This contained to be the position even after the passing of
the Guardianship of Infants Act, 1886.2 However, the common law courts themselves recognized at least one
limitation: the gross misconduct of the father. Even in Agar-Ellis3 James, L.J., said that the father’s moral
misconduct, or profession of immoral or irreligious opinion would deprive him of his right. Abdication of the right
was another limitation recognized. Mellish, J., was quick to add that “a father cannot bind himself conclusively
by conduct to exercise in all events, in particular way, right which the law gives him not for his own benefit but
for the benefit of children.”4 In this case the testamentary guardian did not take the charge of the child for
eleven years and meanwhile the child was educated as a Protestant, the religion of the mother, the court said
that the testamentary guardian could not be given custody as he had already abandoned his right. This was
followed in In re, Clarke,5 and in In re, Violet Nevin.6
In re, Mcgrath,7 four children of Roman Catholic parents were entrusted in the custody of one Mrs. S, a
Protestant, who was, after the death of the father, appointed guardian by the Mother’s Will. The father was
indifferent in his life as to the religious upbringing of his children. Mrs. S. brought them up as Protestants. After
some time a Roman Catholic lady took out the summons for the custody and guardianship of the children on
the averment that the children should be brought up in the Roman Catholic faith. Lindley, L.J., in a very
elaborate and learned judgment quoted the observations of Mellish, L.J., that the court would be doing much
injustice and mischief if it were to hold encouragement to persons who thought that they could get hold of a
child of tender years and educate it for longer or shorter period of time in their own religion and then to assert
that the child had to be educated in that religion. But then the learned Lord Justice added, where the father was
indifferent, then it was in the welfare of children that they should continue to be educated in that religion.
Similarly, in In re, Newton8 where a Roman Catholic father allowed his two children to be educated as
Protestants till the children attained the age of fifteen and eleven, Lindley, L.J., said that it amounted to
abdication of parental rights.
In re, W.,9 an orphan Jew child aged thirteen expressed a desire to his guardian to be educated as Christian,
Cozens Hardy, L.J., said the prime consideration being his welfare, the wishes of a child of such an age should
be respected.
Then in 1925 came Ward v. Laverty,1 the House of Lords observed that the rule that the child should be
brought up in the religion of the father is subject to the welfare of the child.2
The case was decided before the Guardianship of Infants Act, 1925, came into force.
In the year 1931, the Re, Caroll3 was decided. The learned Judges in the Court of Appeal were of the opinion
that the old rule of parental right had been modified by the Act of 1925 so that “to day, as between the father
and mother the court may decide on the basis of the welfare of the infant which religious education it shall be
given.” But Slesser, L.J., said, “This statute however, in my view has confined itself to questions as between the
right of father and mother.” The majority held that, the question being not between parents, the old rule, i.e.,
wishes of the parents are supreme in determining custody and religion of the child, applied.’
Then came In re, Collins,4 in which we find the following bold statement by Sir Reymond Evershed, M.R.:
Page 5 of 43
I think there is no doubt that the rule [i.e., father has power to determine the religion] persisted until 1925, though it may
be that in the interim there was possibly some change of feeling in regard to it. The social philosophy of the times has
altered somewhat, and the result was the passing of the Guardianship of Infants Act, 1925.
The Master of Rolls said in conclusion that in such matters the welfare of children was paramount
consideration.
Before 1925, the wishes of the parent in respect to religious education were not respected in the following
cases: (a) when he was absolutely unfit to have the custody of his children, (b) when he allowed a course of
religion for such a long time that it would be injurious to the child to change its religion, (c) when the father has
abandoned or abdicated or forfeited his parental rights, and (d) when, the child was old enough to have its own
wishes and religious understanding.
After 1925, the rule consistently given effect to is that the wishes of the parents are subject to the paramount
consideration of the welfare of children whether the proceedings are between parents or parents and strangers
or strangers and strangers. Thus the parental right to dictate religion is no longer an absolute right.
The parental right to control and dictate the religion of his children is recognized in Hindu law and
Mohammedan law.1 As a general rule a child should be brought up in the religion of his father.2
In Nadir Mirza v. Munni Begum,3 the court said that it was “loath to take sides in a case between rival
religions.”, but a child born and brought up in his father’s religion should not be handed over to person who
belongs to a different religion. Again, the court4 said that “preference should be given to one who will bring up”
the child, “in the religion of her people”5
In Privy Council in Skinner v. Order,6 said that the mother who has changed her religion is not entitled to
custody of her children.7 In Ram Prasad v. District Judge,8 a female child of a prostitute was in the custody of
her uncle who was also training her in that profession. The child was removed to a Christian mission. The court
held that the child being of impressionable age, should be kept in the custody of a person who was a Hindu.
The court gave custody to a Hindu Vakil.9
It has also been held that the father’s change of religion is no ground for depriving him from the custody of his
children, though his wishes may not be conclusive if the court feels that it would be injurious to the child to give
effect to his wishes.10 Similarly, the court took the view that mere conversion of mother is no ground for
depriving her of the custody, if she can satisfy the court that she would be able to carry the obligation which the
law imposes upon her of bringing up the child in the faith of her husband.11
It has been held that if the father did not care about the religious education of the child and allowed the child to
be brought up in another religion, then he cannot be allowed to assert his rights.
The Allahabad High Court said that if after conversion of the mother to Islam, the child remained with her for
four years, no one is bothering about it, then she could not be removed from the custody of the mother on the
application of a Hindu relative of the child.12 Similarly, in Ma Tuli v. Mola Ibrahim,13 a Muslim mother after
divorce, converted back to Buddhism and the child remained with her for nine years. The court said that the
want of interest shown by the father for all these years amounted to abdication of his right. The father’s
application for custody was rejected.1
In some cases a view has been expressed that if the child is old enough to express an intelligent preference,
his wishes may be considered. In Sarat Chandra v. Foreman,2 where a boy of sixteen years left his brother’s
custody and embraced Christianity, the court said that the custody could not be restored to the brother as the
child appeared to be well able to take care of himself, and of sufficient mental maturity to judge what is best for
himself. This case may be contrasted with Skinner v. Orde,3 and Reade v. Krishna.4 But it seems that in the
latter two cases, the question of child’s wishes did not come for consideration before the court.
It seems that in India, the parental right to control the religion of his children has not been tested on the
touchstone of welfare of children.5
The Hindu Minority and Guardianship Act, 1956, specifically enacts that “no person shall be entitled to act as a
natural guardian of a minor” if “he has ceased to be a Hindu.6” Under the Guardians and Wards Act, 1890, also
Page 6 of 43
the court is required to take into consideration the religion of the child and the wishes of the parent.7It seems
that section 13 of the Hindu Minority and Guardianship Act, 1956, which lays down that the “welfare of the
minor shall be the paramount consideration” and “no person would be entitled to guardianship by virtue of the
provisions of this Act or of any law,” may help the court to over ride this inhibition in the welfare of the child.
In our submission the Indian law has not yet been able to extricate itself from the social philosophy and legal
concept that the religion of the child should be the religion of the father. In a country where religion plays such a
dominant part it is understandable. But in a country which is well set on secularism, this is regrettable. It is
submitted that like all other parental rights, this right too should be subordinated to the welfare of children.
5. Right to Control Education
In England and in India, the parent’s or natural guardian’s power to control the education of the child was of the
same quality as to control child’s religion.8
At English common law the father has no legal obligation to give any education to his children, though his moral
obligation to give them suitable education existed. Lord Kenyan very aptly observed:
The richest man in the kingdom may say to his heir apparent “go and earn your daily bread by your daily labour”, and
the law could not interfere. There is no further obligation than that which nature has implanted in his breast. The law
obliged him nothing but nature.
Although the father has no legal obligation to provide education to his children yet he has been considered to
be the sole judge as to what type of education his child should have.
It seems that the guardian has a legal obligation to give suitable education to children in accordance with the
latter’s social position in life and expectations. Guardians are required to give effect to the wishes of the father.
Lord Cottemham said:
It is needless to observe that the law which permits the father to appoint the guardian of his children will pay highest
respect to the expression of his wishes as to the mode of their education.1
Lord Eldon also expressed the same view in Wellesley v. Beauford.2 At common law at least in one case the
parental wish to give any education to the child could not be given effect to. It was when the father raised
expectations in children, he was not permitted to frustrate them by resuming his control. In Lyans v. Blenkin,3
the father permitted his children to be brought up and educated by their aunt which created expectations in the
mind of children. The court said that it would not permit the father to frustrate those expectations by revoking
his authority.4
It is submitted that after the coming into force of the Guardianship of Infants Act, 1925 and the Guardians of
Minors Act, 1973, this parental right too is subordinate to the welfare of the children.5
The divorce court under the Matrimonial Causes Acts has exercised much wider power. The court has power to
make out a scheme for the education of children. This parental obligation has been further strengthened by the
Matrimonial Proceedings (Children) Act, 1958. (The provisions have been re-enacted in that Matrimonial
Causes Act, 1973)6 which lays down that the court would not pass a decree in matrimonial causes unless it is
satisfied that arrangements have been made “for the care and up-bringing” of every child. Up-bringing includes
education of children.
It has been laid down that “so far as it is compatible with the provision of efficient instruction and training and
the avoidance of unreasonable public expenditure pupils are to be educated in accordance with the wishes of
their parents.”1 The wishes of the parents may be in regard to the mode of education as well as in regard to the
school. However, there is very little scope left for the exercise of parental wish. In Watt v. Kestevan County
Council,2 the court said that the obligation imposed in this regard is no more than this that “the authority must
take into account the general principle weighing it in the balance together with and against other considerations,
provided that the authority has regard to the general principle in this sense. I think it fulfils its obligations.”
The parental wish is subject to the considerations of efficient education and avoidance of unreasonable
expenditure. It is also subject to other considerations, such as the aptitude of the child, suitability of education,
etc.3
Page 7 of 43
Sections 37 to 40 provide for machinery for enforcement of the duty of giving primary and secondary education
to every child. A parent neglecting to perform this duty can be punished, at the first instance, with fine.
Repetition of offence may lead to imprisonment. The local authority may also, with a view to secure regular
attendance of a child, have him brought up before a juvenile court which may pass any order necessary for the
care and protection of the child.
Thus, in respect to children of compulsory school age, the English law now provides for a fulltime education
suitable to the age, ability and aptitude of every child and it imposes a statutory duty on every parent (which
expression indulges a guardian) to send the child to a school or to made private arrangements for the same.
The duty of higher education is still a duty of imperfect obligation.4
Hindu law requires every Hindu child of the twice born classes to go to his guru’s ashram for the study of
Vedas. The debt to rishis is one of the three debts which a Hindu owes, and it is discharged by study of
Vedas.5 Hindu sages,6 divided the life of every Hindu into four ashrams.7 The first of the ashrams is that of
brahmacharya ashram. According to our sages during the childhood an individual should acquire knowledge
and education.1 The upanayana samskara marks the beginning of the education career. By this sanskara the
child is enunciated to his guru. This samskara can be performed only by the first three classes of Hindu.
Obviously, great significance is attached to the upanayana samskara.2 By performing this samskara a person
is reborn, it is a second birth for him; he becomes a dwija.3 Till upanayana is performed, every kumar (male)
was considered as nature-born and therefore, not better they than a sudra and could not enjoy the full rights of
an arya. Thus acquisition of knowledge amounted to second birth. The Mahabharta says:
The father and mother only create body. On the other hand, the life which one acquires from the guru is
divine..........the guru deserves greater respect than either the father or the mother.4
Our sages differ as to the stage at which the education should commence.5 It seems that there is no doubt that
it commenced at an early age, near about ten, and could continue very long, sometimes for the entire life.6
Only on the completion of this Asharama,7 a Hindu was permitted to enter the next ashrama, the grihastha
ashrama.
Sages enjoined on the king to see that this subjects abide by the rules made obligatory for persons following
each of the four ashramas.8 It was also one of the duties of the king to see that the persons learned in Vedas,
rishis, munisacharyas and pandits, pursued their studies and imparted knowledge unhampered.8
It was considered to be the duty of the father to perform the upanayana samskara of his son and send him to
his guru’s house. There was no such duty in respect to female children, though they too were given some
education.
This samskara, we find became a mere formality and ritual much before the British administration of justice in
India.
Section 24 of the Guardians and Wards Act, 1890, says that the guardian of the person of a ward “must look for
his support, health and education.” This obligation is not confined to certificate guardian, but is on all guardians
of person. It is the guardian’s duty to educate the child according to his position in life and expectations.1
In Lovejoy Patel,2 the court said that the guardian is entitled to regulate the mode of education and to select a
place of education for the ward, and if the ward refuses to go there, the court can compel him to go there.
In Annie Besant v. Naryaniah,3 the Privy Council said that if the father permits his children to be educated from
the funds supplied by a third person and if that has created associations or expectations in the minds of
children then he will have no liberty to deprive them of that education by revoking his authority.
In our submission the modern society is fully aware that there lies great social interest in the proper and
adequate education of children. The law is well on the way of imposing it as a legal obligation to enable the
children to receive suitable education according to their ability and aptitude and within the means of their
parents. To enable the parents to be able to discharge this duty, modern States make provision for free
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education of children up to a certain standard. Thus, in this field as in some others, the modern States are
supplementing parental obligation with public obligation.
6. Right to give in Marriage
In the earlier patriarchal societies the father’s powers over his children were comprehensive and included the
right to marry them to any person he chose and the validity of the marriage could not be questioned. In most
systems this power no longer exists. But in all systems where child marriages are permitted, the guardian’s
consent for the marriage is necessary. In most systems it is also accepted that the guardianship in marriage is
not the continuation of paternal power but exists for the welfare of children. In some systems the guardianship
in marriage (or parental consent) is confined to parents, while in some systems, a long list of guardians in
marriage is laid down. The list is made on the basis of proximity of relationship.
The question of guardianship in marriage of female children has been of special significance in Hindu law as
sages enjoined it as a duty on the parents to give away the daughters before they menstruated.4 On the other
hand, there is no text which provides for the early marriages of sons, rather sages enjoined on a Hindu male
that he should marry only when he has completed his education.5 Studentship, which commenced with the
performance of the upanayanam, was necessary for every male Hindu belonging to the twice born classes and
the period of studentship may last, according to Manu, for thirty-six years or for half of that time or for quarter of
it or until he follows the vedas fully. Thus a minor male could hardly marry. But we find that in the postnibandha
era it was reduced to a farce: the ceremony of sanvartana (i.e., ceremony performed after the return of the boy
from guru’s house, indicating that he has completed his study) came to be performed the same day.1
Thus we find that among the Hindus child marriages were not merely recognized and valid, but widely
solemnized.
Hindu law lays down an order of guardianship for marriage of female children. They have obviously not
provided for guardianship in marriage for male children. Some of the ancient texts may be noted here:
To whomsoever a father may give her, as also a brother, under the father’s authority him she should serve while living,
and after death even should not transgress: Manu.2
A father, paternal grandfather, brother, sakulya maternal grandfather, and mother are the givers of a damsel in
marriage; in default of the first, the next in order, if in the natural state of mind, is entitled to perform the ceremony of
the gift: Vishnu3
A father, paternal grandfather, brother, sakulya, the mother, likewise are givers of a girl in marriage. The right to do so
devolves on them successively, so that on failure of the first, the next in order is entitled to perform the ceremony, if of
sound mind: Yajnavalkya.4
The father shall give his daughter in marriage himself or brother with the father’s consent, or grandfather, maternal
uncle, kinsmen, or other relatives.
In default of all these, the mother if she is qualified, if not, the remoter relations should give the girl in marriage.
If there be none of these, the girl shall apply to the king, and having obtained his permission, choose a husband
herself: Narada.5
The Mitakshara school follows the order of guardianship as stated by the sages. The Dayabhaga School
relegates mother to a more inferior position by giving precedence to maternal grandfather and the maternal
uncle over the mother.6
By analogy this order of guardianship is applied to the male minors.
By the process of judicial interpretation, we find that during the British administration of justice in India, the
mother’s position was improved and she was placed immediately after the father. Two arguments were utilized:
(i) texts merely lay down the ceremonial competence of a person and not the power to give in marriage; this is
why certain males were given precedence over the mother, as she does not possess ceremonial competence
under Hindu law, and, therefore, after father, mother could give the child in adoption, and (ii) by the application
of the doctrine of factum valet, if the mother of a child was allowed to give the child in marriage, the marriage
was valid.
It is evident that the above texts do not confer any power or right on any of the relations mentioned by our
sages to give the child in marriage; they deal merely with the ceremonial competence.1 At best the text may be
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taken to confer a moral obligation to give in marriage.2 But it is not a legal obligation.3 This is clearly indicated
by the following text of Yajnavalkya:
If they do not give (her in marriage), they become guilty of destroying an embryo at every menstruation of the damsel.4
Vijnaneshwara commenting upon the above text said that the guardian would be guilty of sin only if he refuses
to give the girl in marriage when a suitable bridegroom is available. The sages also laid down that if the
guardian neglected to give her in marriage, then after the lapse of certain time, she could choose her own
husband. All this goes to show that the texts relating to guardianship in marriage are not mandatory but merely
directory.5 In view of this it has been held that the mother being the natural guardian of her children after the
father, she is the most natural and proper person to arrange for the marriage of her minor girl and any person
placed above her in the texts, cannot prevent her from giving the child in marriage,6 and she can do so even
against the wishes of the guardian for marriage.6
However, a guardian for marriage can obtain an injunction to prevent the guardian of person from performing
an unsuitable marriage of the child,7 such an injunction can be obtained against any person.8
It has been seen above that the texts relating to guardianship in marriage have been considered merely
recommendatory texts as laying down the ceremonial competence of certain persons.1 In view of this the
marriage cannot be held invalid on the ground of non-consent of the guardian. If the proper ceremonies and
rites are performed, the doctrine of factum valet applies and the marriage is valid.2
Similarly, there is a long line of cases taking the view that if the mother in the welfare of the minor child gives it
in marriage and the rite is duly performed, the marriage cannot be set aside even if the father or any other
preferential guardian was not consulted.3
Thus, the doctrine of factum valet applies to a marriage performed without the consent of the guardian. The
doctrine was propounded in the Dayabhaga but was also accepted under the mitakshara school: “A fact cannot
be altered by a hundred texts.”4
The old Hindu law guardianship in marriage is not only of academic interest. Now no minor can marry under
Hindu law and guardianship in marriage has been abolished. Section 6 of the Hindu Marriage Act which dealt
with the guardianship of marriage has been abrogated by the Child Marriage Restraint (Amendment) Act, 1976.
7. Rights to Control Movement, Reasonable Chastisement and Removal of the Child Out of Jurisdiction
At the zenith of the paternal power, the father had the power of life and death over his children. In the modern
law it is no more than power of reasonable chastisement. The modern law considers this power necessary only
in the interest of children. Chastisement and correction do not include the use of force. In the modern view use
of force is not only unnecessary but considered detrimental for the proper growth of the child.
The power to control the movement of the child also stands on the same footing. The parent or guardian can
determine and control, in the interest of the child, its movements and its associations.
Thus, the father or the guardian of the person has the power to control acts, conduct and movement of the
child. He has also the power of inflicting reasonable correction on the child for not complying with his orders
and instructions by personal or other chastisement to a reasonable extent.
The father’s power to control movement of the child exists even if the child is not in his actual custody.
Under the modern law the right of chastisement and right to control movement of the child exist essentially for
the welfare of the child and they can be exercised only in his interest.
Ordinarily, a parent may take out a child anywhere he desires. But if the other parent objects to it or if the child
is a ward of the court or is subject to an order of the divorce court, the child cannot be removed out of the
jurisdiction without the leave of the court.1
Eversley sums up the law in the following passage:
Guardians will be prevented from taking wards of court out of the jurisdiction, and their permanent residence abroad
will not be permitted, except for their manifest advantage, as regards health and the like, and then only after leave is
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obtained. The clandestine removal, or of attempt at removal of a ward out of the jurisdiction is a gross contempt, and
visited with severe pains and penalties. To conceal or withdraw the person of the infant from custody is contempt and
all those who are aware of its place of concealment must divulge.2
In Uhling v. Uhling,3 the Trial Court permitted the children to be taken out to join their father, a repatriated alien
enemy, in his country. The Court of Appeal said that the order was bad. In Halstern v. Halstern,4 the court
refused to grant leave to the mother who on her marriage wanted to remove the children to the U.S.A.
permanently. In Lemaire v. Lemaire5 leave was granted to the father to remove the children permanently to
Australia under the peculiar circumstances of the case.
A child may, on the written undertaking of the parent having custody and on the consent of the other party, be
removed out of the jurisdiction on school holidays.6 An application can also be made to the Registrar for
removing the child out of jurisdiction temporarily, with or without the permission of the other party. In the later
case if the Registrar accords permission he should recite in the order that the consent has been dispensed
with. If a party desires to remove the child permanently, the application must be by summons to a judge.7 No
leave is necessary if after custody order the child has been adopted.8
At one time the court was of the opinion that a ward of the court cannot be, under any circumstances, removed
out of jurisdiction.9 A liberal view is now taken. The Chancery Division as well as the Divorce Division usually
grant permission to take the child out of jurisdiction, if it is shown that it would be for the welfare of the child.
When granting leave, the court may require some undertaking from a responsible person or some security that
the child would be under proper control and would be brought back whenever ordered by the court. A child has
been allowed to be removed out of jurisdiction on ground of health,1 education,2 travel,3 or to live with the
father who is abroad on some official duty,4 or where a parent is compelled to go abroad for reasons of her own
health,5 or to visit some relatives.6
When an order committing custody of a child has been passed, then the court or any other person interested
may give a notice to the passport officer that no passport should be issued in respect of the child without the
prior permission of the court.7 Unless such a notice is given the passport officer will not enquire as to the
existence of any order.
To take a ward of the court, or a child in respect of which the divorce court has passed a custody order, out of
jurisdiction is a gross contempt of the court and the court may refuse to her future proceedings, or strike out the
defence, unless the child is brought back.8Indian law is almost the same as English law, section 26 of the
Guardians and Wards Act, 1890, runs as under:
A guardian of the person appointed or declared by the court, unless he is Collector, or is the guardian appointed by Will
or other instrument, shall not without the leave of the court by which he was appointed or declared, remove the ward
from the limits of its jurisdiction except for such purposes as may be prescribed.
The section as such applies only to the certificated guardian. But it may be invoked in other cases also by
applying to the court.
If a guardian removes the child without the leave of the court he can be punished under section 44 with fine not
exceeding one thousand rupees or with civil imprisonment for a term not exceeding six months.
The principle was thus explained in Walter v. Walter9
While, therefore, leave for temporary residence outside the jurisdiction of the court may be granted for good and
sufficient grounds and under sufficient safeguards, leave for permanent residence of the child abroad and out of the
court’s jurisdiction is not permitted except where it is manifestly advantageous to the child as regards the health or the
like.
The leave granted by the court may be special or general leave. The court is required to define the same clearly
in its order.1 The court may also require security or undertaking for the return of the child within the jurisdiction
whenever it so requires. If the court feels that it would be in the welfare of the child to entrust its custody to the
mother who is living abroad and wants to take the child with her out of court’s jurisdiction then the court will not
hesitate to pass an order in favour of the mother, even though it knows that the child will be out of its jurisdiction
and control, the moment mother takes away the child with her.2
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There is no provision in the Act which requires the guardian to remain within the jurisdiction. Court cannot pass
such an order.3 However, if the guardian remains out of the jurisdiction for a fairly long period, the court has
power to remove him from guardianship.4
GUARDIAN’S POWERS AND RIGHT OVER MINOR’S PROPERTY
8. Right of Alienation for Value
Like the karta of the Hindu joint family, the guardian of the property of the minor has limited powers. Prior to the
codification of Hindu law of guardianship, the guardian’s powers were equated with the karta’s powers in
respect of at least two matters: alienation for legal necessity and benefit of estate. In Hindu law not much
distinction was made between the powers of a de jure guardian and de facto guardian of minor’s property. The
fact of the matter is that Hindu law considered the powers of the karta, guardian and the Hindu woman, holder
of limited estate at par. The leading case of the subject is Hanuman Prasad Pandey v. Babooee Mumraj Kaur,5
which is a case of guardian’s power over minor’s property. This case is an authority on the powers of alienation
of karta, Hindu woman, the Shabait and Mahant, i.e., all those persons who have limited powers over the
estate.
In a series of cases, the Indian High Courts have held that the natural guardian of a Hindu minor has limited
and qualified powers. He can alienate minor’s properties only for legal necessity and benefit of estate.6
The Allahabad High Court has all along accepted the two cases in which the guardian has power to alienate
minor’s property. It has also accepted the proposition that the alienee has the obligation to make due enquiries.
In Kandhia v. Munna Bai,7 as to the alienee’s obligation, the court said that if the alienee or creditor acts
honestly and under a bona fide belief, arrived at after due enquiry that the necessity existed, he is protected
and entitled to recover the debt irrespective of the manner in which the guardian might have ultimately applied
it. This has been the view of the Allahabad High Court since then.1 A Full Bench of the court in 1928,
propounded the test of prudent owner.2 A Full Bench of Bombay High Court said that this test goes too far.3 In
Ragho v. Jagga,4 the Bombay High Court took the same view as to alienee’s obligation and said, “the main
principle involved is that the guardian of property of the minor has not an absolute power but limited power of
disposal of the estate under Hindu law. The test is that this power may only be exercised in cases of necessity
and where its exercise will be for the benefit of the estate Patkar, J., observed:
The touchstone of manager’s authority is necessity5 this has been the view of the Bombay High Court in the earlier6
as well as the later cases.7 A Full Bench of Sudar Diwani Adalat of Calcutta in 1856 in Gooroopersad v. Muddum
Muhum Soor,1 said that the benefit of the minor necessitating alienation was a test on which the legality of a
transaction must be judged. The Privy Council decision in Hanuman Prasad was then not before the court. A more
precise statement is found in Soonder Narayan v. Bemund Ram.2 The court observed: A natural guardian when acting
bona fide and under the pressure of necessity may sell his real estate to pay ancestral debts and to provide for the
maintenance of the minor.3 In another case,4 the court said that an alienation for mere increase in minor’s income is
not valid. The court has also said that it is not necessary for the alienee to establish the existence of legal necessity, if
he can show that he made proper enquiries that is enough.5 Further, the alienee is not required to see as to the actual
application of money to the need.6
The Madras High Court said in 1864 that the guardian can do all those things which a minor, if of age, could
reasonably do for himself.7 In 1925, the court said; that the test of a prudent person was too broadly stated, but
at any rate it indicated on limited and the other limitation was that the transaction should be such which would
have been sanctioned had it been made by a certificated guardian.8 In Govinda Reddy v. Pathimunmiasa9 the
court propounded the test of ‘demonstratedly beneficial’ to the minor or minor’s estate. In 1873, the Bombay
High Court also propounded the test of ‘demonstrable advantage’.10 The court also held that a natural guardian
has power to enter into a family arrangement on behalf of the minor and it is valid if made as a bona fide
settlement of a dispute between members of the family.11 Similarly, a sale executed by the guardian of minor’s
property for discharging a mortgage by minor’s father was held valid.12 But the natural guardian has not power
to alienate minor’s property inherited from the father, by way of gift of love and affection.1 The burden of proof
of legal necessity is on the alienee.2 An alienation without legal necessity is not void but voidable.3 Other High
Courts have also taken this view.4 It is also well-established that the natural guardian cannot alienate minor’s
property for religious or spiritual benefit of the minor. Jagdisan, J., observed:5
I am unable to see how the guardian administering the estate of a ward can deal with the estate on the ground of
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conferring spiritual benefit or welfare or bliss on the minor. The duty of the guardian is to preserve the estate, augment
its resources and manage it as best as he or she can, promoting the interests of the minor, just as much as prudent
owner will manage his own property. The guardian has no right or duty to acquire or accumulate for the minor any
store of spiritual benefit.6
Thus, the guardian of minor’s property, like the karta of the joint family, has limited and qualified powers of
alienation of the minor’s properties. The touch stone of his power is necessity or benefit of estate.
It was also a well-established proposition that the guardian has no power to alienate minor’s property for
spiritual benefit,7 or for any other purpose except the legal necessity and benefit of estate.
As regards alienation of immovable property the law has been modified by this section. Sub-section (1) dealing
with the general powers of the guardian provides that the natural guardian of a Hindu child has power, subject
to the provisions of the section, to do all acts which are necessary or reasonable and proper for the benefit of
the minor child’s estate. Sub-section (2) provides that the natural guardian shall not, without the previous
permission of the court, mortgage, or charge, or transfer by sale, gift, exchange or otherwise, or lease any part
of the immovable property for a term exceeding five years or for a term extending more than one year beyond
the date on which the minor will attain majority. Sub-section (4) lays down that the court shall not grant
permission to the natural guardian to do any act mentioned in sub-section (2) except in case of necessity or for
an evident advantage to the minor.
In Sundari Ammal v. Thiloka Vathi, the Madras High Court held that the father as natural guardian cannot
alienate minor’s property (got by the minor by any of settlement from his uncle) without prior permission of the
court.
9. Sub-section (2): Prior Permission of the Court
Sub-section (2) lays down that for the following, the prior permission of the court is necessary:
(a) mortgage, charge, transfer by sale, gift exchange, etc., of any immovable property of the minor, and
(b) leasing out any part of immovable property for a term exceeding five years or for a term extending
more than one year beyond the date of which the minor will attain majority.
A lease granted by the guardian beyond the statutory period is not binding on the minor.1
Father being the natural guardian was granted permission by courts to sell the minor’s property and directed
that the proceeds of the same be deposited in the bank.2
However, a suit is maintainable in civil court if the sale deed executed by the guardian of the minor without prior
permission of the court.3 Any alienation by a guardian of minor’s property without prior permission of court is
voidable.4 Where a mother sold immovable property of her minor sons acting as their guardian and there was
no legal necessity, sale was held void and not voidable, the fact that father had attested the sale deed is
immaterial.5 However, in a suit for specific performance, the suit transaction was entered into by the father for
himself and as a natural guardian of his minor child. The transaction was for the benefit of minor as well as the
estate. Transaction was not challenged by minor under section 8(3), it was held that transaction was
enforceable against the minor also.6 Though any agreement of sale concerning the minor is avoidable at the
instance of minor or any person claiming under him and the guardian has to obtain permission from the court
under section 8. However if minor on attaining majority elects to abide by the terms of the contract then need to
obtain sanction of court becomes unnecessary.7 It has also been held that in the scheme of the Act a
transaction can be challenged by the minor only when he attains majority.8
However, it has been held that when a karta of a Hindu joint family alienates minor’s undivided share in the joint
family properties, prior permission of court is not required.9
10. Sub-section (4): Necessity and Evident Advantage to the Minor
The court will accord permission to the guardian for any of the foregoing alienations only in case of necessity
and evident advantage to the minor. It would be seen that the expressions ‘necessity’ and ‘evident advantage’
used in sub-section (4) are wider than their counterparts used hitherto in Hindu law, viz., legal necessity and
benefit of estate. They would, it is submitted, certainly include all those things which have been hitherto
considered to be legal necessity or benefit of estate. The only vital difference that has been made seems to be
Page 13 of 43
that what natural guardian of a Hindu minor previously could do without the permission of the court, he can now
do only with the permission of the court. In this respect the law has been brought at par with powers of the
guardian appointed by the court. In our submission this reform is in the right direction. Hitherto, a person was
hesitant to deal with minor’s property, as the element of uncertainty always hung as a sword on his head. Once
the court has sanctioned an alienation, any uncertainty in the mind of a prospective alienee disappears, as he
knows that chances of a re-opening of the transaction are rare.
11. Application for Permission: Guardian should make it
Sub-section (2) makes it evidently clear that an application seeking permission of the court to alienate minor’s
property must be made by the guardian and not by the prospective alienee. In Shivamurthi v. Vijaysing,1 the
Bombay High Court observed:
This scheme intrinsic in the section would itself indicate that the permission contemplated by sub-section (2) must be
applied for by the natural guardian himself. The way in which sub-section (2) is worded also points to that conclusion. It
enacts that the natural guardian shall not without the previous permission of the court, effect a transfer, or a lease of
immovable property of long duration. This makes it clear that in such cases, it is the natural guardian himself who must
apply for that permission.
After the coming into force of the Act that it would no longer be sufficient for the validity of the alienation for the
alienee to show that he made proper and bona fide inquiries as to the existence of legal necessity or benefit of
estate. Sub-section (4) makes it evidently clear that the guardian will be accorded permission by the court only
when he is able to convince the court that a case of necessity or evident advantage to the minor exists,
otherwise the court will not accord permission. Thus in every case application has to be made by the guardian.
The permission can be granted to the guardian and to none else.
Whenever, a guardian seeks permission of the court to alienate minor’s property, the court will be guided by the
provisions of sub-section (4).
An application moved under the provision should comply with the requirement of section 29 of the Guardian
and Wards Act.
12. Guardian’s Power to make a Gift
Under the pre-Act Hindu law, the position of the guardian in regard to making a gift of minor’s property stood on
a different footing than the karta’s power of making a gift. The karta (father) has power to make a gift of love
and affection and also to alienate for religious or pious purposes a small portion of the property.1 But the
guardian has no such power. In Palani Ammal v. Kothandrama,2 the guardian of a minor made a gift of some
property of the minor to a paternal aunt on the occasion of her marriage. It was also averred that the said gift
was promised by the father of the minor to his sister and which could not materialise earlier on account of
certain unavoidable circumstances. The Madras High Court said that it is not correct to say that whatever the
karta can do the guardian can also do. King, J., said that such a gift can be validated only if it is made for
purposes binding upon the minor. If the minor had been a major he might or might not have made the gift. Such
a gift is not binding on the minor. In Wamanrao v. Shantibai,3 the natural guardian purported to relinquish the
reversionary claim of the minor, who was his wife. The court held that the guardian has no such power.4
In in the matter of Lalitha Bai,5 on the guardian’s application to spend some amount in the marriage of sister of
minor, the court said that the guardian has no such power. The court very aptly said “the guardian has no right
or duty to acquire or accumulate for the minor any store of spiritual welfare or benefit.”
The guardian has no power to make a gift of love and affection on behalf of the minor.6 The power belongs only
to the father-karta of a Mitakshara joint family.
It appears that the law after the coming into force of the Act stands somewhat changed. Clause (a) of sub-
section (2) specifically mentions “gift” which guardian can make with the prior permission of the court. Of
course, it must be justified on the touchstone of “necessity” or “evident advantage” of the minor. In our
submission the matter would still be governed by the personal law of the minor. Since there is no decided case
in which a gift by minor’s property by guardian was held valid and justified, such a case may not come. But
such are the diverse ways of life, may be, a case of gift by the guardian comes before the court. In such a case
the court has power to accord permission in case the guardian convinces it that the proposed gift is necessary
or for the evident advantage of the minor.
13. Alienation of Movable Property
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Alienation of movable property does not fall within the inhibition of clause (2) of the section and would thus be
governed by the general provision contained in clause (1). An allegation of movable property must be
necessary or reasonable and proper for the benefit of the minor. In our submission that matter would not be
governed by the rule laid down in Hanuman Prasad, as clause (1) is sufficiently broad to cover the case of
alienation of movable property.
Rajendra Prasad Agrawal v. Abnesh Kaur,1 is an interesting case as how some intermeddlers can create
problems for the natural guardian and the minor. In this case on the demise of the father of the minor, Kamal
Kishore, his natural mother, Abnesh Kaur, became his natural guardian. But a person filed an application in the
district court for appointment of himself as guardian and obtained a stay order that the dividend amount due to
the minor on certain shares be not paid to the mother till the disposal of his application for guardianship. The
court passed such orders. On appeal, Satish Chandra, J., rightly said that since no one else was appointed as
guardian by the court, the mother is the natural guardian of the person and property of Kamal Kishore, and in
that capacity she is entitled to receive dividend money. The learned Judge added that the natural guardian is
entitled to receive and take over all the properties of the minor, including the dividend amount and she has
power to deal with it in the best interest of the minor.
The natural guardian has also power to advance minor’s money for the purpose of business if that becomes
necessary in the course of business.2
POWER TO ENTER INTO CONTRACTS
On the basis of Hanuman Prasad, a very broad view was propounded by some courts and it was said that the
guardian has not only the power to enter into contracts but also to take loan on behalf of the minor. Some
confusion has been created by the following four Privy Council decisions. Waghela Rajsanji v. Sheikh
Masuludin,3Inder Chandra Singh v. Radha Kishore,4Kocherlokota v. Maharaja Rani,5Kakulan Subramanyana
v. Kurra Subba Rao6 and Sarvarjan v. Fakhruddin.7
In Waghela Rajsanji v. Sheikh Masuludin,8 the father of a minor died leaving behind a debt which was binding
on the family. In settlement of the debt the mother of the child as his guardian conveyed certain lands to the
creditor. The land was rent free grant, but the creditor, to be on safe side, took a covenant from the guardian
that in the event of the Government charging any rent from him, he would be indemnified. The main question
before the Privy Council was whether the covenant was binding on the child. Their Lordships of the Privy
Council observed:
Their Lordships are not aware of any law in which the guardian has such a power, nor do they see why it should be so
in India. They conceive that it would be very improper thing to allow the guardian to make the covenant in the name of
his ward, so as to impose personal liability upon the ward, and they hold that in this case the guardian exceeded her
powers so far as she purported to bind her ward, and that, so far as this suit is founded on the personal liability of the
talukedar (child), it must fail”.
(Emphasis Author’s).
This case has been interpreted by some of our High Courts as laying down the rule that the guardian has no
power to enter into a contract so as to bind the child. It is submitted that the case may be treated as an
authority for the proposition that a guardian cannot enter into a contract imposing onerous obligations on the
child.1
In Indur Chandra v. Radha Kishore,2 after the death of an ijaredar, his mother and widow remained in
possession of a leased piece of land as manager, under his Will which also authorised the widow to make an
adoption. Subsequently a son was adopted. The lease having expired was renewed for a period of five years,
but was surrendered after the expiry of a period of two years—during this period the son was minor. When the
son attained majority, the lessor brought a suit for the recovery of rent for three years for the lease. It may be
noted that the lease was not renewed as guardian of the child, but as ‘mother of the late Gopi Mohan Ghose’
and as ‘the mother of the minor adopted son’; and both the ladies bound themselves to pay the rent. This fact
weighed heavily with the Privy Council which said that as between the two ladies and the child, they might be
able to show that the estate ought to bear the burden they have taken upon themselves but they had not put
this the question before the court. Such a contract cannot be personally binding on the child.
Then came Rajah Kocherlokota v. Maharaja Ravi,3 the guardian of a minor granted a simple mortgage of a
village as a security for the price thereof with his personal covenants for the payments thereof. But since no
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payment was made the mortgagor brought an action against the child who had then attained majority. In the
lower court a decree was passed against the entire assets of the child. The Privy Council held that a decree
against the entire assets could be passed as the child has no personal liability, though a decree could be
passed against the properties which were sold and subsequently mortgaged with the plaintiff. In Kakulan
Subramanyana v. Kurra Subba Rao,4 the respondent’s father prior to his death had incurred certain debts,
including a debt of Rs. 16,000 due to the appellants and secured by two promissory notes, and a debt of Rs.
1,200 due to one Ramayya and secured by mortgage. By an agreement in writing the respondent, being minor,
‘by guardian and mother’ agreed to sell certain land to the appellants for Rs. 17,200. The purchase price was to
be applied as to Rs. 16,000 in discharging the promissory notes and as to Rs. 1,200 in discharging the
mortgage debt. The contract provided that a sale-deed was to be executed and registered and delivered to the
appellants at their expenses and upon their request. Since no sale-deed was executed though, the appellants
were given possession, the present suit was commenced by the respondent through his mother and next friend
for possession of lands, and for mesne profits. Their lordships observed that a minor’s contracts being void
could not be specifically enforced, but the contracts entered into on behalf of a minor by his guardian or
manager of his estate were on a different footing; such contracts could be specifically enforced by or against
the minor if the contract is one which is within the competence of the guardian to enter into on his behalf so as
to bind him by it and provided further that it is for the benefit of the minor. In the result the contract was held
binding. This decision, it seems, lays down that the guardian has power to enter into all those contracts which
he is competent to enter into, such as contract for legal necessity or benefit of estate, provided they are for the
benefit of the minor.
A reference to Mir Sarvarjan v. Fakhruddin1 should also be made, though the case is under Mohammedan law.
The question before the court was whether specific performance of the contract validly entered into on behalf of
a minor could be granted? The Privy Council said that it is not within the competence of a guardian or manager
of minor’s estate to bind the minor or minor’s estate by contract for the purchase of immovable property and
that “as the minor in the present case was not bound by the contract there was no mutuality and that the minor
who had now reached majority could not obtain specific performance of the contract. This case, it seems, lays
down that the guardian has no power to enter into contracts so as to bind the minor. However, it should be
noted that the case dealt with the parties who were Mohammedans. It is submitted that ratio decidendi of the
case should be confined to contracts for the purchase of immovable property. Although, we would so, the court
in later case have held that usually a contract for the purchase of immovable property in for the benefit of the
minor. It is further submitted that, in any case, this decision cannot affect rules of Hindu law. In fact, Mir
Sarvarjan is responsible for much of the confusion and conflict in judicial opinion.
We would proceed to review some of the contracts entered into by the guardian on behalf of the minor.
14. Contract for the Sale and Purchase of Immovable Property - The Doctrine of Mutuality
When Mayne wrote the following passage, the Specific Relief Act, 1963 was not on the statute book and the
doctrine of mutuality ran rampant:
It is not within the competence of manager’s estate or of a guardian of a minor to bind the minor or his estate by the
contract for the purchase or for the sale of immovable property; and as the minor is not bound by the contract, there is
no mutuality and the minor cannot obtain specific performance of the contract. Nor is he liable to return a sum of
money paid to his guardian as earnest money in respect of a contract of sale of immovable property since the amount
can only be treated as having been paid as security for the performance of a contract which in law is no contract.1
The above statement is obviously based on the decision of the Privy Council in Mir Sarvarjan v. Fakhruddin2
which is responsible for much of the confusion in our law. This decision is said to have introduced the doctrine
of mutuality in the Indian law. The doctrine of mutuality means that at the time when a contract is entered into it
should be enforceable by or against either party. The equitable doctrine of mutuality was introduced in English
law from a desire of symmetry. In England it was soon discovered that it is of doubtful utility. In Salisbury v.
Hatcher3 Knight Bruce, V.C., stating the scope of the doctrine said, ‘in case of specific performance, the want
of mutuality is a consideration generally material, but it is contrary to principle and authority to say that perfect
mutuality is required in order to call a court of equity to action. There are cases in which plaintiffs have had a
decree for specific performance against defendants, who, when the bill was filed were not in a condition to
enforce specific performance in their own favour.’ It was very aptly said, “Legal science provides many
illustrations of the common place, that a generality may be a good servant, but a bad master. In other words, it
is one thing to refuse specific performance on the ground that the remedy is not, in the particular case, mutual
and quite another to lay down, as a universal principle, that without mutuality the remedy of specific
performance will not be granted.” Already many exceptions are recognized under English law: for instance, it is
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not applied to conditional contracts, unilateral contracts, waiver by contract, transfers with incidental covenants,
contracts of minors embodied in compromise decrees and contracts to transfer future property.4
Before Mir Sarvarjan, it was the established opinion that the doctrine of mutuality does not apply under the
Indian law.5 This position came to be disputed thereafter.
On July 9, 1887, the Privy Council delivered their judgment in Watson & Company v. Shamlal6 where they held
that a covenant entered into by a guardian for the enhancement of the rent was binding on the minor—the
covenant being held beneficial to the minor. A little later the Privy Council delivered its judgment in Waghela v.
Sheikh Masludin,7 where they held that covenants imposing personal liability on the minor were not binding on
him. In this case the covenant was not beneficial to the minor.
About twenty-three years later, in the year 1911, the Privy Council rendered judgment in Mir Sarvarjan.1 In
between these years the Calcutta and Madras High Courts held that the doctrine of mutuality did not apply in
India and guardian’s contracts could be enforced in certain circumstances. Earlier in 1903 the Privy Council
also delivered its judgment in Mohori Bibi v. Dharmodas Ghose,2 holding that minor’s contract under the Indian
law were void.
The Calcutta High Court held that a guardian’s contract cannot be specifically enforced.3 But in Kairunissa v.
Lokenath,4 such contracts were held specifically enforceable. It was at this stage that decision in Mir Sarvarjan
was rendered. Consequently the matter was referred to a Full Bench.5 “Can specific performance of a contract
validly entered into on behalf of a minor be enforced?” Machlean, C.J., said that if a contract was validly
entered into on behalf of the minor, and there was mutuality in such a contract, it might be specifically enforced.
The other four Judges on the Bench agreed with him. When the matter went back for the decision of the
Division Bench, it held that the contract was validly entered into and there was also mutuality and hence the
contract was held specifically enforceable from this judgment, an appeal went to the Privy Council.
The Privy Council decision in Mir Sarvarjan was followed in Shrinath v. Jaitindra6 and Nirpendra v. Ekherali,7 In
both the cases a contract for sale of minor’s property was sought to be specifically enforced. In the former case
an effort was made to distinguish between a contract for sale and contract for purchase, and it was argued that
the rule in Mir Sarvarjan applied to the latter and not to the former. The court refused to accept the argument.
Earlier in Innatunnisa v. Jankidas,8 a contract for the sale of minor’s property entered into by a certificated
guardian with the sanction of the court was held enforceable. Mir Sarvarjan was distinguished by saying that
the rule did not apply to a certificated guardian.
The Allahabad High Court granted damages to a minor for breach of contract in Bahuram v. Sayedunnissa.9
This was a case of certificated guardian who had entered into contract with the permission of the court. Mir
Sarvarjan was distinguished by saying that it did not apply to certificated guardian. This case was followed by
Munni v. Madan,10Narayandas v. Dhanya,11Bharat Bhai v. Jai Narayan,12 and Jafar v. Zabaida.13 In the
former two cases sale deeds were executed in favour of minors. It was held that minor’s suit for possession
was maintainable. The court took the view that the suit was not based on contract but was founded on the title
acquired by the plaintiff (minor) under the deed executed in his favour. In 1925 the question came directly
before the court in Swarath v. Ram Ballabha.1 But the case was decided on another point; since the person
who entered into the contract on behalf of the minor had no authority whatever, the court said that the question
of specific performance did not arise.
The Patna High Court in Pramila v. Jogeshwar,2 said relying on Mir Sarvarjan, that a lease which imposes a
liability on the minor is null and void. However, the non-beneficial character of the lease was very much in the
mind of their Lordships. Relying on the Full Bench judgment of the Madras High Court in Raghvacharier v.
Raghvacharier,3 the court in Madhav v. Baikunth,4 said that there was nothing in law to prevent a minor from
recovering money on a mortgage executed in his favour. Sarvarjan was distinguished. In Abdul Haq v.
Mohammed Yehia Khan,5Sarvarjan was relied on and the court said that a contract could be specifically
enforced against a minor, but the judges constituting the Division Bench give different reasons. Das, J. was not
prepared to accept it. Wort, J. sitting in the Single Bench in Brahamdeo v. Haro Singh6 held that a contract for
the sale of immovable property entered into by the guardian can be enforced specifically against the minor
provided legal necessity or benefit is shown. Learned Judge distinguished Sarvarjan by saying that it dealt with
the purchase of property which can never be in the benefit of the minor. He also disagreed with the
observations of Das, J., in Abdul Haq v. Mohammed Yehia Khan,5 that there was no distinction between a
contract of sale and contract of purchase. Wort, J., seems to have relied on the rule in Hanuman’s case,7 and
takes the view that want of capacity on the part of the minor is supplied by the guardian and the requirement of
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mutuality is also thereby satisfied. In Rai Satyadev v. Triveni Pd.8 the learned Judge was inclined to take the
view that it was incompetent for the minor or his guardian on his behalf, either to transfer property and become
a transferee, apart from a gift, as such a transfer must be preceded by a contract and minor has no capacity to
enter into a contract, but felt bound by Madhav v. Baikunth,9 Rowland, J., was also of the same view. But none
of the judges referred to Brahamadeo v. Haro Singh.10
Then came Ram Vilas v. Lokenath,11 in which the court gave full effect to Sarvarjan. Shearer, J., (Imam, J.,
agreeing with him) said as to the observations of Wort, J., in Brahamadeo v. Haro Singh, that the doctrine of
legal necessity was part of the law of transfer of immovable property and not part of law relating to contracts: to
all contracts whether entered into by Hindu or non-Hindus, the provision of the Indian Contract Act applied
equally. The learned Judge further said that there was no distinction between the powers of the karta and
guardian and that Sarvarjan governed the powers of the karta and guardian and that Sarvarjan governed the
matter.1 Thus, ultimately, the Patna High Court accepted the doctrine of mutuality.
The Lahore High Court, in Ahmed v. Raja,2 held that though a minor cannot enter into contract, there was
nothing in law which precluded the minor from purchasing property and a sale in favour of the minor could be
specifically enforced, when the consideration had been paid in full and minor had no other obligation under the
contract. In Malla v. Md. Sharif,3Mir Sarvarjan was given full effect.
The Oudh Chief Court in Raghunath v. Md. Bakshah,4 after a review of the authorities, said that a minor could
be transferee, and as to Mir Sarvarjana, it was observed that, that dealt with contract of sale of immovable
property. The court was of the view that Sarvarjan laid down that a guardian could not bind the minor by purely
personal covenants. This case was followed in Sheoratan v. Kalicharan,5 where the court purported to make a
distinction between executed contract and executory contract, the former being valid and enforceable and the
latter being void.
The Nagpur Judicial Commissioner’s Court in Balkrishan v. Lakhu,6 followed the Oudh view. In Krishna
Chandra v. Rishabha Kumar,7 Nyoti, J., after a preview of authorities said that there was a distinction between
a conveyance and a contract. In the former case the court has to see whether alienation is valid, being for legal
necessity or for the benefit of estate, while in the latter the court has to enquire whether it should compel a
minor to perform onerous obligations under the contract. The learned Judge was of the opinion that a contract
for the sale or purchase of immovable property entered into on his behalf by the guardian could not be enforced
against or by the minor because such a contract is of purely personal nature and no personal liability can be
imposed on the minor.
In Ramarao v. Sugan Chandra,8 the court said that two propositions are well-settled: (i) It is not within the
competence of guardian of minor to enter into contract for the purchase of immovable property and such
contracts cannot be specifically enforced and (ii) A manager of a joint family which includes a guardian of
minor, can enter into contracts for the sale and purchase of immovable property and they can be specifically
enforced against the family.
The Bombay High Court in Ranmalsinghji v. Vadilal,1 said that the minor cannot be bound by personal
covenants, following Mir Sarvarjan, the court in Indian Cotton Co. v. Raghunath,2 said that guardian’s contract
on behalf of the minor cannot be enforced and in Gopikrishna v. Tukaram,3 it is said that a guardian has no
authority to enter into a contract for the sale of immovable property, as on the principle of mutuality it would not
be binding on the other party. In Gujoba Tulsiram v. Nilkanth,4 the question directly came before the court. It
was a suit for specific performance of a contract, to sell minor’s property. The court held that such a contract
was enforceable against the minor. Mudholkar, J. (as he was then) after referring to certain authorities5
observed that the test for validity and enforceability of a guardian’s contract of sale on behalf of the minor was
not the existence of mutuality in the contract but whether it was by a competent guardian and for legal necessity
or benefit of minor’s estate. The court took this view in Popat Namdeo v. Jagu Pandu,6 also. Polekar, J.,
discussed some of the authorities and propounded eight points.7
There is a long line of decisions of the Madras High Court. In Novakoti v. Longalinga,8 it was held that since a
sale necessarily involved an idea of contract at its very foundation, a sale in favour of the minor is void. In
Sathruraju v. Basappa,9 the court said that a promissory note executed in favour of the minor was merely
voidable. In Raghavachariar v. Rangachariar,10 the following question was referred to the Full Bench: Whether
a mortgage executed in favour of the minor who has advanced whole of the mortgage money is enforceable by
him or by any other person on his behalf? The Bench answered the question in the affirmative. Wallis C.J. said
that the provision of law which rendered minors incompetent to bind themselves by a contract is enacted in their
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favour and for their protection and it would be a strange consequence of this legislation if they were to take
nothing under transfers in consideration of which they parted with their money. Ayyangar, J. in an elaborate
judgment, said that there is nothing in the Contract Act which prevents an infant from becoming a promisee.
Navakoti8 was overruled.
In Chadavarupa v. Chunuru,11Mir Sarvarjan was followed and the court said that the guardian could not bind
the minor by a contract for purchase of immovable property. In Gangai v. Govinda,1 a vendor sued to recover
possession of properties sold under a sale-deed in the name of the minor by the natural guardian. The court
said that transfer was no doubt in favour of the minor, but he was not the contracting party, it was the natural
guardian who undertook to discharge the encumbrances. The suit was dismissed.
In Kasivasi v. Ramkrishna,2 Devodass J., following Ramajoggya,3 said that specific performance of a contract
can be granted if contract was for the benefit of the minor. However, this was reversed on a Letters Patent
Appeal.4 Wallace J., said that the Full Bench judgment in Ramajoggya purported to lay down that so far, and
only in so far as the contract by a personal covenant, and since Hindu law did not compel him to discharge the
debt for necessary purpose by contract to sell his property. The guardian of the minor cannot bind him by
personal covenants for sale of minor’s property. Trinvenkatachariar, J., posed the question more broadly: Is an
agreement of sale of the immovable property of a Hindu minor entered into by his natural guardian, assuming
the same to have been entered into for necessity, binding on the minor and enforceable specifically against
him? The learned Judge answered the question in the negative and said that the present case; fell directly
within the authority of Mir Sarvarjan. In Subba Reddy v. Guruva Reddy,5 it was said that a sale deed was not
invalid merely because it was executed in favour of the minor. A Full Bench, in Venkatachalam v. Sethu Ram,6
where a sale-deed executed by the guardian of a minor contained a covenant that in case the vendee sold the
property he should re-sell it to the minor, said that the agreement of re-sale being an executory contract lacked
mutuality, and, therefore, unenforceable by either party.7
An attempt to distinguish Mir Sarvarjan was again made in Zeebinissa v. Danaghar,8 where a lease granted by
the guardian on behalf of his ward contained a covenant of the renewal of lease, Vardachariar, J., said that
non-availability of the remedy of specific performance did not necessarily mean that the contract is void; on
account of lack of mutuality a contract might not be specifically enforceable, but then remedy by way of
damages can be enforced. As to the decisions of the Privy Council in Mir Sarvarjan those decisions must be
understood as indicating the limitations on the power of the guardian so as to give the minor the option of
saying that he was not bound by such covenants, and not that covenants were void in the sense that the minor
could not stand by the contract and hold the other party bound by it. Cornish, J., on the other hand made, a
distinction between executory contracts and distinguished Privy Council decision on that basis.
In Raghunathan v. Pavuthakanni,1 Leach, C.J., and Nair, J., took the view that an infant had no capacity to
contract, and, therefore, a covenant by his guardian for the sale of immovable property could not be enforced
against him, and further that the vendee could not claim back the earnest money given to the guardian, as there
was no contract. Thus, once again Mir Sarvarjan asserted itself. Leach, C.J., and Sastri, J., in Rajarathna v.
Shaick,2 reiterated this position.
Then came, Kakuram Sabramanyam v. Kurra Subba Rao,3before Sastri and Wadsworth, JJ., who said that
where a guardian contracts to transfer immovable property belonging to the minor, section 53A of the Transfer
of Property Act, could operate to bar the minor’s claim to recover properties as he was not a transferee within
section 53A. This case went in appeal to the Privy Council which reversed the judgment. In between this period
the Madras High Court in Ghata v. Ghanta,4 and Singara v. Ibrahim,5 reiterated its earlier view that a contract
entered into by a guardian on behalf of a minor could be specifically enforced.
In 1951 the question again came for consideration in Ramalingam v. Babanambal,6 Vishvanath Sastri, J.,
reviewed the relevant case law, including the decisions of the Privy Council and said that a contract for the sale
of the minor’s property entered into by the guardian for the purposes considered necessary or proper in Hindu
law would be binding on the minor from the time when the contract was entered into and could be enforced
against him. The learned Judge also said that in view of the Privy Council decision in Subramanyam, the earlier
Madras High Court decisions taking contrary view were no longer good law. His Lordship also observed that
after the Privy Council decision in Kakuram it is doubtful whether Mir Sarvarjan was still applicable the doctrine
of mutuality was also rejected. The matter again came before a Full Bench in Sitaram v. Venkatrama.7 The
court, by majority, held that contracts entered into on behalf of a minor by his guardian or manager of his estate
could be specifically enforced by or against the minor if the contract was on which was within the competence
of the guardian or manager who had entered into on behalf of minor so as to bind him by it and if it is also for
Page 19 of 43
the benefit of minor. However, an attempt was also made to salvage the principle of mutuality and the majority
said that Mir Sarvarjan was still good law.
In Ram Chandram v. Ayeesha,8 the Madras High Court again reaffirmed that a contract for sale in favour of
minor could be specifically enforced. In view of the decision of the Full Bench in Venkatachalam v. Sethuram,9
giving full effect to rule in Mir Sarvarjan and the decision in Ramalingam following the Privy Council decision in
Subrahamanayam10, the Andhra Pradesh High Court in Suryaprakasam v. Gangaraju,1 referred the following
question to a Full Bench: “Whether a contract entered into by a guardian of a Hindu for sale or for purchase of
immovable property is specifically enforceable against a minor?” After a review of judicial authorities the
question was answered in the affirmative. The court said that a contract entered into by a guardian of a Hindu
minor for sale or purchase of immovable property was specifically enforceable, though in a given case the court
may, in the welfare of the child, refuse to enforce the contract. However, the liability is that of the estate only
and minor was not personally liable.
In 1949 the question came for consideration before the Assam High Court in Hari Mohan v. Sheo Narayan,2
Ram Labhya, J., relied on Mir Sarvarjan and said that the guardian had no power to bind the minor by his
contract; and such contracts are not specifically enforceable. The learned Judge distinguished the Privy Council
decision in Subrahmanyam by saying that in that case a different point was involved. The Madhya Pradesh
High Court also took this view.3 It is very interesting to note that Bharve, J., observed that Subrahamanyam has
not overruled Mir Sarvarjan and both cases should be confined to cases of purchase of property and not in
respect to agreement to sell.
In 1952 in Amir Ahmed v. Mir Nizam,4 the Hyderabad High Court referred the following question to a Full
Bench: Whether a minor who has agreed to purchase property through his guardian can bring a suit for specific
performance of the contract? The case related to guardian’s power of contract under Mohammedan law. The
Full Bench discussed the case in a general way and purported to lay down the law regarding all guardians
irrespective of the fact whether the minor is Muslim or non-Muslim. Mir Saidat Ali Khan, J., (with whom Siddiqi,
J., agreed) after reviewing almost all authorities on the subject, opined that a minor under such circumstances
could generally sue for specific performance of the contract, but in those cases where the guardian is a de jure
guardian and competent to bind the minor by his contract and the contract is for the obvious benefit of the
minor, the minor can bring a suit for specific performance. The reliance was placed on Subrahamanyam and
the learned Judge said that Mir Sarvarjan has to be read with Subrahamanyam which lays down in broad terms
and upholds the contract of the guardian entered into on behalf of the minor, and therefore, such a contract is
valid and enforceable if covered by the circumstances laid down in that case. Deshpande, J., did not agree with
the view of Khan, J. The learned Judge was of the view that contract for the purchase of property could not be
within the competence of the guardian, as purchase cannot be for the benefit of the minor, though a contract for
sale could be within the competence of the guardian provided it could be justified for benefit or necessity. Thus
he is in line with those judges who distinguish Mir Sarvarjan by confining it to its facts.
In sum, the courts holding the view that a guardian’s contract entered into on behalf of the minor for the sale or
purchase of minor’s property is unenforceable, base their arguments on the doctrine of mutuality.
On the recommendations of Law Commission, the doctrine of mutuality has been abolished.1 This has been
done by inserting sub-section (4) in section 20 of the Specific Relief Act. Sub-section (4) runs as under:
The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not
enforceable at the instance of the other party.
In cases coming after the new provision the courts obviously had no difficulty in holding that beneficial contracts
are binding and enforceable.
Radhashyam Kamila v. Kiram Bala Dasi,2 was a contract for the purchase of property for the minor. Salil
Kumar Datta, J., after reviewing some of the leading authorities as well as scholars like Pollock and Mulla, and
referring to sub-section (4) of section 20 of the Specific Relief Act, said that for the purchase of property of the
minor no prior permission of the court was necessary though such contract should be necessary or reasonable
and proper. But such a contract cannot bind the minor personally. The court found the contract for the purchase
of immovable property was beneficial to the minor. The court also observed that such a contract was
specifically enforceable. The same view was taken by the Mysore High Court in Linga Reddy v.
Ramchandrappa.3 After a review of practically all the earlier authorities on the subject, the court said that the
natural guardian of a Hindu minor need not obtain prior permission of the court for entering into contract for
Page 20 of 43
purchasing immovable property. Such a contract is valid till it is avoided by minor or any one claiming under him
as being in contravention of section 8(1), the Hindu Minority and Guardianship Act. Therefore, the court said
that the right to file a suit for specific performance of such a contract vested not in him but in the minor.
It may be interesting to note that the court did not refer to section 20(4) of the Specific Relief Act but based the
judgment on the interpretation of section 8, the Hindu Minority and Guardianship Act. The court observed,
“whatever might have been the position in Hindu law prior to coming into force of the Hindu Minority and
Guardianship Act, 1956, it is clear that after the said Act came into force, the natural guardian of a Hindu minor
is competent to enter into a contract to purchase immovable property, provided the condition specified in
section 8(1) is satisfied”. The court added, such a contract is also specifically enforceable.
This is also the view taken by the Madhya Pradesh High Court in Than Singh v. Berelal.1 In this case, relying
on section 20(4) of the Specific Relief Act, the court said the specific performance of the contract could not
denied on the ground of doctrine of mutuality.2
In our submission the same would be the position of the guardian’s contract to sell the minor’s property. A Full
Bench of the Punjab and Haryana High Court3 said that a minor can always avail of a benefit under a contract
for the sale of his property by his guardian after ratifying or accepting the contract and the same could be
specifically enforced. Such a transaction is valid until duly avoided by the minor.
This, in our submission, is the correct view of guardian’s contracts for the purchase or sale of minor’s
immovable or movable property.
15. Power to Enter into Simple Contracts
It is a well-established proposition of law that guardian has the power to enter into all types a simple contracts
on behalf of the minor. But the guardian must be a duly authorised person.4 All such contracts must be for the
benefit of the minor or the use of the language of sub-section (1), must “be necessary or reasonable and
proper; for the benefit of the minor”. This follows from the observation of Mahajan, J., in Shiramulu v.
Pandarikeshayya,5 that the estate of the minor would be liable for debt incurred or contacts entered into for the
benefit of the minor, if the guardian is personally liable for the debt under the contract. The learned Judge
invoked the doctrine of subrogation. In this case all the judges of the Federal Court were unanimous in holding
that the estate of the minor would not be liable for debts or contracts of the guardian from which he has
excluded his personal liability. But if the guardian has not excluded his personal liability, the minor’s estate will
be liable, either on the basis of the doctrine of subrogation or otherwise.
In Kotta v. Bengari,6 a simple money bond was executed by a de facto polygar in respect to certain debts taken
by him. It was established that the debt was for a necessary purpose. The court said that the absence of title in
the polygar was immaterial; if a creditor has advanced money even to a usurper for a purpose binding on the
family, the debt could be recovered. In Duraisami v. Mutthial,7 a bond was executed by the guardian to pay a
debt, no charge having been created on minor’s estate, it was held that it could be executed against the minor,
as it was made for a pre-existing; liability binding on the minor. In Tirumalai v. Mothaswami,1 the guardian of a
minor executed a bond in favour of a mortgagee to pay certain expenses incurred by him which were
considered reasonable and binding. The court said that a decree could be passed against the estate of the
minor. Admittedly, if the properties were specifically charged such a decree could be passed. This was also the
position taken by the court in earlier cases.2
In Batch Ramajogya v. Vajjulu Jagannadhan,3 the plaintiff sued for the recovery of money due on a mortgage
deed executed in his favour by the mother of the minor as a guardian. The money was borrowed for a purpose
binding on the minor. The trial court held that the minor was bound to liquidate the debt and a money decree
was passed against him. On appeal the main point argued before the Single Bench of Napier, J., was: No
personal decree could be passed against a minor child on an obligation created by the guardian. Even though
there was sufficient authority of the Madras High Court to repeal this contention, it was argued that full effect
was not given to the decision in Waghela,4 that the decision in Indur Chandra v. Radha Kishore,5 laid down
that in the absence of a specific charge on the estate no decree could be passed against a minor or his estate,
and that in view of this, the decision in Tirumalai,6 was inconsistent with the Privy Council decision. Napier, J.,
referred the case for the consideration of Full Bench.
In the Full Bench, Seshagiri Ayyar, J., said that Mir Sarvarjan7 laid down that onerous covenants could not be
imposed by the guardian upon the person or property of the minor. With this view the Lordship agreed. As to
decision in Waghela, the learned Judge said that he did not think that it was intended to be laid down that no
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rule to the contrary under Hindu law would be countenanced. The learned Judge answered the reference
(Ayling, J., in agreement) as under:
.............no decree should be passed against the minor or his estate on a covenant entered into on his behalf by his
guardian under which covenant no charge is created on the estate except in cases in which the minor’s estate could
have been liable to the obligation incurred by the guardian under the personal law to which he is subject.8
Wallis, C.J., dissenting said, “a decree cannot be passed against a minor or his estate on a covenant entered
into on his behalf by a guardian for his benefit.9
The rule laid down in Ramajoggya has been followed in the Madras High Court since then.1 In Zeebunnissa v.
Danggher,2 where a guardian entered into a contract for a purpose binding on the minor, the court said that
whether the contract was binding on the minor would depend upon the personal law of the minor. In
Chockalingan v. Muthukarappan,3 a contract of partnership entered into by the guardian was held valid.
In Annamalai v. Muthuswami,4 the entire case law was reviewed and the rule laid down in Ramajoggya5 was
reiterated. Ayyangar, J., said that the rule in Hanuman Pd. applied to contracts of simple loan also. The learned
Judge said: “The liability of the estate, though personal in the English law sense of the word, is not personal in
the sense that the person of the minor even after majority can be arrested in execution. A personal liability
arising out of the contract of the guardian is a liability of minor’s estate only.”
In Sudarsana v. Dallayya,6 a guardian’s contract for the payment of maintenance was upheld. In Palani Pillai v.
Sengamalathachi,7 a family arrangement entered into by the natural guardian on behalf of the minor was
upheld, it being a bona fide settlement of a dispute between the members of the family.
Again, in Vadakattu v. Ake,8 a Full Bench of Andhra Pradesh High Court reviewed the entire case law. The
Bench said that the minor has no legal capacity to enter into a contract; nor can he authorise another to do it in
his behalf. “A guardian, therefore, step in to supplement the minor’s defective capacity. Capacity is a creation of
law whereas the authority is derived from the act of parties. The limit and extent of his capacity are conditioned
by Hindu law. He can function only within the doctrine of legal necessity or benefit. The validity of the
transaction is judged with reference to the scope of his power to enter into contract on behalf of the minor. Even
the personal liability arising out of the guardian’s contract is the liability of the minor’s estate only”.
The Patna High Court has considered the matter in several cases. In Kashi Prasad v. Akleshwari,9 a guardian
executed a hand-note, which did not purport to bind minor’s estate, for a loan taken for a purpose binding on
the minor. It was held that as a minor cannot be bound by personal covenants, the hand-note cannot be
executed against the minor. In Suchit v. Harnandan,10Kashi Prasad was distinguished. In this case the
guardian, executed two hand notes for some loan he had taken for a purpose considered for the benefit of the
minor. The court said that if the guardian has power to alienate minor’s property in certain cases he must
clearly have power to contract loans. The court said that the suit should be on the basis of the loans and not on
the note, the creditor failed in Kashi Prasad because he filed the suit on the note.1
The Calcutta High Court in Khairunnessa v. Lokenath,2 held that a contract entered into by the guardian on
behalf of the minor was enforceable as a minor’s contract was merely void and doctrine of mutuality did not
apply in Indian law. In Bhawal Sahu v. Baijnath,3 the court said that the proposition that a guardian of minor
cannot bind his ward personally by simple contract debt, by a covenant or by any promise to pay money or
damages, is subject to the modification that the promise would not bind the minor unless it has been made
merely to keep alive a debt for which the ward’s property was liable. The court further said that when a third
person entered into dealings with the guardian and advanced money for necessaries for the minor or for benefit
of the estate and took a bond for debt from the guardian, the responsibility rested on him to take care that the
bond; was so drawn as to render the estate of the minor liable for the debt.
In Shrinath v. Jatindra,4 the court said that a conveyance stood on a different footing from a contract for sale
and a guardian cannot bind the minor by a contract for sale. Relying on Waghela5 the court in I & G Investment
v. Raja of Khalikote,6 said that a personal contract entered into by the guardian is not binding on the minor. It is
submitted that the point was not argued fully, when the counsel was confronted with Waghela he switched over
to the argument of pious obligation of the son to pay father’s debts and thus landed in utter confusion.7
The Bombay High Court in Nathuram v. Soma,8 said that the guardian has authority to bind the minor’s estate
for debts taken for a necessary purpose. The money borrowed by the guardian for the funeral expenses of the
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minor’s father were held binding on the minor’s estate. In Ranmalsinghji v. Vadilal,9 the court after referring to
Waghela said that a contract of the guardian on behalf of the minor did not bind the minor or his estate. While
holding that a minor cannot be bound personally, the court said, “by contracts entered into by guardian which
do not purport to charge the estate, we do not think that it necessarily follows that he is exempted from the
liability. If the debt was incurred for necessaries he would, we believe, be bound to pay them.”
The Assam High Court in Hari Mohan v. Sheo Narayan,1 took the view the natural guardian of a Hindu minor
has no power to bind the minor or his estate by a contract for sale even if it was for necessity or benefit of the
minor. The Nagpur Judicial Commissioner’s Court in Jhitibai v. Tejmal,2 said that the guardian of a minor could
not bind his ward personally by a simple contract debt. He could bind his estate only by a document purporting
to bind, it, subject to the qualification that the money borrowed to carry on a family business owned by the
minor might be recovered from the assets of the business. The court followed its earlier decision in Tukaram v.
Ram Chandra.3
The court took a different view in Lalchand v. Nachar,4 and held that a minor’s estate was liable for simple
money bond executed by his guardian to pay the debt of the minor’s father. In Shrinivasrao v. Babo Ram,5
Pollock, A.C.J., felt that the decision in Lal Chand was contrary to the previous decision of the court, especially
that of Jhitibai. However, the court felt that the debt (money was borrowed for the marriage of minor’s sister)
was a ‘necessary’ within the meaning of section 68, the Indian Contract Act, and hence the minor’s estate was
bound. In Sadasheo v. Sankar,6 the court said that the rule that a minor was not personally liable on the
contract entered into by the guardian on his behalf was subject to two exceptions, in which a decree could be
passed against the estate of the minor. These exceptions are the following:
(a) where the contract was for necessaries supplied to or on behalf of the minor or money advanced for
such supplies, and
(b) when the liability is such to which the minor was liable under the personal law to which he was subject.
This case was followed in Pandurang v. Pandurang Ram Chandra.7
After the Privy Council decision in Waghela v. Masuludin,8 and Mir Sarvarjan9 it was accepted by all the High
Courts that the guardian has no power to bind the minor personally by his contracts or covenants. Some of the
High Courts stopped at that and did not go any further. However, an attempt was made, and not without
success, from the Bar to find out some rational basis to saddle the minor’s estate with liability under a contract
entered into by the guardian for a legal necessity or benefit of the minor. The extension of the doctrine
propounded in Hanuman Prasad10 was handy, but was found insufficient. On the one hand, an attempt was
made to widen the scope of ‘necessaries’11 and on the other, the doctrine of subrogation was harnessed. The
scope of ‘necessaries’ under section 68, the Contract Act could be expanded only within limits. But the doctrine
of subrogation proved fruitful. It received its final stamp of judicial approval in 1949 from the Federal Court.1
The Judge of the Federal Court in Kondamudi v. Myneni; Tadavarti v. Myneni,1 reached identical conclusion
though on different reasoning.2
Posing the question, whether minor’s estate was liable for money borrowed by the guardian and if so, in what
manner, it can be borrowed, Kania, C.J., said, that loans taken for legal necessity of a Hindu minor have been
ordered by the courts to be repaid out of the minor’s estate for several years past, that would however be no
justification for extending the principle of necessity to transactions which do not strictly conform to that test. The
learned Chief Justice said that the law as it stands permits a de facto manager to borrow money for the
necessity or benefit of the minor’s estate so as to make minor’s estate liable for the loan when he can do so
without making out a contract between the minor and the creditor’.
Mukerjea, J., posed the question thus: How far a guardian in Hindu law whether a de facto or de jure can bind
his word personally by a simple contract debt, or by a covenant or promise to pay money without creating a
charge on his properties and to what extent, if any, such liability can be enforced against the estate of the
minor? The learned Judge, after observing that where the guardian has excluded his liability under the contract
the minor’s estate cannot be made liable, but in cases where the guardian is also liable, the minor’s estate can
be made liable under certain circumstances, said:
But as the guardian was personally liable under the contract, he would be entitled to reimbursement from the minor’s
estate under the rule of Hindu law if the borrowing was for necessity or benefit of the minor. The creditor in such
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circumstances can invoke the equitable doctrine of subrogation in his favour and claim to be placed in the position of
the guardian for enforcement of the latter’s right of reimbursement against the minor’s estate.
This would, Mukherjea, J., felt, avoid multiplicity of suits as equities could be worked out in one and the same
suit.
On the other hand, Fazal Ali, J., said that a guardian cannot bind the minor by contracts or under any other
obligations and then transfer them to minor’s estate so as to enable the creditor to establish direct relationship
between himself and the estate, though in certain cases, which must presumably be cases of necessity or
benefit of the minor, he might be able to show that the estate ought to bear the burden which he has taken
upon himself in such a case the creditor can directly make the estate of the minor liable under the principle of
subrogation.
As regards simple debts, Mahajan, J., (as he was then) seems to favour the majority view in Ramajoggya.1 As
regards contracts of loans entered into by the guardian on behalf of the minor, the learned Judge said that they
do not bind the minor’s person, but bind the estate by indirect process, i.e., by the application of doctrine of
subrogation. The learned Judge then said that in two cases the lender can have direct recourse to the minor’s
estate:
(a) Where the contract is for necessaries supplied to or on behalf of the minor, and
(b) where the liability is one for which the minor is liable under Hindu law.
Thus, all the judges were unanimous in holding that the estate of the minor will not be liable for debts or
contracts of the guardian from which the guardian has excluded his personal liability. But according to Kania,
C.J., Mukherjea and Fazal Ali, JJ., the basis of liability in all cases was doctrine of subrogation, while Mahajan,
J., said that the direct recourse could be made if the liability is one for which the minor is liable under Hindu law.
In our submission, the view expressed by Mahajan, J., is more in consonance with the basic doctrines of Hindu
law. Under English law the doctrine of subrogation is applied under similar circumstances on account of
technical requirement of the law relating to minor’s contracts. But the invocation of the doctrine is not necessary
under Hindu law. Under our law the touchstone of guardian’s power to borrow money, to enter into contracts or
the charge the minor’s estate on behalf of the minor is not dependent on the fact whether the guardian has the
authority or has not the authority to deal with the minor’s property, or to enter into contracts or to borrow money
but if there exist a emergent need, then its satisfaction is the justification or basis of the liability of minor’s
estate. If there is need, necessity or benefit, the matter ends there, the minor’s estate is liable. In this view,
Hindu law does not look at the question whether the guardian is entitled to reimbursement out of the estate of
the minor, but whether the act of the guardian was such that it justified imposition of liability on the minor’s
estate. If in such a case the lender lends money, he is protected and can recover his money or enforce the
contract against the estate of the minor.
In our submission even after the coming into force of the Hindu Minority and Guardianship Act, this would be
the position. Now the guardian’s contracts would be tested on the touchstone of necessary or reasonable and
proper for the benefit of the minor”. As has been submitted these words are of wider import than the Hindu law
expressions, “legal necessity” and “benefit of estate.”
16. Power to Execute Promissory Note
The guardian, as we have seen in the preceding para, has power to take simple loans on behalf of the minor.
He has also the power to take a debt of security. However, before our courts a question has arisen: Is the form
of security on which loan is taken, material? Does the security of promissory note (or any other negotiable
instrument) stands on a different footing than securities in other forms?
It is a well-established proposition that money advanced to the guardian for the benefit of the minor can be
recovered from the minor’s estate.1
In Keshara v. Balaji,2 and Shankar v. Nathu,3 following Waghela4 the Bombay High Court held that the minor
was not liable on promissory notes executed by his certificated guardian. The suit was based on the notes and
not on the debt. Again Nagindas v. Bhimarao,5 the court held that the minor was not liable on a promissory
note executed by his de facto guardian.
Page 24 of 43
In Bhawal Sahu v. Baijnath,6 the Calcutta High Court said that though a minor cannot be sued on the
promissory note, an action is maintainable on the original debt if money was supplied for necessaries.
The question came for consideration directly before the Madras High Court in several cases. In Ramaswami v.
Sellattammal,7 the court held that reversioners were not bound by a promissory note executed by a widow
even though the loan was taken for a necessary purpose, though it seems that the court was of the view that an
action can be maintained on the debt. In Subramania v. Arumuga,8 the mother as natural guardian executed a
promissory note for a debt which was binding on the minor’s share in the ancestral estate, the court held that
the minor’s interest in the joint family property was liable. Waghela9 and Indur Chandra v. Radha Kishore10
were distinguished by saying that in those cases the guardian purported to impose a new and personal liability
on the minor, while in the present case the note was executed for a pre-existing liability.
In Pudam Krishan v. Natamani,11 the Madras High Court said that a promissory note executed by a guardian
on behalf of the minor for a purpose binding on the minor can be enforced against the estate of the minor, even
though the note was not signed by the minor and he was not personally liable. The court further observed that
the true test of liability is that which has been propounded in Hanuman Pd.12 One counsel arguing that in
Subramania the decree was passed on original consideration and not on the debt, the court said that it did not
consider the distinction of any substance.
Then came Swaminathan v. Natesha,1 where the court made a distinction between a liability arising out of an
ordinary debt and a liability arising out of a debt secured by a promissory note or any other negotiable
instrument. The negotiable instrument, the court said, is intended to be one which can pass from hand to hand
bearing its meaning on its face and which is by itself the basis and evidence of the money claimed, and,
therefore, any qualification of the promise in a promissory note, such as whether it is enforceable against the
minor only when a necessity or benefit to the minor is shown, is wholly foreign to the very idea of a negotiable
instrument. Reilly, J., very aptly said: “If the promissory note is to effect anything, it must create an
unconditional personal liability.” Since the suit was based on the promissory note it was dismissed. Cornish, J.,
observed that if the suit was on the original consideration, the case might have been different.
The correctness of the observations of Reilly, J., was questioned in Satyanarayana v. Maillaya,2and the court
disagreed with the view of Reilly, J., and said that so long as the promissory note conforms to its definition
given in the Negotiable Instruments Act, it is not less conditional simply because then the matter goes to a court
of law and defendant raises some defence, the plaintiff has got to establish some facts before he can succeed
against the minor. The learned Judge observed:
The truth is that in no transaction entered into by a guardian on behalf of the minor can opposite party succeed, if
challenged, without establishing some facts such as that the transaction was for the benefit of the minor or some such
other fact. That such a fact has got to be established does not in my opinion, make the liability under the promissory
note a conditional liability.
The court also observed whether the suit was filed on the note or on the original consideration hardly mattered.
Again in Annamalai v. Muthuswami,3 Rao, J., made a distinction between simple loans and loans on security.
On Letters Patent appeal, Leach, C.J., and Ayyangar, J., said that there is no such distinction, the test in all
cases is necessity. “The liability does not arise out of the instrument, but on the debt evidenced by it, and is
enforced against the state, not on account of the fiction that the contract of the guardian is the contract of the
minor but on account of the substantive principle of the personal law of the minor which creates the liability.”
Another Full Bench of the Madras High Court considered the question in Sivagurunatha v. Padmaivati,4 and
said that to ascertain whether the promissory note is executed on behalf of the minor the surrounding
circumstances cannot be looked into except such as those disclosed in the promissory note itself. Kuppuswami
Ayyar, J., in Vembu v. Subbiah,1 said that a minor is bound by an endorsement of payment made by his de
facto guardian on a promissory note which he purported to execute in the minor’s name. Yet another Full Bench
of the Madras High Court in Myneni v. Kondamudi, Myneni v. Tadaverti,2 held that a de facto guardian of a
Hindu minor could not execute a promissory note in the name of the minor in respect to money borrowed for a
necessary purpose and thereby bind the minor’s estate.
Against the judgment of both the Full Benches, appeals went to the Federal Court.3 In both the cases the de
facto guardian had executed promissory notes and then conveyed the property of the minor in satisfaction of
Page 25 of 43
the debts under the notes. The main question before the court was whether a de facto guardian of a Hindu
minor has power to pass a promissory note in the name of the minor or in the name of the minor as well as
himself, so as to bind his estate? Can a promissory note be valid consideration for the execution of conveyance
by the guardian? The Federal Court considered the question from the point of view of both the de facto and de
jure guardians.
The question was split up in two parts:
(a) When the guardian excludes his own liability under the contract or promissory note, and
(b) When the guardian is himself liable under the contract or promissory note.
As to (a), Kania, C.J., was of the view that negotiable instrument or contract under it was clearly void and
unenforceable against the minor or his estate.4 Fazal Ali, J., was of the opinion that even a de jure guardian
could bind the minor’s estate by contracts of simple loans, much less by the negotiable instrument. Mukherjea,
J., took the same view as Kania, C.J. Mahajan, J., was in agreement with the observation of Reilly, J., in
Swaminathan v. Natesha,5 and said that a minor could not be made liable under a promissory note executed in
his name by the guardian, whether a natural guardian or a de facto guardian.
As to (b) Kania, C.J., said that if the guardian is personally liable on the contract or the negotiable instrument,
such a contract or negotiable instrument will be valid. In such a case the third person can enforce the contract
against the guardian and if the guardian can show necessity or benefit of estate, then he is entitled to
reimbursement from the estate of the minor. Fazal Ali, J., also took a similar view and added that by the
principle of subrogation, the creditor might be allowed to stand in the shoes of the guardian and invoke the
latter’s right of reimbursement out of the minor’s estate. Mukherjea, J., substantially took the same view.
Mahajan, J., after reviewing the entire case law and also relevant texts, said that if the guardian is personally
liable under the note, then he can be sued on the note and he can then claim reimbursement from the minor’s
estate, or the promissory note can be used as an evidence of the debt, as there is no liability on the note; the
liability, if any, is aliunde to note, i.e., on the loan itself, if it is for the benefit of the estate or for legal necessity
or is given for a pre-existing liability that has been discharged by a fresh borrowing evidenced by the note. The
learned Judge observed: “Unless there is a cause of action independently of the promissory note which can
sustain the action, the minor cannot be made liable.
After the decision of the Federal Court, the matter came before a Full Bench of the Andhra Pradesh High Court
in Veddattu v. Ake,1 and the Bench summed up the law thus: A guardian cannot execute a promissory note on
behalf of the minor for reason that the minor’s liability under Hindu law is conditional and, therefore, no
unconditional undertaking can be given by him. The guardian cannot also enter into contracts of loan making
the minor or his estate liable directly to the creditor, the creditor can, getting into the shoes of the guardian,
indirectly work out the guardian’s right of subrogation against the minor’s estate.
In our submission if the liability is considered strictly contractual, there was no other alternative available to the
learned Judges of the Federal Court since under the Indian law minor has no capacity to contract and minor’s
contracts are void.2 Since the minor has no capacity, a contract entered into on his behalf by guardian (or
agent) cannot be enforced against him or by him.3 But if the guardian is also a party to the contract, the
contract can be enforced against the minor indirectly by the operation of the doctrine of reimbursement.
In our submission it was not necessary to consider the liability strictly contractual. In Hindu law the touchstone
of minor’s liability is not based on the contractual capacity of the minor, and not even on the fact that whether
his de facto or de jure guardian has or has not the authority to enter into contract to burden the estate, but on
the basis of the existence of an emergent need justifying borrowing or burdening the estate. If there existed a
need justifying borrowing or burdening the estate, the minor was liable, and then it was immaterial who
borrowed the loan, who burdened the estate or who entered into the contract. If the need is not established, the
minor cannot be burdened, it is immaterial who borrowed the money de facto or de jure guardian; the minor is
not liable. It is also immaterial that guardian has the authority to bind minor’s estate. Minor’s estate can be
bound only when there is an emergent need. The liability, in this view is not contractual but quasi-contractual.
Looked at from this point of view the position would be when a third person has advanced money to the minor
(whether secured or unsecured) or has done something for him, whether directly or through the guardian to
meet an emergent need of the minor, his right to recover the same from the estate of the minor is a right of
Page 26 of 43
reimbursement, because his act has resulted in the benefit of the minor or in the satisfaction of an emergent
need of the minor. If it has not resulted in any such thing, the third party has no right of reimbursement. In our
submission that is the meaning of Manu and other sages who enjoin upon the householder to honour the acts
and contracts of third persons, whether a relative, slave, servant, pupil, or well-wisher. The stress is on the
words “for the support of the family,”1 ‘on the behalf of the family’2 ‘for the use of the family’3 or ‘for the benefit
of the family’.4 The nearest to this in the modern law is the doctrine of unjust enrichment.5
If it is accepted (which in our submission should be) that the basis of the liability of the minor’s estate is unjust
enrichment, i.e., the minor’s estate is liable in all those cases where loan was given, things were supplied for
legal necessity or benefit of estate, then this can be done by enlarging the scope of quasi-contracts.6In Indian
law this can be done by enlarging the scope of section 68 of the Indian Contract Act by adding an explanation
to that section. The proposed explanation may be worded as under:
In this section the term ‘necessaries’ includes the expressions, legal ‘necessity’ and benefit of estate under the
personal law of the incapable person.7
The matter can also be looked at from another angle. Should we insist that under no circumstances a minor’s
contract can be enforced? Could the want of capacity on the part of the minor be not supplied by the guardian
under certain circumstances? In cases under the Guardians and Wards Act, 1890, it has been held that a
contract entered into by the guardian with the permission of the court can be enforced.8 In our submission
under similar circumstances the contract entered into by the natural guardian under Hindu law should be
enforceable especially when Hindu law lays down two broad cases, viz., legal necessity and benefit of estate,
where a third person can incur liability on behalf of another person.
In our submission this would also be the position under the Hindu Minority and Guardianship Act. As far as the
present writer is aware, there is no recent decision on this matter.
Power to acknowledge debts.—Before the amendment to section 21, the Limitation Act, there was a
controversy among our High Courts whether a guardian could acknowledge the debt of a minor so as to extend
the period of limitation. The Bombay High Court took the view that a certificated guardian has power to extend
the period of limitation by acknowledgement of minor’s debt provided it was for the benefit or protection of a
minor’s property.1 Under the original sections 19 and 20, of the Limitation Act, an acknowledgment could be
made by the debtor or “the agent duly authorised in this behalf.” The main difficulty has been whether the
guardian could be considered such a person. The relationship of the principal and agent is contractual
relationship, while the minor has no capacity to contract. In any event the guardian cannot be called the agent
of the minor. The Bombay and Madras High Courts solved this difficulty by saying that the relationship of the
principal and agent can exist independently of any contract.2 The Calcutta and Allahabad High Courts took the
view that in the absence of special authority, the guardian could not be considered to be the agent of the child
duly authorised and as such the guardian has no power to acknowledge the debt.3
The controversy was set at rest by an amendment to the Indian Limitation Act, which provides the expression
‘agent duly authorised’ in sections 19 and 20 includes the lawful guardian of the minor.
It is also settled that only a de jure guardian (natural guardian, testamentary guardian, or guardian appointed by
the court has power to acknowledge the debt and a de facto guardian has no such power4 A time barred debt
cannot be acknowledged.5
17. Power to Make References to Arbitration
It is now a settled proposition of law that a natural guardian (or any other de jure guardian) has power to make
a reference to arbitration of any dispute relating to the property of a minor.1 As early as 1864, the Madras High
Court observed that all acts of the guardian which were such as an infant might, if of age, reasonably and
prudently do for himself, must be upheld when done for him by his guardian. In this case a reference to
arbitration was made by the mother who was the natural guardian of the child of a dispute relating to
succession to the properties of the father of the minor child. The court held that the reference was validly made
and the award was binding on the child as it was for his benefit and was an act which he might have reasonably
and prudently done for himself.2
Trevelyan, J., of the Calcutta High Court said that the natural guardian has power to submit a dispute to
arbitration and the child can get the award set aside only if it is shown that the award is not for his benefit.3 In
Kamal Singh v. Sekkhar Chandra,4 the court said that the guardian’s power to make reference to arbitration is
Page 27 of 43
subject to two conditions: first, the guardian should not have an interest adverse to the minor, and secondly, the
reference must be for the benefit of the child. As to what would amount to benefit, Das Gupta, J., said that no
hard and fast rule could be laid down: the test of prudent owner, the danger to be avoided or benefit to be
conferred might be taken as some of the matters to be considered.5
Whether or not an award is for the benefit of the child has to be judged in accordance with the circumstances
as they existed at the date of making of award, and subsequent events will not be considered.6 In Sadashiva v.
Trimbak,7 where the mother of a child referred to arbitration a claim on mortgage effected by her husband and
the court on the basis of award passed a decree, but in the court proceedings the guardian was not
represented. It was held the absence of the guardian ad litem rendered the decree null and void. In Vishram v.
Gangaram,8 when the guardian made a reference to arbitration to determine whether certain properties were
joint or separate, the court held that the arbitration and the award were valid and binding on the child, as the
award on the whole was beneficial to the child, even though the guardian agreed to give a small portion of the
properties to charity.9
Thus, from very early times the courts have recognized the guardian’s power to arbitration. The test of the
reference to arbitration is the benefit and welfare of the child. In our submission the same test cannot be
applied to the ultimate result of arbitration, i.e., the award. It can happen that in some cases the award may not
be beneficial to the child. But an award cannot be challenged on that ground.
18. Personal Covenants not Binding on the Minor
The last clause of sub-section (1) lays down that ‘the guardian can in no case bind the minor by personal
covenants’. Earlier, there has been acute controversy in the judicial opinion as to whether the guardian can bind
the minor by personal covenants.
The Privy Council in Waghela v. Sheik Masluddin,1 propounded clearly that a minor child was not bound by the
personal covenants entered into by the guardian. In this case the father of a minor died leaving behind a debt
binding on the family. In the discharge of the debt, mother of the child, acting as his natural guardian, conveyed
certain land to the creditor. The land was a rent free grant. However, to be on the safe side, the creditor took a
covenant from the guardian that in the event of the government charging rent from him, he would be
indemnified by the minor. When the matter went to the Privy Council, the Judicial Committee observed:
Their Lordships are not aware of any law in which the guardian has such a power, nor do they see why it should be so
in India. They conceive that it would be very improper thing to allow the guardian to make the covenant in the name of
his ward, so as to impose personal liability upon the ward, and they held that if the guardian exceeded her powers so
far as she purported to bind her ward, and that so far as this suit is founded on the personal liability of the talukedar, it
must fail.
This view was reiterated by the Privy Council in Inder Chandra v. Radha Kishore.2 This view was followed by
the High Courts.3 But then an attempt was also made to distinguish Waghela, and relying on Hanuman Prasad,
in some cases it was observed that the decision did not affect the Hindu law rule which confers such a power
on the guardian.4 Then came the Koudamudi Myneni v. Myneni,5 where the entire matter was thoroughly
reviewed. (This case we have reviewed earlier).
The law has not been statutorily laid down in sub-section (1) of section. It may be noted that section 29 of the
Guardians and Wards Act which deals with similar matter [The provision is analogous to sub-section (1)] does
not contain a similar clause.
19. Sub-section (3): Guardian’s Improper Alienation is Voidable
Sub-section (3) lays down that any disposal of immovable property by a natural guardian in contravention of
sub-sections (1) and (2) is voidable at the instance of the minor or any person claiming under him and is not
void ab initio.1 Thus, it would appear that when any act of the guardian is not necessary or reasonable and
proper for the benefit of the minor or for the realization, protection or benefit of minor’s estate, in terms of sub-
section (1), it would be voidable at the instance of the minor or any person claiming under him, though it should
be noted that sub-section (3) speaks of “any disposal of immovable property” and does not speak of acts or
transactions relating to movable property. But in our submission, since sub-section (3) makes reference to sub-
section (1), any act or transaction in terms of that sub-section would be covered. Sub-section (2) speaks of
alienation of immovable property which can be made only with the prior permission of the court. An alienation
made without the prior permission of the court would be voidable at the instance of the minor or any person
claiming under him.
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Another view is also possible. Since alienation of movable property is not covered by sub-section (1) or sub-
section (2), the law applicable to such an alienation by the guardian will be the pre-Act law. This means that
matter would be governed by the rule laid down in Hanuman Prasad.
An alienation made in violation of sub-section (1) or sub-section (2) is voidable. But, the main question which
has caused some controversy, is: whether a minor whose property has been alienated by his natural guardian
can avoid it by a mere declaration to do so, or is a decree of the court rescinding it necessary? In other words,
can a minor avoid an improper alienation by an unequivocal declaration repudiating the alienation or must he
obtain a decree of the court annulling the transaction? The Orissa High Court recently posed the question thus,
whether it is compulsory for the minor to file a suit to set aside the alienation made by his natural guardian or
could he do so without filing a suit by his unequivocal conduct, such as transferring the property to another
person?2 This question has drawn controversial judicial opinions.
This question has come before the courts under pre-Act Hindu law. In Ramaswami Aiyangar v. Rangachariar,3
the Madras High Court took the view that such a transaction in excess of the limited authority of the manager or
guardian did not require to be cancelled or set aside through court. Leach, C.J., said that unless such a
transaction is part of a decree, it can be avoided by simple repudiation by the minor. As early as 1890, the
Madras High Court observed:4
If a person not having authority to execute a deed, or having such authority under certain circumstances which did not
exist, executes a deed, it is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be
used against them. They may treat it as non-existent and sue for their right as if it did not exist.
A Full Bench of the Madras High Court in Sankaranasayana Pillai v. Kandasamia Pillai,1 observed that if the
minor is co-nominee, a party to a sale-deed, then he must get it set aside.2 A Full Bench of the Kerala High
Court in Chacko Mathew v. Ayyappankuthey,3 said:
It is not always necessary that a party entitled to avoid a transaction not binding on him should apply for its rescission.
He can himself avoid it by unequivocal act of repudiating it.
Similar view was expressed by the Allahabad High Court in Abdul Rahman v. Sukhdyal Singh,4 and Patna High
Court in Jagdamba v. Anadi Nath.5These are the cases under the analogous provision of the Guardians and
Wards Act, section 29.
In Santha v. Cheruketty,6 the Kerala High Court rightly observed and made a distinction between two types of
alienation. According to the court when a transaction has been entered into by a person with limited powers and
the law states that it is voidable at the instance of another, that other can avoid the transactions or affirm it and
the aid of the process of court is unnecessary. However, in certain transactions, which may be thus rendered
void or invalid by the act of an individual, the assistance of the court may be required where, for instance,
possession is with the alienees and in such cases, the party cannot come at his own leisure but must seek the
aid of the court within the period prescribed by the law of limitation for actions. This is in accordance to the view
taken by the Full Bench of the court. In the Full Bench, Madavan Nair, J., added that in such cases the cause of
action is not the transfer of possession. It is the alienation that passed the possession, and therefore, the suit
must be to set aside the alienation itself with a prayer for possession as a consequential or accessory relief. In
the present case V.R. Krishna Iyer, J., rightly said that, in view of the clear provision of section 8 of the Hindu
Minority and Guardianship Act, when a minor is entitled to avoid a transfer effected by his guardian on the
ground of absence of permission of the court, it becomes a nullity by his unilateral act of repudiating it. He can
avoid it by his conduct and there is no need to file a suit for avoiding the alienation. He does not need the
assistance of the court. Once the obligation to institute a suit to set aside the transfer is not there, the decree
can be executed by the minor without getting the sale set aside. The learned Judge observed that the courts
which take the view that an alienation by the guardian is valid till it is set aside by the court have not considered
the impact of section 8 of the Act. That statutory provision enables a minor to affirm or disaffirm the transaction
without a suit (the position of alienation by a de facto guardian is different as such an alienation is void and not
voidable)
In Chaniram Sahu v. Samaru Nag,1after a review of almost all authorities, D.P. Mohapatra, J., of the Orissa
High Court observed that an alienation of immovable property by the guardian of a minor without prior
permission of the court is voidable at the instance of the minor. The learned Judge added that it is not voidable
in the sense that it is binding on him until set aside, but it means that although not binding on him the transfer
Page 29 of 43
may be ratified by the minor on attaining majority. It is open to the minor to avoid the transaction either by filing
a suit to set aside the sale or by unilateral conduct. One such conduct may be to sell the very same property to
another person ignoring the sale by the guardian. There may be situations in which the erstwhile minor may
have to file a suit to establish his title to the property and in such a suit he has to seek the relief of setting aside
the sale deed and has to pay court-fee on that basis. Such situation may arise where the minor is out of
possession of the property and wants to recover possession from the purchaser. A suit by a minor to set aside
the sale has to be filed within three years from the date of his attaining majority as prescribed under Article 60
of the Limitation Act, 1963. If the minor fails to file the suit to set aside the transfer within the prescribed period
his right to the property is not extinguished; the only consequence is that he is debarred from recovering
possession of the property if he has been dispossessed therefrom. It may be noticed here that a few decisions
lay down the aforementioned principles. This in our submission is the correct view.
On the question whether a minor for avoiding transaction which is voidable within the meaning of sub-section
(3) should file a suit for getting it set aside or whether he can just repudiate it without taking recourse to court of
law, B.N. Sampath makes the following observation:
The concept of nullity as spelled out in void and voidable transactions, be it a marriage or any other contractual
transaction, is that whereas the transaction is ab initio void in the former case, it is rendered void in the latter case by a
decree of the court. In the case of a void transaction the party may choose to ignore the transaction in view of the fact
that it has no legal effect at all or where he seeks judicial intervention it will be only in the form of a voidable
transaction, it is only by a decree of annulment the defective transaction is nullified. If the decree of annulment is not
sought within the legally permitted period, the imperfect transaction will mature into a valid legal transaction. It has,
however, been suggested in some cases that voidability can be achieved even by a private exercise of the right by the
party without the intervention of the court. Can the concerned party not exercise his right by conduct? The answer is
quite simple. When a legal transaction like a sale or mortgage has been concluded, it is accompanied by certain
solemnities, the private transaction becomes part of the public record by registration. Therefore, when the affected
party wants to avoid the transaction, law requires him to observe certain necessary formalities such as obtaining
judicial intervention for doing away with the transaction. To draw the analogy from matrimonial law, a party to voidable
marriage cannot merely ignore the transaction, for in the eye of law the parties have been joined together and only
when the party has obtained the decree of annulment, he or she will be released from the imperfect bond.1
In our submission analogy of voidable marriage is misconceived. A marriage confers a status, such a status is
conferred even by a voidable marriage. A decree of the court is necessary for annulling a voidable marriage—to
put the status at end. But an “alienation” by a guardian of the minor which is voidable does not confer a status.
In G. Annamalai Pillai v. Distt. Revenue Officer,2 the minor on attaining majority sought to avoid a lease which
extended beyond one year after his attaining majority and obviously beyond the power of the guardian. In this
case the question before the court was: whether a lease when avoided by the minor on attaining majority
became void ab initio or it became invalid from the date it was avoided? The court held that, i.e., became invalid
from the date the lease was granted, i.e., it became void from its inception, and therefore no statutory right
could accrue in favour of the lessee.
20. Limitation
Another question which has caused controversy among our High Courts is: When the minor challenges an
alienation made by his guardian by a suit, should the suit be filed within three years of attaining majority as laid
down in Article 60 of the Limitation Act, 1961 or could he file the suit within 12 years as under Article 65 of the
Limitation Act?
It appears that section 8 of the Hindu Minority and Guardianship Act brings the power of a guardian of minor
almost at par with the powers of the guardian appointed by the court under the Guardians and Wards Act and,
therefore, some precedents under the latter statutes would be relevant. In that view, there are a number of
precedents which lay down that a minor seeking to avoid a transfer of immovable property by his certificated
guardian without the prior permission of the court, had to do so within three years of his attaining majority. The
earlier reported case of the Madras High Court took this view.3 Thereafter some discordant note was sounded
in some cases,4 and the matter was considered by a Full bench in Mir Ghulam Hussain Sahib v. Ayesha Bibi.5
The Full Bench observed that an alienation made by a certificated guardian without the prior permission of the
court is voidable and not void and operates as a valid transfer unless set aside at the instance of the minor and
the period to get the same set aside is three years from the date of attaining majority. This is also the view
taken by the Calcutta High Court,1 Bombay High Court,2 Allahabad High Court,3 Patna High Court,4 Punjab
Page 30 of 43
High Court,5 Orissa High Court6 and Kerala High Court.7 The Punjab High Court said that a sale made by a
natural guardian beyond his authority is not a nullity but will bind the minor unless he succeeds to get it set
aside within the period of limitation. Such a sale is voidable.6 In Prem Nath v. Bal Kishan,8 Punjab High Court
summed up the position thus:
(a) If, however, a sale is made by a natural guardian who goes beyond the scope of his authority, or if it is
made by a certificated guardian without the permission of the court, the transaction is merely voidable
at the instance of the minor and will bind him till he succeeds in impeaching it;
(b) that a suit by a quondam minor to set aside an alienation of his property by his guardian is governed by
Article 44 of the First Schedule of the Indian Limitation Act;
(c) that if quondam minor brings a suit for possession of the property alienated by his guardian or for
redemption of a mortgage of a property effected by his guardian, the suit will also be governed by
Article 44 of the first Schedule of the Indian Limitation Act and not by Article 148 of the Indian
Limitation Act;
(d) that the proposition of law that plaintiff need not sue to set aside a transfer to which he was not a party
may well apply to the case of a reversioner impugning an alienation by a Hindu widow, but cannot
possibly apply to the case of a minor on whose behalf an alienation has been made by his guardian
and who is for all intents and purposes regarded as a party to the transfer.
The same view was expressed in Sukhde Singh v. Jangir Singh,9which came before the court after the coming
into force of the Hindu Minority and Guardianship Act, 1956.
After reviewing almost the entire case law, a Full Bench of the Punjab and Haryana High Court in Surta Singh
v. Pritam Singh,10 said that from the review of precedent, it would follow that without a hint of any meaningful
dissent the massive weight of precedent is that to impeach a transfer of immovable property by the certificated
guardian without the permission of a court, the minor must sue within the prescribed period of three years after
attaining majority. Once that is so, a fortiori, it follows that the position of a Hindu minor assailing a similar
transaction of his natural guardian is no different, and identical consideration would be applicable to this case
under section 8(3) of the Act. Sandhawalia, C.J., added that apart from the precedents the legal position would
appear to be the same both on principle and the language of the statute. It deserves highlighting that before the
enactment of the 1956 Act, the natural guardian of a Hindu minor was clearly entitled to transfer the immovable
property of the minor for legal necessity or for his patent benefit. If these conditions were satisfied no taint of
invalidity attached to such a transfer and no permission of the court was necessary. At best such a transfer
could be avoided by minor on his attaining majority if he was clearly able to establish that the same was not for
legal necessity or for his benefit or was unconscionable. Therefore, such transfers by the natural guardian of a
Hindu minor prior to 1956 could not even remotely be dubbed as either void or as a nullity. With this
background pointed attention is called to the language of sub-section (3) of section 8. This in terms states that
such a disposal of immovable property by the natural guardian is voidable at the instance of the minor.1
S.P. Goyal, J., expressed a contrary view. The learned Judge drew support from certain decisions. The crux of
the matter is: Whether the minor is under any obligation to file the suit to get the sale set aside by the court
before recovering the property sold by his natural guardian without the permission of the court? The courts
taking the view that there is no such necessity hold the view that matter will be governed by Article 65.
After a review of the Guardians and Wards Act and the Hindu Minority and Guardianship Act, the learned Judge
said that the use of the term voidable does not necessarily mean that the alienation is voidable in the sense that
it is binding on the minor unless it is set aside. The minor, however, may choose to ratify the alienation though it
is not binding on him and it is only to that extent that it is voidable. The term voidable has obviously been used
to convey the latter sense in sub-section (3) because by virtue of the provisions of sub-section (2) of the Hindu
Minority and Guardianship Act, the guardians barred from making any alienation without the prior sanction of
the court. The alienation made by the guardian without the permission of the court would be against the
mandatory provisions of the law and therefore, being not binding on the minor he would not be required to get it
set aside by the court. Still the alienation would be avoidable in the sense that the minor on attaining majority
may choose to ratify it, may be it was for his benefit or for any other reason.2 The learned Judge added that it is
well-settled that whenever the contract is avoidable at the instance of any party, he is not required to go to the
court for avoiding the contract and to get it set aside. The moment the volition is exercised, the alienation
becomes ineffective and void qua the minor. If that is so that the alienation becomes ineffective and the
moment the discretion is exercised by the minor, nothing remains to be done by the court to set aside. The filing
Page 31 of 43
of the suit for the recovery of the property is well known mode of exercising volition by a minor and by doing so,
the minor has effectively exercised the volition and the alienation becomes ineffective and enforceable against
him. There is then the question of setting aside the alienation by court?1 The learned Judge distinguished the
cases taking a contrary view.2 In conclusion Goyal, J., observed that both on precedent as well as on the
provision of the statute he was of the considered view that the suit by a quondam minor for possession of his
property sold by the natural guardian in contravention of section 8(2) of the Act would be governed by Article 65
and not by Article 60 of the Limitation Act.3
21. Restitution of Benefit Received by the Minor
Since an improper alienation made by the natural guardian of a minor is voidable transaction, the minor can
always avail of the benefit thereof and after ratifying or accepting the same enforce it. Such a transaction is
perfectly valid till it is avoided. But he can avoid the transaction only after the restoration of any benefit received
under it. In Sri Chanda Probhuji Jain Temple v. Hari Krishna,4 in different context, the court said that as
condition for setting aside a disposed of immovable property which is voidable, justice requires that there must
be restitution of the benefits received.5
See also para 4 of our commentary on section 30, the Guardians and Wards Act.
1 See, Paras Diwan, Modern Hindu Law, Chapter IX.

2 Under the Guardians and Wards Act, 1890 (Sections 19 and 25) it seems father’s right of guardianship and custody is
recognised in respect to all children belonging to any community.
3 King v. De Manneville, (1804) KB 5 East 211.
1 This is the expression used in common law.
2 This is the expression used in Indian law, sec. 19 of the Guardians and Wards Act, 1890.
3 In our commentary on section 6 we have already discussed the guardian right to custody.
4 The Christians, Romans, Hindus, Muslims, Jews, Parsees and Buddhists subscribe to this view.
5 (1840) 4 My&Cr 672.
6 Andrews v. Salt, (1873) 8 Ch App 622.
7 (1878) 10 Ch D 49.
8 (1871) 6 Ch 539 . This is the consistent view of common law courts: In re, Hunt, (1843) 2 Con & L 373; Austin v.
Austin, (1865) 43 Beav 257; In re, Newbery, (1886) 1 Ch 263 ; Hawksworth v. Hawksworth, (1871) 6 Ch 539 ; In
Re, Montague (1885) 28 Ch 82.
1 Section 4 runs: “Upon any application by the parent for the production or custody of a child, if the court is of the opinion
that the parent, ought not to have custody of the child and that the child is brought up in a different religion to that in
which the parent has a legal right to require that the child should be brought up, the court shall have the power to make
such order as it may deem fit to secure that child be brought up in the religion in which the parent has a legal right that
child should be brought up...........”
2 In re, Scanlan, (1889) 40 Ch 200; In re, McGrath, (1893) 1 Ch 143.
3 (1878) 10 Ch D 45 .
4 Andhrew v. Salt, (1872) 8 Ch AC 622; See also Hill v. Hill, 10 WR 400.
5 (1882) 21 Ch D 817per Key, J.
6 (1891) 2 Ch 299. See also Mosley v. Mosley, (1910) P. 190.
7 (1893) 1 Ch 143.
8 (1896) 1 Ch 740.
Page 32 of 43
9 (1907) 2 Ch 557.
1 (1925) AC 101.
2 The testamentary guardian under the will of a Roman Catholic father, did not take charge of his three children, and the
children were brought up in Protestant faith, the religion of the mother, till the eldest of them attained thirteen years. The
court refused to give custody to Catholic relatives.
3 (1931) 1 KB 317.
4 (1950) 1 All ER 1057.
1 J. v. C., (1969) 2 WLR 540.
2 In the matter of Saithi, ILR (1891) 16 Bom 307 : In re, Joshy Assam, ILR (1895) 23 Cal 290 ; Skinner v. Orde, 14 MIA
309; See also Macnaughten’s Mohammedan Law, 90.
3 1930 Oudh 471.
4 Ram Prasad v. Distt. Judge Gorakhpur, (1920) 5 IC 657.
5 See also Skinner v. Orde, 14 MIA 309; Mansa Devi v. Makkar, AIR 1936 Pesh 207 .
6 14 MIA 309; See also earlier case; Callour v. Narianswamy, (1858) quoted in 9 Mad 391; In re, Manmath Bose, 1 Hyde
111; Queen v. Nisbet Pery, OC 103.
7 See also Reade v. Krishan, ILR (1886) 9 Mad 391 ; Allunit v. Badamo, (1916) 32 IC 632; Ganesh v. Rattan Bai, ILR
(1937) Mad 976; Nadir Mirza v. Munni Begum, ILR (1930) Oudh 471; Dujipada v. Baibeen, (1915) 20 CWN 608; Veera
Swami v. Ratanama, AIR 1928 Mad 1087 .
8 (1920) 5 IC 657.
9 See also Mansa Devi v. Makkar, AIR 1936 Pesh 207 .
10 R v. Bezonji Perry, OC 91; Muchoo v. Arzoon, 5 WR 235; Sham Singh v. Shanta Bai, ILR (1901) 25 Bom 551 .
11 Dujipada v. Baibeen, (1915) 20 CWN 608.
12 Abdul v. Jagannath, AIR 1930 All 255 .
13 1933 Rang 201.
1 See also Jain v. Abraham, ILR (1891) 16 Bom 307 ; Mukund v. Nodeep, ILR (1898) 25 Cal 881 .
2 (1890) 12 All 213.
3 14 MIA 309.
4 9 Mad 391.
5 Dwijapada Karmaker v. Miss Baibeen, (1818) 36 IC 632; Mst. Budhan v. Bahadur Khan, AIR 1942 Pesh 41 ; Yakkob v.
Mt. Radhabai, (1917) 41 IC 571; an attempt to rely on welfare principle was made.
6 AIR 1988 Mad 5183 .
7 Section 17(2).
8 Tremain’s case, (1891) 1 Stra 167; Hall v. Hall, (1749) 3 Atk 721; Mitchel v. Duke of Manchestar, (1750) 1 Dick 149;
Powel v. Cleaver, (1769) 2 Bro CC 499.
1 Campeblly v. Mackay, (1937) 2 My&Or 31.
2 (1927) 2 Russ 1.
3 (1821) Jac 245.
4 See also, Ex-parte, Earl of Illchestar, (1803) 7 Ves 348; Campbell v. Mackey, (1837) 2 My Cr 31; Powel v. Clever,
(1769) 2 Bro CC 499.
5 D’Alton v. D’Alton, (1978) 4 PD 87; Symington v. Symington, (1875) 2 SC & Div 415; Witt v. Witt, (1891) P 163.
6 Section 36
1 Section 76.
2 (1955) 1 All ER 479.
Page 33 of 43
3 The matters that may be taken into consideration are convenience of access and avoidance of traffic danger, that
existence of special facilities at school such as mid-day meal; preference for a single sex school or for a mixed school;
family associations with a particular school, and medical reasons. The religious consideration may be an additional
reason for choosing an alternative school.
4 Section 44 of the Education Act contemplates for the creation of country colleges on part-time, though compulsory
basis. There is no obligation on the parent to ensure child’s attendance in the college.
5 Manu 35; Yaj iii, 57: this period of life was known as brahamcharya ashram.
6 There is some difference of opinion, whether they are three or four. According to Apastamba there are four (II, 9, 21, 1),
so also according to Gautama. (III, 2), Vashishtha, (VII, 1-2), Baudhayana, (II, 6-17) Manu (VI 96). Chendogya
Upanishad mentions only three.
Some quote the following text of Manu: ‘There are three worlds, three Ashrams, three Vedas as also there are said to be
three fires’. (II 230).
7 Maha Santi, 245, 15 quoting Vyasa says “that four stages of life from a ladder or flight of four steps........by ascending
that flight one reaches the region of Brahama.”
1 Kamasutra, 1, ii, 1-6; According to Manu (IV, 1) the first part of life, i.e., first twenty-five years, one should learn at his
teacher’s house. In Rig Veda also mention of this Asharam is made, X, 100, 5.
2 Jamini, VI, 1, 35; Rig Veda, III, 8, 4. See Kane’s History of Dharamsastras Vol. II, Chapter VII, 268 est.
3 Apastamba: I, i, 15; Gautama, I, 8; Vishnu, XXXVIII, 37-40; ‘the first born, and the second time from the binding of the
Maunji girdle, the Brahmanas, Kshatryas, and the Vaisyas, these are called dwija, twice-born’. (Vashishtha II, 39).
4 Maha, Shanti. 108-18, 21.24. See also Yajnavalkya, II, 35.
5 Yajnavalkya, II, 36; For each of Vedas the Brahamcharya should be twelve or five; or until the completion of study. In
next verse he specifies the maximum limits before which studies must commence: “Up to sixteen, twenty-second, and
twenty-four year, is the maximum period of upanayana for the Brahmin, Kshatryas, and the Vaisyas respectively.” Manu
lays down the minimum age as 5th, 6th, and 8th respectively (II, 34). Vyasa also put it as the farthest limit. See for
detailed discussion Kane’s History of Dharamsatras, Vol. II, Chapter VII, p. 274 est.
6 Manu lays down that studentship may continue for thirty-six years, or for half of the time or for one-fourth of the time, or
till the student has perfectly learned Vedas; Manu, III, I, Yaj. 1, 36; Apa. 1,2, 12-16.
7 AP Gr. Sutra, V 12, 13; San Gr Su III 1; Gobh Gr Su 4 7.
8 Arthashastra, I, iii, 8; Manu VI, 91.
1 Man Mohani v. Hari Prasad, 1924 Pat 755.
2 AIR 1944 Cal 433 .
3 AIR 1914 PC 41 .
4 Manu, IX, 93, 90; Yajnavalkaya I 64; Vishnu XXIV 41; Vashishtha XVII 67; Baudhayana IV, I, II 14; Narada, 25-26;
Gautama XVIII 23. Brihaspati provides for punishment also and says that a father violating the rule is guilty of abortion
(XXIV, 3). Narada and Yajnavalkaya consider him to be guilty of murder (Colebrooks Digest, Book IV Ch 1, 14-17).
5 Manu, III 4.
1 Manu, III, 1; IX, 94.
2 Manu, V 51.
3 Vishnu, XXXIV, 38-39.
4 Yajnavalkaya, I, 63-64.
5 Narada, XII, 20-22.
6 See also Raghunandana’s Udhyahataya, II, 70; he bases this interpretation on the texts of Narada and Vishnu.
1 This interpretation directly flows from texts of Yajnavalkaya and Vishnu.
2 See, Goorudas Bannerji, Hindu Law of Marriage and Stridhan, 47; Kamlakar in his Nirnaya Sindhu also takes this view.
See also Namaseva Yam v. Annamai, 4 Mad 339; Ranganaiki v. Ramanunja, (1912) 35 Mad 728; Rai Ramkore v.
Jamnadas, (1913) 37 Bom 18; Mst. Jivani v. Mularam, (1922) 3 Lah 29.
3 Ranganaiki v. Ramanunja, (1912) 35 Mad 728. This follows from the texts of Narada and Yajnavalkya which hold not
giving the girl in marriage at a proper time is a grave sin.
Page 34 of 43
4 Yajnavalkya, I, 65.
5 Venkatacharyulu v. Rangacharyulu, ILR (1891) 14 Mad 316 ; Ranganaiki v. Ramanjuja, ILR (1912) 35 Mad 728 .
6 Tulsa v. Gopal Rai, ILR (1884) 6 All 632 ; Kaulesra v. Jorai, ILR (1906) 28 All 233 ; Kristo Kissor Neoghy v. Kader Moye
Dossee, (1878) 2 CLR 583; Shridhar v. Hira, (1888) 12 Bom 480. Namasevayam v. Annammai, (1869) 4 MHCR 329;
Rai Ramkore v. Jamna Das, ILR (1913) 37 Bom 18 . Reliance was placed on the text of Yajnavalkya. Sulabai v.
Keshavrao, AIR 1932 Bom 156 ; Ram Harakh v. Jagannath, AIR 1932 All 5 ; Ranganaiki v. Ramanuja, ILR 35 Mad 728;
Mst. Indu v. Ghama, ILR (1920) 1 Lah 146 ; Mst. Jivani v. Mularam, ILR (1922) 3 Lah 29 ; Ghazi v. Sukru, ILR (1897)
19 All 515 ; Venkatacharyula v. Rangacharyulu, ILR (1891) 14 Mad 316 .
7 In re Kashi Chander Sen, ILR (1881) 8 Cal 266 ; Ranga v. Ramanujuo, ILR 35 Mad 728; Rai Ram Kishore v.
Jamnadas, ILR 37 Bom 18; Sharda v. Hiralal, ILR 12 Bom 480; Harendra v. Brindra, 2 CWN 521.
8 Sulabai v. Keshorai, ILR (1931) 56 Bom 71 ; Kasturi v. Pannalal, ILR (1916) 38 All 520 .
1 See Steele: Law and Custom of Hindu Caste, 30; See also Nirnaya Sindhu, (above quoted): Strange, Hindu Law, 28;
Colebrook’s Digest, Book V Ch 2 s 135, where all the texts have been quoted.
2 Brindabun Chandra v. Chundra Kurmokar, ILR 12 Cal 140; Inderum v. Ramasamy, 13 MIA 141; Khusalchandra v. Bai
Mani, ILR 11 Bom 247; Namasevyam v. Annammai Ummal, 4, MHCR 339; Madhusoodan v. Jadab, 3 Cal WR 194.
3 Bai Raliyat v. Jey Chandra Kewal, 1 Morley’s Digest 181; Madhusoodan v. Jadab, 3 Cal WR 194; Brindabun Chandra
v. Chundra Kurmokar, ILR 12 Cal 140; Khusal Chandra v. Bao Mani, ILR 11 Bom 247; Venkata v. Raja, 14 Mad 316;
Kasturi v. Chiranji Lal, ILR (1913) 35 Mad 265 ; Gajanand v. E, AIR 1922 Lah 139 ; Shivanadhya v. Bhagvathyamma,
AIR 1962 Mad 400 [LNIND 1961 MAD 54].
4 Dayabhaga, II 30; Balusu v. Ramlakshammo, (1899) 26 IA 113; Basant Sing v. Brijraj, (1935) 62 IA 180; Wooma v.
Gokul, (1878) 5 IA 40.
1 Muntstuart v. Mountstaurt, (1801) 6 Ves 362; De Mannerville v. De Mannerville, (1804) 10 Ves 52; Creuze v. Hunter,
(1790) 2 Cox 242.
2 Law of Domestic Relations, 6th Edn., 460.
3 (1916) 86 LJP 90.
4 (1955) Times, May 23.
5 (1956) 3 CL 408-B.
6 The Registrar’s Direction No. 20.
7 Matrimonial Causes Rules 54(3).
8 Crossley v. Crossley, (1953) P 97.
9 In Mountstuart v. Mountstuart, (1801) 6 Ves 362 Lord Eldon regarded the rule as absolute though in Jacson v. Hankey
Jack, 265 he has prepared to admit certain exceptions.
1 Wyndham v. Lord Ennismore, (1937) 1 Ke 467; Campbell v. Mackay, (1937) 2 My&Cr 31.
2 Hart v. Tribe, (1854) 19 Beav 149.
3 Spencer v. Chesterfiled, (1752) Amb 146; Talbot v. Shrewsbuy, (1840) 4 My&Cr 672.
4 Letham v. Hall, (1934) 7 Sim 141; Jacson v. Hankey, Jac, 265-n.
5 Campbell v. Campbell, (1837) 2 My&Cr 31.
6 Jeffrys v. Venteswarstwarth, (1740) Barn C 141; Dawson v. Jay, (1854) 3 De GM&G 764.
7 Direction No. 17, January 5, 1959.
8 Handkinson v. Handkinson, (1952) 2 All ER 567; O’Donovan v. O’Donovan, (1955) 3 All ER 278; Kempt v. Kempt,
(1957) CL 329 c.
9 AIR 1928 Cal 600 .
1 Sub-section (2) of sec. 26, the Guardians and Wards Act, 1890.
2 Marggarate v. Dr. Chacks, AIR 1970 Ker 1 [LNIND 1969 KER 13]; Pamela v. Patrick, AIR 1970 Mad 427 [LNIND 1969
MAD 192].
3 Bundoo v. Ramdeen, 1899 AWN 204.
Page 35 of 43
4 Section 39(h) of the Guardians and Wards Act, 1890.

5 (1856) 6 MIA 393.
6 Nrishingha Charan Nandi Choudhry v. Thakar Ashuthosy Doe Ghatwal, AIR 1938 Pat 487 ; Rajballabha v. Bishun, AIR
1935 Pat 74 ; Ramnath v. Deoraj, AIR 1957 Pat 495 ; Trilok v. Dwarka, AIR 1958 Pat 263 ; Parasiva v. Rachiah, AIR
1958 Mys 125 ; Manohar v. Braja Mohan, AIR 1952 Ori 239 ; Ananato Mohini v. Khalli Sadhu, AIR 1954 Ori 107 ; Budhi
v. Dhobai, AIR 1958 Ori 7 ; W.S. Nene v. Mahodeo, 1952 VP 201; Bhagwan Rao v. Rajaram, AIR 1956 Nag 285 ;
Mahaluxmi v. Kamakhya Lal, AIR 1958 Assam 56 ; Nagalinga v. Madathi, 1958 TC 30 (FB); PLA Palaniappa v. Harvey
Ltd., 1953 TC 418.
7 ILR (1897) All 135.
1 Raghubans Upadhaya v. Inderjeet Singh, ILR (1922) 45 All 77 ; Jagdeo Singh v. Sitla Parasad, AIR 1954 All 71
[LNIND 1953 ALL 171].
In Govind Singh v. Baldeo Singh, ILR (1903) All 330 and Ram Devi v. Abdul Jafar, ILR (1904) 20 All 494, the court
expressed the view that if bulk of the proceeds have been satisfactorily accounted for, the fact that a small part has not
been accounted for will not invalidate the sale. (Though on facts alienation was held void.) This principle was further
developed in Dwarka Ram v. Julai Pandey, ILR (1923) 46 All 429 ; “if any part of the consideration was invalid and not
binding on the plaintiff he is entitled to have the sale set aside.” This principle was followed in Daulat v. Sankatha
Prasad, ILR (1924) 47 All 355 . This case went to Privy Council in Appeal. (1926) 49 All 149, where the judgment of the
High Court was reversed; the Privy Council observed, “Where the sale has been held to be justified but there is no
evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for
proper purpose and for the benefit of the family.”
2 Jagat Narayan v. Mathuradas, ILR (1928) 50 All 969 (FB).
3 Ram Raj v. Nathu, ILR (1935) 59 Bom 525 .
4 ILR (1928) 43 Bom 419 .
5 ILR (1928) 43 Bom 419 (424).
6 In V. Dalai Himat v. Dhirajram Sadaram, (1887) 12 Bom 18 alienation for a debt binding on the family was held valid
and the court said that the minor could not impeach it. Murari v. Tayana, (1895) 20 Bom 286; mother can alienate the
property as guardian of the minor son to pay off the debt of her husband. Pandha Parsad Singh v. Mst. Tarlok Raj,
(1873) 20 WR 38; alienation for slight increase in income was held invalid. Ganpat v. Subbi, 32 Bom 577; case of
widow’s power of alienation, the same principle applied. Dalibai v. Gopibai, (1920) 26 Bom 433; the lender is bound to
ascertain whether the guardian is acting for the benefit of the minor. Nathu Pirji v. Balwant Rao, ILR (1903) 27 Bom
390, the natural guardian can alienate only in case of need or benefit. Vishnu v. Ram Chandra, (1923) 25 Bom LR 508
[LNIND 1923 BOM 104] case of manager’s power (the same principle applied). Nagindas v. Md. Yusuf, ILR (1921) 46
Bom 312 ; the term ‘necessity’ must be strictly construed and the benefit of the family may under certain circumstances
mean a necessity for the transaction and the regard must be had to the word, ‘Kutumbarthe, used in the Mitakshara.
Venkatraraman v. Janaradhan, (1927) Bom LR 508; the father cannot alienate the property for general benefit.
7 In Hemraj v. Nathu, ILR (1935) 59 Bom 525 (FB) Beaumont, C.J. reviewed almost all those old authorities of the
Bombay High Court and also of the Allahabad High Court which gave wide interpretation to the term ‘benefit’ of estate’.
The learned Chief Justice was of the view that the manager of minor’s property cannot alienate the properties merely
for enhancing the value of property or for increasing the income of the minor. In Tulsidar v. Ram Singhji, ILR 57 Bom
40; a Full Bench said that even a de facto guardian has power to alienate minor’s property provided it was for the
benefit of the minor. In Mallappa v. Anand, AIR 1936 Bom 387, the court reiterated the principle that a guardian can
alienate in case of need or benefit. See also, Sakar Chand v. Naryan Vani, ILR (1954) Bom 217; Shivajii v. Murlidhar,
ILR (1954) Bom 794 (FB); Tataya v. Radha, AIR 1953 Bom 273 [LNIND 1952 BOM 48]: ILR (1953) Bom 570 [LNIND
1952 BOM 48].
1 (1856) SDA (Ben) 980. The Privy Council has already rendered the judgment but that judgment had not reached India
and the case was decided independently of Hanuman Pd.
2 (1878) 4 Cal 76 the judgment was given by Jacson J.
3 See also Md. Mondul v. Nafur, ILR (1889) 26 Cal 820, Maclean, C.J., said de facto guardian also has similar power, the
reliance was placed on (1856) 6 MIA 393 and Dorab Md. v. Nafur, ILR (1874) 4 Cal 820 . In Rajesh Agrawal v. Chand
Mandal, ILR (1937) 2 Cal 764, it is not legal necessity to alienate minor’s property for his marriage. A contrary view was
taken by the Bombay High Court in Sundarbai v. Sivanarayan, ILR (1907) 32 Bom 81 . See also Hansraj v. Ashkar, AIR
1941 Cal 244 ; Tikki Lal v. Kamal Chandra, AIR 1940 Nag 327 .
4 Krishaha Chandra Choudhury v. Rattan Ram Pal, (1917) 20 CWN 645.
5 Greason v. Udoy, ILR (1889) 16 Cal 223 ; Kamalini Chaudhurani v. Himangshu Bhushan Ghose, AIR 1956 Cal 211
[LNIND 1955 CAL 160].
Page 36 of 43
6 Babu Luchmeerdhur Singh v. Ekbal Ali, (1967) WR 75 and Lala Chatra Naryan v. Uba Kunwari, (1868) 1 Beng LR 201.
See also Kammikha Pd. v. Jagdamba, (1870) 5 Beng LR 508 and Felaram Roy v. Benlanond, (1910) 14 CWN 895.
7 Temmakal v. Subbomal, (1864) 2 MHC 47.
8 Kolhandaramaswami v. V. Pappammal, AIR 1925 Mad 215 .
9 Govinda Reddy v. Pathimunnissa, AIR 1958 Mad 510 .
10 Dharmaji v. Shri Niwas, (1870) 10 Bom HC 311 per West, J.
11 Pallani Pallai v. Sengamalathachi, AIR 1962 Mad 160 [LNIND 1961 MAD 74].
12 Gopal Krishanah v. Krishman, AIR 1961 Mad 448 ; Subakkal v. Subba Goundar, AIR 1965 Mad 371 [LNIND 1964
MAD 111].
1 Rangaswami v. Marappa Gounder, AIR 1953 230. Similarly in Palani Ammal v. Kothandarma, ILR (1943) Mad 418 a
mother as guardian cannot make as gift of a small portion of minor’s property to the daughter on the occasion of her
marriage. Annamalai v. Sunderthammal, AIR 1953 Mad 404 [LNIND 1951 MAD 285](Father-karta has such power).
Peeramanyakam v. Shivaraman, AIR 1952 Mad 419 [LNIND 1951 MAD 94](FB) deals with the question of settling
equities when the necessity is much less than the consideration received.
2 Adimoola v. Pavadai Padayachi, (1958) 2 MLJ 57.
3 Imperial Bank of India v. Veerappham, AIR 1934 Mad 595 [LNIND 1934 MAD 22]; Annamalai v. Muthuswami, AIR
1939 Mad 538 [LNIND 1939 MAD 87]; see also Ramyalinga v. Narayana, ILR (1922) 35 Mad 489 (PC); Alienation after
a suit for partition is filed.
4 Kanhaya Lal v. Deep Chand, AIR 1947 Lah 199 ; Kausia v. Faoz, AIR 1928 Lah 115 ; Palmukund v. Pindi Das, AIR
1958 Punj 267 ; Lamaya v. Rachappa, ILR 42 Bom 626; Fakirappa v. Lummana, ILR 44 Bom 742; Brinjendra Chandra
v. Prosumma Kumar, 24 CWN 1016; Indranath Modi v. Nandram, AIR 1957 Raj 23 .
5 Lalitha Bai v. Sampath, AIR 1962 Mad 163 [LNIND 1961 MAD 85]; see also Palani Ammal v. Kothandrama, AIR 1944
Mad 91 [LNIND 1943 MAD 172]: ILR (1944) Mad 418; Bangaswami v. Marappa, AIR 1952 Mad 230 ; Rama Sethi v.
Ibbaba Sethi, AIR 1954 Mys 56 .
6 Narsimhan v. S. Ayilu Naidu, (1971) 1 MLJ 228 [LNIND 1970 MAD 171].
7 Lalitha Bai v. Sompath, AIR 1962 Mad 163 [LNIND 1961 MAD 85].
1 Paracappa Nagappa Walikar v. Chandra, AIR 1975 Kant 81 . Also see G. Annamalai v. District Revenue Officer, JT
1993 (4) SC 113 [LNIND 1993 SC 217].
2 G.P. Vijayakumar v. Punjab and Sind Bank, AIR 1999 Ker 367 .
3 Vishram Singh v. Dist. Judge, Etawah, AIR 1996 All 90 [LNIND 1995 ALL 584].
4 Kamla Kumari Bohara v. Harekrishna Ghadei, AIR 1998 Ori 196 [LNIND 1998 ORI 272].
5 Panni Lal v. Rajinder Singh, JT 1993 (3) SC 340 [LNIND 1993 SC 433].
6 Murlidhar Bahuji Valve v. Yallappa Lalu, AIR 1994 Bom 358 [LNIND 1994 BOM 103].
7 V. Lakshmanan v. B.R. Mangalagiri, JT 1995(2) SC 105 .
8 Narayan Bal v. Sridhar Sutar, AIR 1996 SC 2371 [LNIND 1996 SC 211].
9 Narayan Lakshman Gilankar v. Udaykumar Kaushik, AIR 1994 Bom 152 [LNIND 1993 BOM 678].
1 AIR 1972 Bom 152 [LNIND 1971 BOM 5].
1 Kamala Devi v. Balhu Lal Gupta, AIR 1957 SC 434 [LNIND 1957 SC 5], where the Supreme Court has reviewed all the
important cases and has given an excellent summary of law.
2 AIR 1944 Mad 91 [LNIND 1943 MAD 172]: ILR (1944) Mad 418.
3 AIR 1952 Nag 317 .
4 See also Rangaswami Iyer v. Marappa, AIR 1952 Mad 30 ; Rama Sethi v. Ibbaba Sethi, AIR 1954 Mys 56 ; Binda Kuer
v. Lalita Pd., AIR 1936 PC 304 .
5 AIR 1961 Mad 153 [LNIND 1960 MAD 255].
6 Rangaswami v. Marappa Gounder, AIR 1953 Mad 230 [LNIND 1952 MAD 203].
1 AIR 1968 All 347 [LNIND 1967 ALL 45].
Page 37 of 43
2 Gurusaranlal v. S. Kumar, AIR 1956 All 136 [LNIND 1955 ALL 152].
3 (1887) ILR 11 Bom 554.
4 (1892) ILR 19 Cal 507.
5 AIR 1936 PC 204 .
6 AIR 1948 PC 95 .
7 (1912) 39 IA 1.
8 ILR (1887) 11 Bom 551 .
1 AIR 1956 AP 33 .
2 ILR (1892) 19 Cal 507 .
3 Rajah Kocherlokota Venkata Jagunatha Rao Guru v. Maharaja Ravi Venkata Kumara Mahipati Surya Bahadur, AIR
1956 PC 204 : ILR 59 Mad 910.
4 AIR 1948 PC 95 .
1 (1912) 39 IA 1.
1 Mayne, Hindu law and Usage, 11th Edn., 292-93 para 236.
2 ILR (1912) 39 Cal 232 .
3 12 LJ Ch 68.
4 James Jones v. Earle of Takerville, (1902) 2 Ch 44 . See also Leake on Contracts, 410-11, 8th Edn.; Pollock on
Contracts 46-47, 12th Edn.; Subba Rao, Law of Equity, 512-14.
5 See Whitley Stokes, Anglo-Indian Code, Vol. I, 931; Pollock and Mulla, India Contract Act 70-71. See the following
cases also; Kewal Ram v. Donald, (1911) 5 SLR 61 : 10 IC 211; Chetoomal v. Shankardas, AIR 1929 Sind 83 (where
reliance was placed on Kewal Ram’s case).
6 ILR (1887) 15 Cal 8 .
7 ILR (1887) 11 Bom 551 .
1 ILR (1912) 39 Cal 232 .
2 (1903) 30 IA 114.
3 In 18 Mad 415, the court observed that this case was decided on the basis of English law and provisions of Hindu law
were not noticed.
4 ILR 27 Cal 276.
5 ILR (1906) 34 Cal 163 .
6 AIR 1926 Cal 445 .
7 AIR 1930 Cal 457 .
8 AIR 1918 Cal 826 .
9 ILR (1913) 35 All 499 .
10 AIR 1915 All 478
11 AIR 1916 All 366 .
12 AIR 1929 All 102 ; see also Ulfat v. Gori, ILR (1911) 33 All 657 ; Raghunath v. Sheikh, 30 IC 200.
13 AIR 1929 All 604 .
1 AIR 1925 All 595 .
2 AIR 1918 Pat 626 .
3 ILR (1916) 40 Mad 308 .
4 AIR 1919 Pat 561 .
5 AIR 1924 Pat 81 .
Page 38 of 43
6 AIR 1935 Pat 237 .

7 (1856) 6 MIA 393.
8 AIR 1936 Pat 153 .
9 AIR 1919 Pat 561 .
10 AIR 1939 Pat 237 .
11 AIR 1949 Pat 405 .
1 The latter observation was contrary to the Full Bench decision in Hari Charan v. Kaularai, AIR 1917 Pat 478 .
2 AIR 1917 Lah 109 .
3 AIR 1927 Lah 355 .
4 AIR 1915 Oudh 115 .
5 AIR 1925 Oudh 37 .
6 AIR 1922 Oudh 239 .
7 AIR 1939 Nag 265 .
8 AIR 1946 Nag 139 ; see also Ram v. Prayag, AIR 1954 Nag 122 .
1 ILR 20 Bom 61.
2 ILR 11 Bom 551.
3 AIR 1956 Bom 566 [LNIND 1955 BOM 193].
4 AIR 1958 Bom 202 [LNIND 1957 BOM 76].
5 AIR 1948 PC 95 .
6 AIR 1969 Bom 140 [LNIND 1968 BOM 26].
7 AIR 1969 Bom 140 [LNIND 1968 BOM 26](149).
8 ILR (1910) 33 Mad 312 .
9 (1913) 24 MLJ 363 [LNIND 1913 MAD 62].
10 ILR 33 Mad 312.
11 AIR 1920 Mad 423 .
1 AIR 1924 Mad 544 [LNIND 1924 MAD 21].
2 AIR 1924 Mad 185 [LNIND 1923 MAD 167].
3 ILR (1918) 42 Mad 185 .
4 Ram Krishna v. Kasivasi, AIR 1928 Mad 407 [LNIND 1927 MAD 302].
5 AIR 1930 Mad 425 [LNIND 1929 MAD 182].
6 AIR 1933 Mad 322 [LNIND 1932 MAD 172].
7 Contrast this case with Radhashyam Kamila v. Kiram Bala, AIR 1971 Cal 341 [LNIND 1971 CAL 24].
8 AIR 1936 Mad 564 .
1 AIR 1938 Mad 765 [LNIND 1938 MAD 45].
2 AIR 1940 Mad 106 [LNIND 1939 MAD 394].
3 AIR 1944 Mad 337 [LNIND 1943 MAD 242].
4 AIR 1947 Mad 67 [LNIND 1946 MAD 157].
5 AIR 1947 Mad 94 [LNIND 1946 MAD 66].
6 AIR 1951 Mad 431 .
7 AIR 1956 Mad 261 [LNIND 1955 MAD 260].
Page 39 of 43
8 AIR 1969 Mad 470 [LNIND 1968 MAD 51].

9 AIR 1933 Mad 322 [LNIND 1932 MAD 172].
10 AIR 1948 PC 95 .
2 AIR 1949 Assam 57 .
3 Abdul Sattar v. Ismail, AIR 1958 MP 373 ; Ram Chandra v. Manik Chand, AIR 1968 MP 150 [LNIND 1968 MP 30].
4 1952 Hyd 120 (FB).
1 The Law Commission in recommending insertion of a clause in the codified law of specific performance observed as
follows:
“There is still however scope for application of rule in Sarvarjan, (1911-12) 16 Cal WN 74 (PC) (Supra) in the case
of contracts for purchase of property on behalf of the minor which cannot be said to be for the benefit of the minor.
We do not consider it necessary to import the doctrine of mutuality into our codified law of specific performance to
cover such cases. On the contrary we could do away with the doctrine in Sarvarjan by inserting in section 22 (of
the old Act) a provision embodying the law stated in the American Restatement as follows:
The fact the remedy of specific enforcement is not available to one party is not sufficient reason for refusing it to the
other party.
2 AIR 1971 Cal 341 [LNIND 1971 CAL 24].
3 AIR 1971 Mys 194 .
1 AIR 1974 MP 24 [LNIND 1973 MP 56].
2 See also Surta Singh v. Pritam Singh, AIR 1983 P&H (FB). This is a case of sale of minor’s property. The Full Bench
after a review of practically all the authorities said that a guardian’s alienation in violation of section 8(2) being merely
voidable stands valid till avoided.
3 Surta Singh v. Pritam Singh, AIR 1983 P&H (FB); See also Chatar Bhuj v. Gurpreet Singh, AIR 1982 P&H 406 .
4 Gurpreet Singh v. Chattar Bhuj, AIR 1992 P&H 96 .
5 AIR 1949 FC 218 .
6 ILR 3 Mad 145.
7 ILR 31 Mad 458.
1 (1918) 45 IC 949.
2 Subramania v. Arumuga, ILR (1903) 26 Mad 330 ; Duraiswami v. Muttial, ILR (1908) 31 Mad 458 ; Sanka v. Bank of
Burma, ILR (1911) 35 Mad 692 ; Padma Krishna v. Nagamani Ammal, ILR (1915) 39 Mad 915 .
3 AIR 1919 Mad 641 .
4 ILR (1887) 11 Bom 551 .
5 ILR (1892) 19 Cal 507 .
6 45 IA 949.
7 ILR (1912) 39 Cal 232 .
8 ILR (1919) Mad 645.
9 ILR (1919) Mad 644.
1 Venkata v. Venkata, AIR 1931 Mad 140 [LNIND 1930 MAD 103]; Meenakshi v. Ranga, AIR 1932 Mad 686 ;
Sundasana v. Dallayya, AIR (1944) Mad 218 [LNIND 1943 MAD 260]; Natesh v. Maincha, AIR 1938 Mad 398 ;
Satyanarayanamurthi v. Gopalan, AIR 1939 Mad 891 [LNIND 1939 MAD 93]; Annamalli Chetty v. Muthoswami, AIR
1939 Mad 538 [LNIND 1939 MAD 87].
2 AIR 1936 Mad 564 .
3 AIR 1938 Mad 849 [LNIND 1938 MAD 310].
4 AIR 1939 Mad 338 .
Page 40 of 43
5 AIR 1919 Mad 641 .

6 AIR 1943 Mad 487 [LNIND 1943 MAD 36].
7 AIR 1962 Mad 371 .
8 AIR 1956 AP 33 .
9 AIR 1921 Pat 399 .
10 AIR 1933 Pat 29 .
1 Tribeni v. Jainarayan, AIR 1937 Pat 425 (case of karta) AIR 1917 Pat 478 (FB) followed.
2 ILR (1900) 27 Cal 276 .
3 ILR (1907) 35 Cal 320 .
4 AIR 1926 Cal 445 .
5 14 IA 89.
6 AIR 1952 Cal 508 [LNIND 1952 CAL 9].
7 That is what appears from the report.
8 ILR 14 Bom 562.
9 ILR (1894) 20 Bom 61 .
1 AIR 1949 Assam 57 .
2 (1917) 13 NLR 109.
3 (1906) 2 NLR 25.
4 AIR 1926 Nag 31 .
5 AIR 1933 Nag 285 .
6 AIR 1930 Nag 68 .
7 AIR 1947 Nag 178 . See also Garam Lal v. Tularam, AIR 1939 Nag 33 .
8 ILR 11 Bom 218.
9 39 IA 1.
10 (1856) 6 MIA 393.
11 For instance in Ramajoggya, the Chief Justice was in the favour of giving extended meaning to ‘necessaries’.
1 AIR 1949 FC 218 .
2 The following two observations of two judges go to show the difference in judicial thinking. Fazal Ali, J., said: “It seems
to me that the interest of the minor would be on the whole better served by restricting the power of the guardian than by
unduly widening them.”
On the other hand, Mr. Justice Mahajan said: “I venture to say that both on principle of Hindu law and decision, it is rather
too late in the day to uphold the view that a natural guardian has no power to incur such liability as per force in every
case he must charge the estate.”
1 AIR 1919 Mad 641 .
1 Bhal Ram v. Ayub Khan, AIR 1927 All 55 .
2 11 Bom 551.
3 AIR 1932 All 460 .
4 AIR 1932 Bom 44 .
5 ILR 11 Bom 551.
6 ILR (1907) 35 Cal 320 .
7 ILR 4 Mad 375.
Page 41 of 43
8 ILR 26 Mad 330.

9 ILR 11 Bom 551.
10 ILR (1892) 19 Cal 507 .
11 ILR 39 Mad 915.
12 6 MIA 393.
1 ILR 56 Mad 879.
2 AIR 1935 Mad 447 [LNIND 1934 MAD 397].
3 AIR 1939 Mad 538 [LNIND 1939 MAD 87].
4 AIR 1941 Mad 417 [LNIND 1940 MAD 445].
1 AIR 1943 Mad 273 [LNIND 1942 MAD 373].
2 AIR 1946 Mad 1 [LNIND 1945 MAD 205].
3 AIR 1949 FC 218 .
4 Kania, C.J., said that much confusion could be avoided if the words, ‘de facto manager’ are used in place of de facto
guardian.
5 ILR 58 Mad 870.
1 AIR 1956 AP 83 ; see also Palakuthi v. Tyla, AIR 1958 AP 713 .
2 Section 11, the Contract Act; Mohari Bibi v. Dharamodas Ghose, ILR (1903) 30 Cal 539 .
3 Rajrani v. Prem Adio, AIR 1949 Bom 215 .
1 Brahaspati.
2 These words are used by Manu.
3 These words are used by Narada.
4 These words are used by Katyayana.
5 The modern tendency is to allow interest also: Rajnathan v. Shaick, AIR 1940 Mad 106 [LNIND 1939 MAD 394]; AIR
1927 All 55 ; Shrinath v. Jagannath, AIR 1930 All 292 ; Watkins v. Dhunoo, ILR (1881) 7 Cal 140 ; Ram Chandra v.
Hari, AIR 1936 Nag 12 (In the last case the court refused to allow interest).
6 Already a wide meaning has been given to the term ‘necessaries’ both in the Indian and English law; Walter v. Everard,
(1891) 2 QB 369; Chapple v. Cooper, (1944) 13 M&W 252; 67 RR 586. The leading Indian judgments are: Sadasheo
Balaji v. Firm Hiralal Ramgopal, AIR 1939 Nag 65 ; Shyam Charan v. Chaudhary, ILR (1894) 21 Cal 872 ; Watkins v.
Dhunoo, ILR (1881) 7 Cal 740 ; Venkatta v. Timmayya, ILR (1898) 22 Mad 314 ; Nandan Prasad v. Ajudhiya Prasad,
ILR (1910) 32 All 325 . However, courts have refused to extend the meaning of the term, necessaries so as to include
all cases of legal necessity or benefit of estate under Hindu law; Nilkanth v. Chandrabhan, AIR 1922 Nag 247 ; Tikki Lal
v. Komal Chandra, AIR 1940 Nag 327 ; Ramjas v. Chandra Mandal, ILR 2 Cal 764; Ramalinga v. Shrinivas, AIR 1955
Mad 657 [LNIND 1955 MAD 28].
7 Section 68, Indian Contract Act runs: “If a person incapable of entering into contract, or any one whom he is legally
bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has
furnished such supplies is entitled to be reimbursed from the property of such incapable person.”
8 Innatunnissa v. Jankinath, AIR 1918 Cal 877 ; Baburam v. Saidunnissa, ILR 35 All 499.
1 Annapagauda v. Sangadigyapa, ILR (1902) 25 Bom 221 (FB).
2 The Madras High Court initially took the view that even de facto guardian could acknowledge the debt - Tirroyya v.
Mallidi, 19 IC 362. In Kashinath v. Onkarappa, AIR 1928 Mad 226, this was doubted and in Chennappa v. Onkarappa,
AIR 1940 Mad 33 [LNIND 1939 MAD 270](FB) was overruled. The court held that only the de jure guardian could
acknowledge. See the earlier cases; Sobbanamadi v. Briramulu, ILR 17 Mad 221; Subramania v. Arumunga, ILR
(1903) 26 Mad 330 . Lahore High Court in Piare Lal v. Lajja Ram, ILR 17 Lah 78, took the same view. See also, Beti v.
Collector, ILR (1894) 17 All 198 (PC).
3 Wajibun v. Kadir, ILR (1886) 13 Cal 292 ; Chhotto v. Bitto, ILR (1889) 26 Cal 51 ; Narendra Nath v. Bhupendra, ILR
(1895) 23 Cal 375 ; Sarda Chandra v. Durgaram, ILR (1910) 37 Cal 461 ; cases of power of the Karta.
Page 42 of 43
In Ranmal Singh v. Vadial, ILR (1894) 20 Bom 61, the Court said that the guardian has no such power. Tilak v. Chhutta, AIR
(1904) 26 All 598 .
4 Bageshwari v. Bindeswari, AIR 1932 Pat 337 ; Bechu v. Baldeo, AIR 1933 Oudh 132 ; Bageshwar v. Jagannath, ILR
(1931) 11 Pat 272 (PC); Tadearti v. Myneni, AIR 1949 FC 218 (263-64) per Mahajan, J. (as he then was). Bireshwar v.
Ambika, ILR 45 Cal 630; Ramaswami v. Kashinath, AIR 1928 Mad 226 ; Chennappa v. Onkarappa, 1940 Mad 358;
Nama Nagayya v. Kalia, 1938 Mad 853; Ahammu v. Kunha, AIR 1938 Mad 835 [LNIND 1938 MAD 76].
5 Sohbnadari v. Shriamula, 17 Mad 221; Lornie v. Abu Backer, AIR 1939 Mad 414 [LNIND 1938 MAD 430]; Banke v.
Swami, 56 IC 328; Brahamain v. Ramlakhan, AIR 1927 Oudh 52 .
1 Ramawatar Singh v. Langat Singh, AIR 1931 Pat 92 ; Shantilal v. Munshilal, ILR (1932) 56 Bom 595 ; Punnuswami v.
Verramuthu, ILR 3 Rang 452: AIR 1925 Rang 452 ; Romokishan v. Hurrolal, ILR 19 Cal 334; Sakrappa v. Shivappa,
ILR 35 Bom 153; Mohan Singh v. Gurvedi, AIR 1931 Lah 728 ; Kamal v. Shekhar, AIR 1952 Cal 447 .
2 Semmakal v. Subrammal, (1864) 2 MHCR 47; This was followed in Punuswami v. Verramuthu, ILR 3 Rang 452: AIR
1925 Rang 452 .
3 Kissen Seth v. Hurrolal Seth, ILR (1892) 19 Cal 334 .
4 AIR 1952 Cal 447 .
5 Ramrai v. Shreemutty Bossee, 1 WR 281; Ramawatar v. Langat, AIR 1931 Pat 92 ; Sanyasirao v. Venkatrai, AIR 1923
Mad 301 [LNIND 1922 MAD 145].
6 Sakrappa v. Shivappa, ILR (1910) 35 Bom 153 ; Rajander Narayan v. Bijai Govind, (1839) 2 MIA 181 (PC) relied on.
7 ILR (1919) 44 Bom 301 .
8 AIR 1935 Sind 235 .
9 See also Amrit v. Ganga, ILR (1917) 45 Cal 590 (PC).
1 14 IA 89.
2 (1882) 19 IA 90.
3 Rajah Kocherlokota Venkata Jagunatha Rao Guru v. Maharaja Ravi Venkata Kumara Mahipati Surya Bahadur, AIR
1956 PC 204 : ILR 59 Mad 910; Nagindas v. Bhimrao, ILR (1942) Bom 117.
4 Ramajogyya v. Jaganadhan, ILR 42 Mad 185; Pudarikakashayya v. Sreemaler, ILR 242 (1944); Mad Sundra Sava Rao
v. Dalayaya, ILR (1944) Mad 224; Suchit v. Harnomand, ILR 12 Pat 112; Nathuram v. Soma, ILR 14 Bom 562.
1 Vishambhar v. Laxminarayane, AIR 2001 SC 2607 [LNIND 2001 SC 1398]; Padinhare Veetil Madhavi v. Pachikaran
Veetil, AIR 2010 Ker 111 [LNIND 2009 KER 6404].
2 Chuni Ram v. Sawaru Nag, AIR 1988 Ori 136 [LNIND 1987 ORI 37].
3 AIR 1940 Mad 113 ; The same was held in AIR 1915 Mad 296 [LNIND 1914 MAD 30].
4 ILR (1890) 14 Mad 26 . See also Privy Council decision in Bijoy Gopal v. Krishna, (1907) 17 MLJ 154, where the same
view was expressed in the case of an improper alienation made by a widow; see also Gounden v. Gounden, AIR 1938
Mad 822 [LNIND 1938 MAD 66].
1 AIR 1956 Mad 670 [LNIND 1956 MAD 299].
2 See also Eachan Neelakantan v. Kumarasani, AIR 1964 Mad 362 [LNIND 1963 MAD 279].
3 AIR 1962 Ker 164 [LNIND 1961 KER 378].
4 ILR (1905) 28 All 30 .
5 AIR 1938 Pat 337 .
6 AIR 1972 Ker 71 [LNIND 1971 KER 170].
1 AIR 1988 Ori 136 [LNIND 1987 ORI 37].
1 Annual Survey of Indian Law: A Publication of Indian Law Institute.
2 AIR 1985 Mad 357 [LNIND 1984 MAD 318].
3 Sinaya Pillai v. Munsiram Ayyar, ILR (1899) 22 Mad 289 .
4 These cases have been reviewed by the Full Bench.
Page 43 of 43
5 AIR 1941 Mad 481 (FB).

1 Kanok Dasi v. Srihari Goswami, AIR 1919 Cal 407 .
2 Palirappa v. Lumanna, AIR 1920 Bom 1 (FB) and Gungadhar v. Dattatraya, AIR 1953 Bom 424 [LNIND 1952 BOM
101].
3 Ram Chari Her Misir v. Suraj Teli, AIR 1932 All 108 .
4 Jagadamba Prasad v. Anandi Nath Roy, AIR 1938 Pat 337 .
5 Labha Mal v. Malak Ram, AIR 1925 Lah 619 .
6 Chariram Sahu v. Samaru Nag, AIR 1988 Ori 136 [LNIND 1987 ORI 37].
7 Padinhare Veetil Madhavi v. Pachikaran Veetil, AIR 2010 Ker 111 [LNIND 2009 KER 6404].
8 AIR 1959 Punj 313 .
9 1976 Rev LR 101.
10 AIR 1983 P&H 114 .
1 See also Sankaranarayaina Pillai v. Kandosami Pillai, AIR 1956 Mad 670 [LNIND 1956 MAD 299]; Beeyyathumma v.
Moideen Haji, AIR 1959 Ker 125 [LNIND 1958 KER 59].
2 Reliance was placed on Kailash Chandra v. Rajani Kanta, AIR 1945 Pat 298 .
1 Reliance was placed on C.R. Ramaswami v. C.R. Rangachariar, AIR 1940 Mad 113 ; T.P. Petteraoemal Chetty v. R.
Muniandi Servai, (1908) 35 IA 98; Sivaanmalai v. Arunachela, AIR 1938 Mad 822 [LNIND 1938 MAD 66];
Muthukumara Chetty v. Anthery Udayan, AIR 1915 Mad 296 [LNIND 1914 MAD 30]; Jagdamba v. Anandi Nath, AIR
1938 Pat 337 ; Nagendra Nath v. Mohini Mohan, AIR 1936 Cal 131 ; Harendra Narayan Singh v. T.D. Moran, ILR
(1988) 15 Cal 40 ; Mohammed Arif v. Sarewati Deby Debya, ILR (1891) 18 Cal 259 ; Abdur Rahman v. Sukhdayal, ILR
(1956) 28 All 30 .
2 AIR 1983 P&H 130 -132.
3 The learned Judge expressed his agreement with the view expressed by Sodhi, J., in Kulbir Singh (cited earlier) and
V.R. Krishna Iyer, J., expressed in Santha v. Cheruketty, AIR 1972 Ker 71 [LNIND 1971 KER 170].
4 AIR 1973 SC 2565 [LNIND 1973 SC 243].
5 See also Parshotam Das v. Nazir Hussain, AIR 1920 Oudh 54 ; Peria Karuppan Chetty v. Kandasamy Chetty, 1933
HWN 791; Abbas Hussain v. Kiran Shastri, AIR 1942 Nag 12 .
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
9. Testamentary guardians and their powers.—
(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children, may, by will,
appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property
(other than the undivided interest referred in section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother,
but shall revive if the mother dies without appointing by will, any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu
mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that
the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in
respect of the minor’s person or in respect of the minor’s property (other than the undivided interest
referred to in section 12) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor legitimate children may, by will,
appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property
or in respect of both.
(5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the
minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under
this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
Comments
1. Scope
This section deals with the testamentary guardians. Sub-sections (1) to (4) deal with the question: who can
appoint a testamentary guardian; sub-section (5) deals with the power of the testamentary guardian, and sub-
section (6) lays down that the testamentary guardianship of a minor girl terminates on her marriage.
Page 2 of 4
Both the parents have been entrusted with the power of appointing testamentary guardians. It appears that an
appointment of testamentary guardian can be made only by a Will, since sub-sections (1), (2) and (3) use the
words “by Will”. In contrast to section 39 of the Guardians and Wards Act, which deal with court’s power of
removal of guardian, lays down that the court has power to remove a testamentary guardian “appointed by Will
or other instrument”. In view of these words, in Sarla v. Hazari,1a case under the Guardians and Wards Act, the
Calcutta High Court said that a testamentary guardian can be validly appointed by any other testamentary
document even if it is unprobated, containing no disposition of property. But, it is submitted, the same is not be
the position under the Hindu Minority and Guardianship Act.
See note 8 of our commentary on section 4.

2. Sub-section (1): Father’s Power to Appoint Testamentary Guardian
Since the father is the natural guardian of his minor children, he has the power to appoint a testamentary
guardian unless he has disentitled himself to act as natural guardian.2 Proviso to section 6 lays down that
where a natural guardian has ceased to be a Hindu or where he has completely and finally renounced the world
by becoming a hermit or ascetic he becomes disqualified from acting as a natural guardian.
The father has power to appoint a testamentary guardian of both (a) person, and (b) property of the minor
children, and after him, the mother has this power.
The father’s power to appoint testamentary guardian extends only over his legitimate children, both sons and
daughters.
He has no power to appoint testamentary guardian of his illegitimate children. It should be noticed that he
cannot appoint a testamentary guardian of his illegitimate children even when he is their natural guardian. It
may be recalled that under clause (c) of section 6, the putative father of an illegitimate child becomes his
natural guardian after the death of its mother. But section 9 is silent about the putative father’s power of
appointing a testamentary guardian. If the putative father can act as natural guardian, there is no reason why
he should have no power of appointing a testamentary guardian. In our submission this seems to be a omission
in section made inadvertently.
3. Sub-section (2): When Father and Mother both have Appointed Testamentary Guardians
Where father after appointing a testamentary guardian dies and is survived by the mother, the mother will be
the natural guardian and the father’s appointee, i.e., the testamentary guardian appointed under his Will, will not
become minor child’s guardian. His appointment will remain suspended. If mother dies without making any
testamentary appointment, the testamentary guardian appointed by the father will revive and he would become
the testamentary guardian. But in case mother has appointed a testamentary guardian, it will be the mother’s
appointee who will be the testamentary guardian, and father’s appointment will remain ineffective.
The Act is silent about the situation where mother’s appointee dies or is incapable of acting or has disqualified
himself from acting as testamentary guardian, will the father’s appointee revive and become testamentary
guardian? In our submission there is no reason why he should not.
An interesting question arose in T.V. Duraiswamy v. E. Balsubramaian,1 where mother, while bequeathing her
property to her son, also appointed a testamentary guardian in respect of that property. Both at the time when
she made the Will and at the time when she died, the father was alive, therefore, the question before the court
was whether she could appoint a testamentary guardian when father was alive and whether in the presence of
the father, the testamentary guardian appointed by the mother could take over the guardianship of the property.
It should be noticed that the short question before the court was: Whether the mother could appoint a
testamentary guardian of her separate property, in the presence of the father of the child and could this
testamentary guardian become the guardian of that property in the presence of the father? The question was
not of her general power of appointing a testamentary guardian of her minor son’s property. And, in our
submission, the court rightly observed that irrespective of the fact of existence of a natural guardian, a Hindu
mother is entitled to appoint a guardian for the minor child in respect of her separate property bequeathed by
her to her minor son. Obviously, she has no power to appoint a guardian of minor’s property in the presence of
the father as he is the natural guardian, and during his lifetime mother is not the natural guardian.
Another interesting question arose in Shoba v. Janaki,2 as to whether the father could appoint the mother as
Page 3 of 4
testamentary guardian? T.N. Singh, J., said that he could do so. His Lordship formulated the following two
propositions:
(i) A Hindu father’s right to appoint his wife, in the Will executed by him, as guardian of his child after his
death, of his person as well as property, is embedded in sections 6, 8 and 9(1), the Hindu Minority and
Guardianship Act. The Legislative intent in this respect is manifested also in the use of the words “a
Hindu widow entitled to Act” in sub-section (3) of section 9, the Hindu Minority and Guardianship Act. It
is implied that entitlement of a Hindu mother, even as a natural guardian, could be restricted in terms of
sub-section (1) of section 9. Indeed, it was its intention to give full effect and free scope to sub-section
(1) to operate uninhibitedly that made the Legislature use the words afore-extracted in sub-section (3)
to make the position clear. Accordingly, when such appointment (in Will) is made, a Hindu widow’s
right in that regard (save her right to minor children’s custody under section 25, the Guardians and
Wards Act) is pro tanto restricted
(ii) Reference to appointment by Will, made in section 7(3), the Guardians and Wards Act includes a Will
made by a Hindu father and it is not affected by the provision of section 9(2), the Hindu Minority and
Guardianship Act. When a Hindu father dies executing a Will and appointing therein his wife as
guardian of person and property of his children, the provisions of section 7(3), the Guardians and
Wards Act would be attracted without the will being declared void or action taken under section 39 of
the Act for nullifying the appointment so made or until the appointment ceases to be effective under
section 41, no rival claim made under section 7(1) of the said Act, would be competent, so as to call for
determination of the claim.
In our submission this is not a correct view. After the death of the father (and it is then only that the
testamentary guardian comes into existence), the mother is the natural guardian. How can father take away this
status and substitute it with that of the testamentary guardian. The construction placed by the learned Judge on
section 9(1) of the Hindu Minority and Guardianship Act is not correct. The father has no power to restrict the
powers and status of the mother. The words in section 9(3) “a Hindu widow entitled to act” cannot be
interpreted to mean that “entitlement of a Hindu mother, even as natural guardian could be restricted in terms of
sub-section (1).” Section 6 is categorical in this regard. It makes the mother natural guardian of her minor
children after the father. It is a mandatory provision and the provision of section 9(1) cannot be taken into
recourse for whittling down this provision. It is also incorrect to say that provision of section 7(3), the Guardians
and Wards Act, which lays down that no guardian can be appointed by the court unless the testamentary
guardian has ceased to exist cannot be read so as to give validity to the testamentary guardian appointed by
the father so long as the mother is there. In sum, nothing in both the statutes can take away the status of the
mother as natural guardian after the death of the father. The father cannot substitute that status with the status
of testamentary guardian and subject her status with limitations which could be imposed on the powers of
testamentary guardian under the Will and statute.
4. Sub-section (3): Mother’s Power of Appointment: Legitimate Children
After the death of the father when mother becomes a natural guardian of her minor children or when she
becomes their natural guardian where father has disqualified himself from acting as such,1 she has power of
appointing testamentary guardian.
Like the father, she can appoint testamentary guardian of the person or property of the minor or of both.
5. Sub-section (4): Testamentary Guardian of Minor Illegitimate Children
It is mother alone who has power to appoint testamentary guardian of her minor illegitimate children. Putative
father has no such power. However, if the mother dies after appointing a testamentary guardian, the putative
father would be the natural guardian of the children and the mother’s appointee will remain suspended.
6. Clause (5): Power of the Testamentary Guardian
The powers of the testamentary guardian are the same as of the natural guardian, subject to such restrictions
as specified in the Will or the Act. In terms of section 8(2), whenever a testamentary guardian wants to alienate
minor’s property he has to seek prior permission of the court. On the other hand, section 28 of the Guardians
and Wards Act lays down that the testamentary guardian’s power of alienation of minor’s property is only
subject to the restrictions laid down in the Will. Thus, the question is: in view of conflict between the two
provisions which provision should prevail? InT.V. Duraiswamy v. E. Balasubramanian,1the Madras High Court
held that in view of section 5(6) of the Hindu Minority and Guardianship Act, the provision of the Hindu Minority
and Guardianship Act enacted in section 8(2) and section 9 would prevail over the provision of section 28 of the
Page 4 of 4
Guardians and Wards Act.2 In our submission, this is the correct view. After coming into force of the Hindu
Minority and Guardianship Act, the powers of alienation as well as all other powers in respect of minor’s person
and property of a testamentary guardian of a Hindu minor are regulated by the provision of the Hindu Minority
and Guardianship Act and all other laws inconsistent with it stand abrogated.
7. Clause (6): The Testamentary Guardianship Terminates on the Marriage of Minor Girl
Clause (6) lays down that the testamentary guardianship of a minor girl terminated automatically on her
marriage. In such a case her husband would become her natural guardian.
8. Husband’s Power of Appointing a Testamentary Guardian
Although husband is the natural guardian of his minor wife,3 he has been conferred with no power of appointing
a testamentary guardian. Since husband is the natural guardian of a minor girl, neither her father nor her
mother is the natural guardian and hence they cannot appoint a testamentary guardian. This means that no
person has power to appoint a testamentary guardian of a minor married girl.
1 ILR (1915) 42 Cal 953 .

2 Sub-section (3).
1 AIR 1977 Mad 304 [LNIND 1976 MAD 254].
2 AIR 1987 MP 145 [LNIND 1987 MP 246].
1 Proviso to section 6.
2 Reliance was placed on its earlier decision in Swaminathan v. Angayarkanni, AIR 1964 Mad 11 [LNIND 1963 MAD 34].
3 Clause (c) of section 6.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
10. Incapacity of minor to act as guardian of property.—

A minor shall be incompetent to act as guardian of the property of any minor.
Comments
1. Scope
This is a general section which lays down that no person who is a minor is competent to act as guardian of a
minor. This provision applies to all guardians, natural guardians, testamentary guardians, certificated guardians
and de facto guardians. It should be noted that this section does not affect the status of a guardian, it only
affects his capacity or competency to act as guardian so long as he remains a minor. The moment he attains
majority, the incompetency is removed and he becomes capable of acting as guardian.
2. Parents
It may be recalled that section 6 says that father is the natural guardian of the person and property of the minor,
and thereafter mother is the natural guardian. As regards the guardianship of property, this section will override
that provision and so long as the natural guardian remains a minor he is not competent to act as guardian of
minor’s property. However on attaining majority the disability is removed and he can act as guardian of the
property.
A minor parent can be a guardian of the person of his minor children, and the incompetency laid down in this
section does not apply to him.
3. Husband
Similarly a minor husband lacks competency to act as the natural guardian of his minor wife’s property though
he continues to be the guardian of her person. On attaining majority, this disability is removed and he becomes
competent to act as guardian of her property.
4. Testamentary Guardian
When a testamentary guardian is a minor then he cannot act as guardian. This provision overrides section 9
Page 2 of 2
while in general terms confers the guardianship of the person and property on the testamentary guardian. On
attainment of majority by the testamentary guardian, the disability is removed, and he can thereafter act as the
guardian of the property of the minor.
5. Certificated Guardian
Ordinarily no court will appoint a person who is a minor as guardian of another person, either of his person or
property. Section 21 of the Guardians and Wards Act lays down that a minor is incompetent to act as guardian
of any minor except his own wife or child, or where he is the managing member of an undivided Hindu family,
the wife or child of another minor member of that family. Thus under section 21 in the following three situations
a minor can be guardian of another minor:
(a) a minor husband can be the guardian of his minor wife.

(b) a minor parent (father or mother) can be the guardian of his or her minor child.
(c) A minor karta can be the guardian of the minor child and wife of other coparceners.
Section 21 does not state whether it is confined to the guardianship of person or it is of both of person and
property.1 In the third case it appears he can be guardian of both. In some judgments it has been said that
section 21 should be confined to the guardianship of the person,1 but there is nothing in section 21 to indicate
that, so far as Hindu minors are concerned, this section governs the matter.2
Reference should be made to our commentary on section 21 of the Guardians and Wards Act in Part III of this
work. Reference should also be made to our commentary on section 12 of the Hindu Minority and Guardianship
Act, 1956.
6. Guardianship of the Person
This section relates to the guardianship of the property alone and thus it would appear that a minor can be a
guardian of the person of another minor. But if we read this section alongwith section 21 of the Guardians and
Wards Act, then it appears that a minor can be guardian of the person of another minor only in those three
situations stated in para 5 above.
7. Incompetency to Act as Guardian
This section refers to the incompetency to act as guardian and does not say that a minor cannot be the
guardian of the property of another minor. Thus, when a natural guardian or testamentary guardian is minor,
during the period of minority he cannot act as guardian of the property of the minor but on attaining majority the
incompetency stands removed and he can act as guardian of the property.
1 In Ibrahim v. Ibrahim, ILR (1915) 39 Mad 608, the court said it includes both, while in Sunder Mani v. Gokulananda, 18
CWN 160: (1912) 16 IC 900, the Calcutta High Court took a contrary view. But the language of the section indicates
that it includes both.
1 Sundar Mani v. Bangosidhar, 16 IC 900; Mohedeen Ibrahim v. Md. Ibrahim, ILR 39 Mad 608.
2 Budhi v. Dhobai, AIR 1959 Ori 7 .
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
11. De facto guardian not to deal with minor’s property.—

After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a
Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
Comments
1. Scope
This section lays down that a de facto guardian cannot deal with minor’s property. Some hold the view that this
section has abolished the de facto guardian. This author is of the view that this is rather a simple view of the
matter. De facto guardian has not ceased to play a role in Hindu law.
Here we would proceed to:
(a) Define a de facto guardian.

(b) Discuss his position under the old Hindu law, and
(c) Examine his position after the coming into force of the Hindu Minority and Guardianship Act.
2. Definition of de facto Guardian
De facto guardians exist all over the world and probably they have existed all through the history and would
continue to exist all over the world. But neither the common law nor the civil law conferred on them any legal
status. In Hindu law de facto guardians and de facto managers have been recognised all along. Mohammedan
law did not totally ignore them. But it has so happened that the judicial interpretation helped the development of
the institution of de facto guardian in Hindu law and hampered it in Mohammedan law and the judicial organ in
both cases has been the same.
The term ‘de facto’ literally means, ‘from that which has been done’. In law it has become a conception under
Page 2 of 12
which past acts result in a present status. When a person having no right to do so assumes the charge of
another’s estate and carries on the administration and management of the estate—this continuous course of
conduct results in conferring on him the status of de facto manager. In respect to minor’s estate he has come to
be known as de facto guardian. Whether this status gives him some powers or rights, different systems of law
differ, but all agree that it imposes on him certain liabilities and obligation.
Hindu law confers on him some powers as well. The Privy Council in Hanuman Prasad’s case,1 said that under
‘Hindu law, the right of a bona fide incumbrancer, who has taken from de facto manager a charge on land
created honestly, for the purpose of saving the estate, or for the benefit of the estate is not affected by the want
of the de facto with the de jure title.’2 On the other hand Mohammedan law does not confer any power or right
on him. The Privy Council3 said, ‘it is difficult to see how the situation of an unauthorized guardian is bettered
by describing him as a de facto guardian. He may, by his de facto guardianship, assume important
responsibilities in relation to minor’s property, but he cannot thereby clothe himself with legal power to sell it.’
Mahajan, J. (as he was then) explained the distinction: “under Hindu system of jurisprudence it is the necessity
of the loan and the pressure on the estate that are the touchstone on which its validity and binding character on
the minor’s estate is judged while in other systems of law its validity and binding character on the minor
depends on the authority of the person incurring it.
The Madras High Court has defined him as follows:4
A de facto guardian is one who is not a legal guardian in the sense that he is neither a natural guardian or a
testamentary guardian or a court guardian. But who being interested in the minor, though a stranger, takes charge of
the management of the minor’s property.
A de facto guardian is a self-appointed guardian. He is the one who looks after the property of the minor and
generally acts in his interest. A fugitive or an isolated act of a person in regard to minor’s estate would not make
him a de facto guardian, nor would staying with the minor for some time. It is only some continuous course of
conduct in respect to minor’s estate that makes him a de facto guardian.1 It implies some continuity of conduct,
some management of property beyond one or two isolated acts.2 The length of time required to constitute a de
facto guardian would depend upon the circumstances of each case.
The question is: at what stage of meddling of minor’s estate, does an intermeddler become a guardian or,
whether the first act of intermeddling by a person who by continuous course of conduct becomes a de facto
guardian would be the act of de facto guardian, or a de facto guardian, who had ceased to act as such for a
considerable time, intermediate with the property, would that be an act of de facto guardian?
In China Alagum Persumal v. Vinayakathammal,3 the Madras High Court opined that the first act of
intermeddling with the estate will not be the act of de facto guardian, even if he continues in management so as
to constitute himself as de facto guardian. This view was dissented in Mukammala v. Kasineni,4 where the
court said that if it is a position which has to be built up by a series of acts of intermeddling, the first of such acts
by itself may not be the act of de facto guardian, but if the de facto guardian continues for some period, there
may well be circumstances in which the first formal act of his might be regarded as binding on the minor. Once
it is sufficiently shown that a person has been acting for some continuous period as guardian, then merely
because an act happens to be the first formal alienation it would not make that act less binding on the minor
than subsequent acts. With this view the present writer is in respectful agreement. But probably one single act
by itself would not constitute a person a de facto guardian.5 Similarly, a person, who has ceased to act as a de
facto guardian, subsequently intermeddles with the property that would not be an act of the de facto guardian.2
Mahajan, J. (as he was then) made two observations in respect to the de facto guardian. First, the phrase, ‘de
facto guardian’ is a loose expression for ‘de facto manager’. Secondly, the rule has application to cases of
relations and friends, who assume management of the property of a minor and who have some connection with
the family and does not apply to utter strangers and intruders.6 The learned Judge said, “A person who is not
attached to the minor by ties of affection or other reasons of affinity and remains in charge of the estate is in
truth a mere intermeddler with his estate.”
It is submitted that the term “de facto manager’ may be a better expression, but since the term ‘de facto
guardian’ is now a received term of jurisprudence, mere change of name may not serve any useful purpose.
Further, if the same person happens to look after the person as well as property, then the term, ‘de facto
manager’ would not be appropriate to describe his position in respect to the person of the minor. In that event it
Page 3 of 12
may become necessary to use two terms: ‘de facto custodian’ in respect to person and ‘de facto manager’ in
respect to property.
As to the second observation of Mahajan, J., it is true that in a great many cases only a relation or friend would
take over the management of minor’s estate, but would a person who has been in management and charge of
minor’s property and affairs for a considerably long time, not be called de facto guardian merely because he is
not related to the minor or has no connection with minor’s family?
A de facto guardian is not a person having any authority to deal with minor’s property. But, as Mahajan, J.,
himself said the principle is that if the estate of a person whether a minor or absentee, or a joint proprietor, has
been benefited by the act of a person who does not hold proper authority but who is in management of the
estate there that act must be respected by the true owner and should not be repudiated merely on the ground
of want of authority. Even the de jure guardian under Hindu law has no powers merely because he is a legal
guardian. The touchstone of the power of the guardian, whether de jure or de facto, is the necessity or benefit.
If a transaction can be justified on that basis, it is valid and binding on the minor. It is immaterial who the author
of the transaction is, and whether he has the authority or not. In that respect it is submitted it is immaterial
whether the person is related to the minor or not.
Under Hindu law, the de facto guardian was a recognized institution even before Hanuman Pd’s case,1 after
Hanuman Pd’s case2 his status has been doubted only in a few cases.3Matadeen’s case4 tried to cast its
shadows on several occasions, but without much success. That was a case under Mohammedan law. Under
Mohammedan law the term came for condemnation at a fairly early period of judicial interpretation.5 However,
even in Mohammedan law, the de facto guardian has some significance.6 Tyabji defines him as ‘an
unauthorized person who as a matter of fact (de facto) has custody and care of the person and/ or of his
property.’7 Even Lord Robson did not consider him devoid of all significance. His Lordship clearly said that he
by ‘his de facto guardianship assumes important responsibilities in relation to minor’s property.’1
3. Power of de facto Guardian under Old Hindu Law
The sources of power of the de facto guardian are certain texts on the basis of which the law of alienation of
property by those who hold limited powers have been evolved. Thus, the source from which the powers of the
karta, de facto and de facto guardian and the Hindu female have been evolved is the same. These texts are
quoted on our commentary on section 12.
4. Power of Alienation
The basic precedent on the guardian’s and other’s power of alienation in Hanuman Prasad v. Mst. Babooee,1
is:
Under the Hindu law, the right of bona fide incumbrancer who has taken from a de facto manager a charge on land
created honestly, for the purpose of saving the estate, or for the benefit of the estate is not (provided the circumstances
could support the charge had it emanated from a de facto or de jure manager) affected by the want of union of the de
facto with de jure title.
The broad proposition that it deduced from the observations of the Privy Council is: the de jure as well as de
facto guardian has power to alienate the property of the minor for legal necessity or benefit of the estate of
minor.
However, some of the High Courts have tried to place a narrow construction on the texts and the Privy
Council’s observation.
The Bombay High Court in two earlier cases,2 took the view that the de facto guardian has power to alienate
minor’s property and to take debts binding on his estate in certain cases. But in 1925, Macleod. C.J., and
Crump, J., said that a step-mother being not a legal guardian has no power to alienate minor’s property.3 This
case was followed in Harilal v. Gordhan.4 Then in Tulsidas v. Vaghela,5 the matter was considered by a Full
Bench. The question referred to the Bench was: “Whether under Hindu law a de facto guardian of a minor could
validly sell the properties of the minor to a third person for legal necessity?” The question was answered by the
majority in the affirmative, the Chief Justice Beaumount dissenting said, “But certainly it is strange to suggest
that such a power can be acquired by a relationship which has no legal sanction. A so-called guardian de facto
is not a guardian at all.” The learned Judge then referred to Matadeen v. Ahmed Ali,6 and felt that though the
case was under Mohammedan law, it laid down a general rule applicable to all cases of de facto guardians.
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According to the learned Chief Justice, “It is indeed strange conclusion that a power should be annexed to an
office held without authority which would not be so annexed if the office were held under legal sanction.”
Patkar, J., representing the majority felt bound by the Privy Council decision in Hanuman Pd’s case,1 though he
said that had he any option he would have preferred to follow Matadeen’s case.2 The Bombay High Court has
since followed the majority view.3
In Nokelal v. Rajeshwari,4 the Patna High Court followed the Privy Council decision in Hanuman Pd’s case. But
in Narsingh v. Ashutosh,5 Manohar Lal, J., tried to give a restricted interpretation to Hanuman Pd’s case by
saying that the rule applied to those cases where the de facto guardian in the management of properties of the
minor had himself an interest in the properties. The learned Judge observed: “But I strongly dissent from the
view that wholly unauthorised persons should be given the power to deal with the estate of the minor for his
supposed benefit.” In Kailash Chandra v. Rajani Kanta,6 Chatterji, J., in a very brief judgment, said that it is
well-settled by judicial decisions that under Hindu law an alienation by the de facto guardian, if for necessity, is
binding on the minor. That seems to be the view of the Patna High Court till the coming into force of the Hindu
Minority and Guardianship Act, 1956.
The Allahabad High Court in earlier cases took the view that an alienation by a de facto guardian, if for
necessity, is binding on the minor. That seems to be the view of the Patna High Court till the coming into force
of the Hindu Minority and Guardianship Act, 1956.
The Allahabad High Court in earlier cases took the view that an alienation by a de facto guardian for necessity
was valid both under Hindu law and Mohammedan law.7 After Matadeen’s case the Allahabad High Court
changed its position in respect to de facto guardian’s position under Mohammedan law, but it has never
doubted the proposition that under Hindu law de facto guardian has the power of alienation of minor’s
properties for necessity and benefit.8
The Calcutta9 and Lahore10 High Courts have consistently followed the Privy Council decision in Hanuman’s
case.
There is long line of decisions in the Madras High Court. As early as 1903 the court said that it is well-settled
that an alienation may be validly made by a de facto guardian for necessity or benefit of estate.1 In Vemba v.
Shrrinivass,2 it was held that all acts of the de facto guardian which are necessary, proper or prudent are
binding on the minor. In Racichan v. Vayiaravath,3 the court said that de facto guardian cannot impose onerous
covenants on the minor. In Seetharamana v. Maganti,4 the court said that the powers of the de facto and de
jure guardians were the same; and that an unauthorised alienation was merely voidable. However, in
Narayanan v. Ranunni,5 the court said the de facto guardian is scarcely distinguishable from an intermeddler.
In Jamulu v. Nilambara,6 Sastri, J., said that had the matter not been res integra, he would have followed the
observations of Lord Robson in Matadeen’s case, as he felt that there was nothing peculiar to the Hindu
jurisprudence to confer on a person, who without authority assumes the office of guardianship, any special
power. But the learned Judge felt boundly precedent. Then in three cases the court took the view that there is
no difference between the powers of de facto and de jure guardians.7 In Mukkamala v. Hanumanyamma,8 the
court said that a de facto guardian could give a good discharge of a debt due to minor.
In Pundarikakashya v. Shreemulu,9 a Full Bench held that a de facto guardian has no power to bind a minor or
his estate by a promissory note or acknowledgment of liability and therefore, a sale made for the discharge of
such debt was void. This decision was followed in Thadavarthi Bapayee v. Myneni Pundarika,10 where the
court said that an improper alienation made by a de facto guardian was void and the alienee was liable for
mesne profits from the date possession was delivered to him.
Both the cases went in appeal to the Federal Court, where the Full Bench judgment was affirmed. Their
Lordships said that a de facto guardian of a Hindu minor has no power to pass a promissory note in the name
of the minor so as to bind his estate without making himself liable and thus to furnish consideration for a
subsequent conveyance of minor’s property.11 Mahajan, J., (as he was then) said that the powers of the de
facto and de jure guardian under the Hindu law are the same, except by the reason of statutory provision
different result is apparent. His Lordship said that in the matter of raising simple money loans, mortgage and
sales, their powers are the same, but in the matter of acknowldgement of debts and registration of deeds, their
powers are different. The de facto guardian also has no authority to execute a promissory note on his behalf so
as to bind his estate on the note itself, and thus furnish valid consideration for the subsequent sale of minor’s
property.1
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This decision was followed in Ramalinga v. Shrinivaslu.2
In Palani Goundan v. Vajiakkal,3 the court said that alienation by a de facto guardian without necessity is void.
In G. Palani Goundar v. Sellappan,4 the court held that in certain circumstances mother can act as de facto
guardian of the minor child and if she can act as de facto guardian she could sell the properties of the minor for
legal necessity or benefit of the minor and the sale will certainly be binding on the minor. Venkatadri, J., said
that the powers of alienation of a de facto guardian under Hindu law are the same as those of a lawful guardian.
The true test to be applied in a case of alienation is one of necessity and not one of person doing the act. In
Govindaswamy v. Sakuntala,5 Ramamurti, J., said that under Hindu law a de facto guardian had the undoubted
power to enter into a family arrangement, provided it was for the benefit of the minor and was brought about to
resolve a family dispute.6
In Bettegowda v. Dyavarsagowda,7 the Mysore High Court and in Kalipa v. Panclavarupa,8 the Andhra
Pradesh High Court said the powers of the de facto and de jure guardians are the same. In the latter case the
court said that the de facto guardian can also for the benefit of the minor, enter into contracts and family
arrangements.
The Nagpur Judicial Commissioner’s Court took divergent view.9 Before 192610 when the question was
considered by a Full Bench,11 which followed the Hanuman Pd’s case. In the opinion of the Full Bench, the
existence of the joint family system among Hindus makes all alienations valid though they would be invalid if
the minors were not Hindus, because they were made not by their guardians but by the managers of their
families.12 The Gujarat High Court holds the view that a de facto guardian cannot alienate the properties of the
minor without legal necessity and he cannot also start a new business on behalf of the minor which will impose,
a liability on the minor.1
By way of summary we may say that cases which take the view that a de facto guardian has no power of
alienation rely on Matadeen’s case2 and cases taking contrary view rely on Hanuman Pd.,3 though give
different reasons. The Allahabad and Madras High Courts hold the view that Hindu law in this respect is
different because our sages have differently provided for such cases. The later Bombay decisions take that
view purely on the basis of stare decisis. Manohar Lal, J., of the Patna High Court tried to give a restricted
interpretation to Hanuman Pd3 by saying that a de facto guardian could alienate properties provided he himself
has an interest in the property. Halifax A., C.J., said that alienation was valid because it was made by the
manager of the joint family.4
All the judges of the Federal Court in Shriramulu v. Myneni,5 were unanimously of the view that for legal
necessity and for the benefit of the minor or his estate, the de facto guardian had power to alienate minor’s
property. Kania, C.J., said that in adopting this principle Hindu law has tried to find out a solution of the two
difficult situations: When a Hindu minor has no legal guardian, there will be no one who can handle and
manage his estate in law, so that unless someone is deemed to have such authority will not receive any income
or return from his estate, the second situations is: a person having no title cannot be permitted to intermeddle
with the minor’s estate so as to cause loss to the minor. Thus, a person who is in actual management of a
minor’s estate, whether de facto guardian, must have power in case of necessity or benefit to the minor to deal
with it in the manner best suited to the occasion in the interest of the minor. And in this respect there is no
difference between the powers of a de jure and de facto guardian.
5. Improper Alienation is Void
There is some controversy among our High Courts whether an improper alienation made by a de jure guardian
is merely voidable or void.6
The Federal Court seems to have taken the view that alienation is merely voidable and not void.1 The Madras
High Court has recently expressed the view that alienation of joint family property by a de facto guardian is
voidable.2 In Mulla’s Hindu law also we find a similar statement: “An alienation by a de facto guardian, which is
neither for necessity nor for the benefit of estate of the minor, is not void but only voidable, and may therefore
be ratified on the minor’s attaining majority.”3
Derrett takes the view that an improper alienation made by a de facto guardian is really inchoate. This means
that, if the property were in minor’s possession when he attained majority he had only to repudiate the
transaction by notice or by conduct inconsistent with the alienee’s title. If it were out of his possession, as is
unusually the case, he might sue for the alienation to be set aside for a declaration that it did not bind him, and
Page 6 of 12
for possession. He must repudiate or sue within twelve years from his attaining majority.4 With this view the
present writer is in agreement.
6. Power to Borrow Money and Execute Promissory Note
Is the estate of the minor liable for the money borrowed by the de facto guardian? Whether a de facto guardian
can execute a negotiable instrument in the name of the minor so as to be enforceable against the minor’s
estate? The specific question before the Federal Court in Shrimulu v. Myneni,5 was: whether a de facto
guardian of a Hindu minor has power to pass a promissory note in the name of the minor so as to bind his
estate and can it become consideration for a conveyance executed by him? The Federal Court considered the
question in a wider perspective. The Federal Court held: A guardian, de facto or de jure, of the minor’s property
has power to bind minor’s estate by a simple contract or debt or to borrow money on the security of a
negotiable instrument, provided that the contract debt or loan is for legal necessity or benefit of the minor or his
estate and provided further that the guardian has not excluded his liability under the contract, debt or negotiable
instrument; in no case a minor is personally liable.
7. Power to Acknowledge
It is now settled law that the de facto guardian has no power to acknowledge debts on behalf of the minor. The
expression ‘against duly authorized’ in sections 19 and 20, the Limitation Act, includes only ‘the lawful guardian
of the minor’ and does not include a de facto guardian. Following the Privy Council decision in Mossiuddin
Ahmed v. Ahmed,1 the courts have taken the view that a de facto guardian has no power to make reference to
arbitration.2 The de facto guardian has also no power to make a gift of minor’s property.3
8. Power to give in Adoption
A new role has been assigned to guardians under the Hindu Adoptions and Maintenance Act. The guardian of a
child, who is an orphan, or who has been abandoned by his parents or whose parents are not known, can give
such a child in adoption.4 Under the Adoptions and Maintenance Act, 1956, the term guardian included only a
de jure guardian, but by the Amending Act, 1962, the meaning of the term has been extended so as to include
de facto guardians. The guardian is now defined as a person having the care of the person of the child or of
both his person and property and includes—(a) a guardian appointed by the Will of the child’s father or mother
and (b) a guardian appointed or declared by a court’.5 Thus, the manager or secretary of an orphanage or the
person who has the actual care of the child would be the persons covered under the term ‘guardian’.
When the guardian exercises his power to give the child in adoption he must obtain prior permission of the
court to do so.6 Before according permission the courts shall be satisfied that the adoption will be for the
welfare of the child.7
Before 1956, an orphan child could not be given in adoption even by his legal guardian. The Act now makes an
innovation, that an orphan child can be given in adoption by the de jure or de facto guardian.
9. De facto Guardian and Hindu Minority and Guardianship Act
The Hindu Minority and Guardianship Act, 1956, contains in its section 11 the following provision in respect to
the de facto guardian.
After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a
Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
Does this provision abolish the de facto guardian?
Some of the commentators1 and judicial decisions2 hold that it does. In our submission it does not. Derrett
thinks that both interpretations are possible.3
The Act defines guardian as a person having the care of the person of a minor or his property or of both, and
includes a natural guardian, testamentary guardian, certificated guardian and a guardian appointed by any
court of wards. Thus any person having the care of the person or property or both of the minor would be
included in the term ‘guardian’. Thus, it is submitted that de facto guardian is included in the definition of the
term guardian. Only difference between him and the de jure guardian is that in his case the care is not vested in
him by law, while in the latter case it is so vested. But the Act nowhere provides that the person having the care
of the minor must be having it under the authority of law. Section 4 of the Act which defines ‘guardian’ uses the
word ‘includes’, that means that the cases that follow the definition are merely illustrative. The definition of the
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term, guardian in the Act is almost the same as contained under the Guardians and Wards Act, 1890, and
under that Act it has been held that the definition of the term is wide enough to include a de facto guardian.4
Section 11, the Hindu Minority and Guardianship Act, merely says that a de facto guardian is not entitled to
dispose of or otherwise deal with minor’s property. Even before 1956 the de facto guardian was not entitled to
dispose of minor’s property, though if he disposed it of for justified purpose it was valid. Section 11 does not say
that an alienation by a de facto guardian is null and void. No text of the Dharamashastra lays down that uncle,
son, wife, servant, dependent, slave, apprentice, agent or any other person was entitled to alienate the property
of a minor. What they laid down is that if an alienation is made or a debt is taken under certain circumstances,
the householder is bound to honour it and cannot wriggle out by pleading want of authority on the part of the de
facto alienor. Thus, when an alienee sought to bind the shareholder’s (or minor’s) estate he did not base his
claim on any authority on the part of alienor (or de facto guardian) but on the basis that alienation was made for
legal necessity or benefit of estate and that he made proper and bona fide enquiries as to the need of the
householder (or minor). And in this respect Hindu law made no distinction between a de facto guardian and a
de jure guardian. Thus, in our submission section 11 does not abolish de facto guardian. In cases where a
minor’s property is not much or in cases where a person is not willing to take the pain and expenses of getting
oneself appointed a guardian, yet he is willing to act in the interest of the minor, in our peculiar social context,
the de facto guardian fulfils a social need. Then it should not be forgotten that if the de facto guardian has
powers of a guardian, he has also the liabilities of a guardian. On the other hand, if he is treated as an
intermeddler or a trespasser, no liability which arises on account of guardian’s fiduciary character can be
imposed on him.
After the coming into force of the Act, our High Courts have expressed some divergent views.
In Ram Chandra v. Annapuram,1the Kerala High Court considered the matter in the following circumstances:
The mother of a child of seven years applied for the custody of the child under section 25 of the Guardians and
Wards Act with the averments that she had the custody of the child but was deprived of it by the father of the
child. The court said that an application under section 25 for the custody of the child against the father is not
applicable in law unless she was appointed guardian by the court, in as much as mother is not the natural
guardian of the child, but father is. The Kerala High Court said that section 5 of the Hindu Minority and
Guardianship Act enumerates four classes of persons as guardian (which does not include de facto guardian).
The court said that though definition contains the word ‘includes’, the word ‘include’ is ordinarily a term of
enlargement, but the words do not like mathematic symbols, connote the same thing or meaning in every
context. In conclusion the court held that a de facto guardian is not included in the definition of guardian.2
This was a context between the mother and father and nothing was shown against the father, the father being
the natural guardian was granted custody. The case was not argued from the point of view of welfare of the
child. It was taken for granted that the natural guardian by right is entitled to custody.
The question came before the Orissa High Court in Daneyi Gurumurthay v. Raghu Podhan,3 and the court was
categorically of the view that after the coming into force of the Hindu Minority and Guardianship Act, no person
shall be entitled to dispose of or deal with the property of a minor merely on the ground of his being de facto
guardian. Such an alienation is void ab initio. In this case the natural mother of a minor whose both adoptive
parents were dead purported to made a sale of minor’s property in satisfaction of a mortgage debt, the deed of
which was executed by the adoptive father of the minor. The price of the land was disputed and it was alleged
that it was on the lower side. On the question whether alienee could seek the refund of consideration money,
the court said that he could not as alienation was void ab initio. Interestingly in this case the guardian of the
minor did not enter into any personal covenant with the alienee and therefore the action against the guardian
too failed.4
In Narayan Singh v. Sapurna,5 the father had refused to act as natural guardian and did not care for the child.
Under these circumstances mother made the alienation, the court held the alienation void. The court said that
as long as the father is alive the mother cannot claim to be the guardian. The position was not very much
different in regard to father and mother of a minor even before this new Act came into force. A de facto
guardian is a person who does not come under any of the categories given in section 4 of the Act but who
meddles with the properties or affairs of a minor. To safeguard the minor’s interest from any invasion
whatsoever through the assistance of a de facto guardian, the provisions under section 11 of the Act have been
made. The court added that in case she wanted to act as a guardian, she should get necessary proceedings for
getting herself appointed as a guardian. In P.T. Chathi Chettiar v. Kariat Kunnummal Kanaran,1 the mother
alienated minor sons’ share in the property jointly held by the minors and their father. The court held that since
Page 8 of 12
the father of the minor was not disqualified from acting as guardian, alienation made by the mother (who was
no more than a de facto guardian) was void, and alienation being void, the minor sons were not bound to file a
suit for cancellation of the alienation. The court held that minor’s suit for partition and possession was
competent.2 However, the court added that in this case it was not argued (and no material was on record) that
there were exceptional circumstances in which mother acted as “natural guardian” and there were no
circumstances shown where father could be treated as non-existent. The court obviously has Jijabai v. Pathan
Khan, in view. In this case it was also not shown that alienation was for the benefit of the minor.
In Talari Erappa v. Muthyalappa,3 the Mysore High Court went a step further. It held that an alienation by de
facto guardian is void and therefore it could not be ratified by the minor on attaining majority the court said that
after coming into force of the Hindu Minority and Guardianship Act, the de facto guardian has no power of
alienating minor’s property. The court added that whatever might have been the position before the Act came
into force, after the coming into force of the Act, de facto guardian has no power whatsoever to deal with
minor’s property. In this case there was a clear finding that alienation was not made for any legal necessity or
benefit of the minor.
On the other hand, we have a line of case which take a different view. Expressly dissenting from the Kerala
view, the Bombay High Court in Ratan v. Bisan,4observed that definition of guardian in section 45 of the Hindu
Minority and Guardianship Act read with the similar definition of guardian under the Guardians and Wards Act is
not exhaustive. The definition is not to be given restrictive meaning. The form is used in a wider sense so as to
include a de facto guardian: Any person—whosoever he is de jure or de facto—having the care of the person or
property of the minor would fall within the definition of guardian. This was an application under section 41(3),
the Guardians and Wards Act, by the minor who on attaining majority claimed the property back from the
guardian with the averment that the defendant was his uncle and as his de facto guardian he was in possession
of his property. He said that on attaining majority he was entitled to get possession of the property. The
argument on behalf of the defendant was that he being the de facto guardian provision of section 41, the
Guardians and Wards Act would not apply to him. The Bombay High Court said that the definition of guardian
being an inclusive definition there was no reason why a person who acts as de facto guardian should not fall
within the definition of guardian under both the statutes. Reliance was placed on cases decided under the
Guardians and Wards Act.1
The case clearly indicates that if we would not recognize the de facto guardian; the minor’s interest would
suffer.
In Manik Chand v. Ram Chandra,2 the Supreme Court after a review of authorities, said that a contract for the
purchase of immovable property by the mother is valid and specifically enforceable. It is not clear whether
mother was a de facto or de jure guardian.
Surinder Kaur Sandhu v. Harbax Singh Sandhu,3 is an illustrative case: Soon after marriage parties migrated to
England and established matrimonial home there, a child was born to them in England. The wife was working
there as a clerk and husband as a bus driver. The husband was a man without character. He was involved in
some crime and sentenced to a term of imprisonment. The wife obtained an order of probation for him.
Husband abused the magnanimity of the wife and as soon as the probationary period was over he flew to India
with the child. He did not inform his wife. The wife came and applied for custody. The Indian courts dismissed
her application holding that since she was not the guardian, her application was not competent. She went back
to England and obtained custody order from an English court apart from the fact that under English law parents
are coordinate guardians, the English court in matters of custody as well as other matters pertaining a child
consider child’s welfare as the first and paramount consideration. Armed with that order she came to India and
filed an application to the Punjab and Haryana High Court. But the High Court refused her application for
restoration of custody to her, as it considered that it would be in the welfare of the child if it lived in India, with
father and grandparents who were affluent. Thereafter the mother went to the Supreme Court in appeal.
Chandrachud, CJ., on the jurisdictional question under private international law made the most pertinent and
relevant observation which is as following:
Section 6 of the Hindu Minority and Guardianship Act, 1956, constitutes the father as the natural guardian of a minor
son. But the provision cannot supersede the paramount consideration as to what is for the welfare of the minor.
Thus, the Supreme Court has laid down that welfare of the child being a paramount consideration the fact that
someone happens to be a natural or de jure guardian would not be the over-riding consideration before which
the claim of de jure guardian would not prevail.
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The Supreme Court in Jijabai v. Pathankhan,1 said that if the father refuses to act as a guardian and the
mother has been in the management of the minor’s property for several years she has powers to bind the minor
by granting lease of minor’s land in the course of management of the property. The learned judge,
Vaidailingam, J., observed that in such circumstances mother could be considered as the natural guardian. In
our law she is not a co-ordinate guardian with the father, and so long as the father is alive or has not been
removed by a competent court from guardianship, the mother’s position will be that of a de facto guardian.
Though after Githa Hariharan v. Reserve Bank of India2 mother, where father is totally ineffective, has been
recognized as natural guardian of her minor child. The Supreme Court has thus recognized the de facto
guardian. The Allahabad High Court said that even if the father is alive, the mother is competent to give notice
of demand under the Rent Control Act and is also competent to file the suit on behalf of the minor.3Trivedi, J.,
drew support for this view from the provision of Order XXXII, rule 1, C.P.C. under which a “next friend” can file a
suit on behalf of the minor. His Lordship said that mother, as “next friend” could give the notice and file the suit.
But whether we call her “next friend” or a de facto guardian, the position is more or less the same though a de
facto guardian has some standing, a next friend may not have any.
In Mukesh v. Deonarayan,4 mother of a minor boy whose father was alive entered into a contract for the
purchase of land on behalf of the minor and when the vendor refused to execute the deed, she sued him for
specific performance of the contract. It was contended by the vendor that the presence of the father, the mother
being not a guardian of the child had no power to enter into a contract and her contract being invalid, the suit for
specific performance was not competent. It was established as a fact that relationship between the father and
minor son was not cordial; the father did not care for his son, and the child all along lived with the mother. V.D.
Gyani, J., observed:
The definition of guardian referred to in section 4(b)(i) to (iv) is an inclusive definition and there is no reason why the
person who acts as a de facto guardian, should not be included within the definition of a “guardian” as was recognized
for certain purposes under the old law.
In conclusion the court held that the agreement for the purchase of land entered into by the mother was valid
and specifically enforceable as it was for the welfare of the child.
The Supreme Court in Madhegowda v. Ankegowda,5 has held that any alienation made by sister acting as de
facto guardian where original owner had died leaving behind two daughter is in contravention of section 11,
therefore, invalid. The transferee does not acquire any interest in such property and minors can repudiate the
transaction on attaining majority.
1 Hanuman Prasad v. Mst. Bobooee, (1856) 6 MIA 393.

2 Matadeen v. Md. Ali, (1912) 34 All 213 : This was followed in Imambandi v. Mustsaddi, ILR (1918) 45 Cal 887 .
3 Bapaya v. Myneni, 1949 PC 218.
4 Palani Gouldan v. Vajikkal, AIR 1956 Mad 476 [LNIND 1955 MAD 186].
1 Chinna Alagum Persumal v. Vinayakathammal, AIR 1929 Mad 110 [LNIND 1928 MAD 188].
2 Harilal v. Gordhan, AIR 1927 Bom 611 .
3 AIR 1929 Mad 110 [LNIND 1928 MAD 188].
4 AIR 1938 Mad 950 [LNIND 1938 MAD 104]. See also Govindaswamy v. Sakuntala, 1966 (2) Mad 414.
5 AIR 1938 Pat 878 .
6 Bapaya v. Myneni, AIR 1949 FC 218 (251).
1 See also Gour, Hindu Code, 446.
Page 10 of 12
2 (1956) 6 MIA 393; see Gopi Charan v. Mst. Ishwari, 3 SDAR 93; Raja Sahibdeen v. Brijraj Singh, 6 SDAR 54.
3 Limbaji v. Rabi, 49 Bom 576; Tulsidas v. Vaghela, 57 Bom 40, per Chief Justice. Nar Singh v. Asuthosh, AIR 1938 Pat
487 .
4 (1912) 34 All 213.
5 See Ramaswami v. Kashinath, AIR 1928 Mad 226 per Sastri, J.
6 Ezaz v. Iftikar, AIR 1932 PC 76 ; Md. Amin v. Vakil, AIR 1952 SC 358 [LNIND 1952 SC 55].
7 Muslim Law, 4th Edn., 213.
1 (1856) 6 MIA 393.
2 Bai Amrit v. Baj Manek, (1975) 12 BHCR 79; Nathuram v. Shom Chhagan, (1890) ILR 14 Bom 562; See also Hanapa
v. Malpai, (1890) 15 Bom 259.
3 Limbaji Ravji v. Rahi Ravji, AIR 1925 Bom 499 ; see also Dudappa v. Chanbasappa, AIR 1915 Bom 150 .
4 AIR 1927 Bom 611 .
5 57 Bom 40.
6 (1912) 34 All 213.
2 (1912) 34 All 213.
3 Malkajun v. Sarubai, AIR 1943 Bom 234 ; Tataya v. Radha, AIR 1953 Bom 273 [LNIND 1952 BOM 48]: ILR (1953)
Bom 570 [LNIND 1952 BOM 48]; Majidan v. Rammarayan, (1903) 26 All 22; Hasan Ali v. Mehadi, (1977) 2 All 533;
Seetaram v. Amir Begum, (1886) 8 All 324; But see Hamir Singh v. Zakia, (1875) 1 All 57.
4 AIR 1937 Pat 141 .
5 AIR 1938 Pat 487 .
6 AIR 1945 Pat 298 .
7 Majiden v. Rammarayan, (1903) 26 All 22; Husan Ali v. Mehadi, (1977) 2 All 553; Seetaram v. Amir Begum, (1886) 8
All 324; But see Hamirshing v. Zakia, (1875) 1 All 57.
8 Adhar Chandra v. Kirtibaksh Bairagi, 6 IC 638.
9 Ganga Pd. v. Phoolsing, 10 WR 106; Md. Mondul v. Nafur, ILR (1889) 26 Cal 820 ; Adhar Chandra v. Kirtibaksh, (1910)
12 CLJ 306: 6 IC 638; Krishna v. Ratan, 1916 Cal 849; Kalipada v. Puranabala, AIR 1948 Cal 269 .
10 Labhamal v. Malakram, AIR 1926 Lah 619 ; Kundanlal v. Beni Pd., AIR 1932 Lah 293 ; Martu v. Nandlal, 73 PR 1890;
Tapassi v. Rajaram, AIR 1930 Lah 136 ; Piare Lal v. Lajja Ram, AIR 1935 Lah 437 . In Ramnath v. Sant Ram, AIR
1935 Lah 820 Basket, J., tried to take narrow view.
1 (1903) 13 MLJ 233.
2 (1912) 23 MLJ 638 [LNIND 1912 MAD 480].
3 AIR 1923 Mad 553 [LNIND 1922 MAD 235].
4 AIR 1926 Mad 457 [LNIND 1925 MAD 432].
5 AIR 1925 Mad 260 [LNIND 1924 MAD 209].
6 AIR 1928 Mad 226 .
7 AIR 1929 Mad 110 [LNIND 1928 MAD 188]; Puroshotama Ratho v. Brundavan, AIR 1931 Mad 597 [LNIND 1930 MAD
256]; KESS Sankaralingam v. KESS Kuppaswami, AIR 1935 Mad 305 [LNIND 1934 MAD 395].
8 AIR 1938 Mad 950 [LNIND 1938 MAD 104].
9 AIR 1946 Mad 1 [LNIND 1945 MAD 205](FB); See also Nagindas v. Bhmrao, AIR 1943 Bom 442 .
10 AIR 1946 Mad 198 [LNIND 1945 MAD 222].
11 AIR 1949 FC 218 .
1 AIR 1949 FC 218 (264).
2 AIR 1955 Mad 637 [LNIND 1955 MAD 56].
Page 11 of 12
3 AIR 1956 Mad 476 [LNIND 1955 MAD 186].

4 (1964) 1 Mad 748.
5 (1966) 2 Mad 414.
6 The Supreme Court decision in Kondamudi v. Myneni, (1949) FCR 65.
7 AIR 1953 Mys 130 .
8 AIR 1959 AP 40 [LNIND 1957 AP 30].
9 In Hussain v. Raja Ram, 1914 Nag 74, the court said Hunuman Pd’s case did not apply to de facto guardian. But in
Sommarpai v. Gopal Singh SA, No. 26 of 1914 referred to in the Full Bench judgment, the court took a contrary view.
10 See also Ganpat v. Bissessorlal, AIR 1923 Nag 30 ; Naryan v. Dharam, AIR 1925 Nag 134 ; Vithu v. Devindas, AIR
1918 Nag 81
11 Kesho v. Jagnnath, AIR 1926 Nag 81 .
12 Kesho v. Jagannath, AIR 1926 Nag 81 (83); Explaining the use of word ‘manager’ by the Full Bench, the court in
Panjatao v. Ram Kishan, AIR 1926 Nag 332, said that there was no distinction between manager and de facto
guardian. See also Mst. Gasubai v. Chandrabhaga, (1948); Waman Rao v. Shatibhai, AIR 1952 Nag 317 .
1 Jaya Kant v. Durga Shanker, AIR 1970 Guj 106 [LNIND 1968 GUJ 65].
3 (1856) 6 MIA 393.
4 It is very interesting to note that Hallifax, ACJ., closely scrutinized the judgment in Hanuman Pd’s case and came to the
conclusion that case dealt ‘throughout with the powers of the manager, and the word ‘guardian’ occurs in the judgment
only four times twice in quotation from the judgment of the Saddar Divani Adalat, once in quotation from plaint and once
in their Lordships summing up of their conclusion.’ In the last place the word may have been used because it has been
used all throughout the case in the court in India, or may I suggest, without disrespect, by slip’. The learned ACJ said
that alienation in that case was valid because made by the manager, but difficulty was felt when he was confronted with
the question as to who is the manager of a Hindu joint family and the learned ACJ simply said: “I take it that any adult
member of the family, male or female, is entitled to’.
In our submission if this statement relates to minor’s share in joint family property it is incorrect, and if it relates to the
separate property of the minor it is incomplete.
5 AIR 1949 FC 218 .
6 In Balappa v. Chandassappa, AIR 1915 Bom 150 and Limbaji v. Rahi, AIR 1925 Bom 499 the Bombay High Court and
that in alienation by de facto guardian was void. But in Fakirappa v. Kemanna, AIR 1920 Bom 1 (FB) it said that such
an alienation was voidable. This was followed in Laxmana v. Rachappa, (1919) 42 Bom 620; Fakappa v. Lumanna, 44
Bom 742; Brojendra v. Prosumna, (1921) 24 CWN 1016; Labhamal v. Malkaram, AIR 1925 Lah 619 ; Punjab Rao v.
Ram Krishna, AIR 1926 Nag 332 . But in Malkarajin v. Saubai, AIR 1948 Bom 23, the court said that such an alienation
was void.
Kailash Chandra v. Rajanikant, AIR 1945 Pat 487 ; the court said that though such a transaction is not binding on the minor,
he may ratify it on attaining majority. To this extent such an alienation may be called voidable. Mastu v. Nandlal, 73 R
1890; Tapasram v. Rajaram, AIR 1930 Lah 136 (voidable). Thayammal v. Kuppana, AIR 1915 Mad 659 (void).
Sethavammana v. Appiah, AIR 1926 Mad 95 (voidable). Ramaswami v. Kashinath, AIR 1928 Mad 226 (void). See also
Chinna Alagum Peruamal v. Vinayakathammal, AIR 1929 Mad 110 [LNIND 1928 MAD 188]; Puroshotama Ratho v.
Brundavan, AIR 1930 Mad 597 [LNIND 1930 MAD 14]; Bappayya v. Pundabkakshayya, AIR 1946 Mad 198 [LNIND
1945 MAD 222]. Palani Gouldan v. Vajikkal, AIR 1956 Mad 476 [LNIND 1955 MAD 186], Observation of Federal Court
in 1949 FC 218, followed. Panchu v. Harishikash, AIR 1960 Cal 446 [LNIND 1959 CAL 39](void).
1 AIR 1949 FC 218 .
2 Dhanasekaram v. Manorajan, AIR 1992 Mad 214 [LNIND 1991 MAD 414].
3 Hindu Law, 11th Edn., 629.
4 Introduction to Modern Hindu Law, p. 88.
1 (1920) 43 Cal 713.
2 Mad Jamil Ata v. Md Ilafiz Ata, AIR 1928 Oudh 449 ; Ameer Hasan v. Md. Ezaz, AIR 1929 Oudh 134 .
3 See Chapter XXIII of this work.
4 Sub-section (4) of section 9, the Hindu Adoptions and Maintenance Act, 1956.
Page 12 of 12
5 Explanation (ia) to section 9, the Hindu Adoptions and Maintenance Act, 1956.
6 Section 9(4), the Hindu Adoptions and Maintenance Act, 1956.
7 See also sub-section (5) of section 9, the Hindu Adoptions and Maintenance Act, 1956.
1 Explanation (ii) to section 9, the Hindu Adoptions and Maintenance Act, 1956. For the definition of ‘district court’see
section 3(b), the Hindu Marriage Act, 1956 and section 4(5), the Guardians and Wards Act, 1890. Mulla’s Hindu Law,
12th Edn., p. 1040; Raghavachariar, Hindu Law, 4th Edn., pp. 1014-15.
2 See also Pitamber v. Ram Chandra, 1968 Pat 320; Rajalakshmi v. Ram Chandran, AIR 1967 Mad 113 [LNIND 1966
MAD 36].
3 Introduction to Modern Hindu Law 85.
4 See Wallace v. Wallace, AIR 1919 Mad 189 ; Nar Singh Dass v. Hemraj, AIR 1934 Lah 323 ; Abaji v. Damodar, (1938)
Nag 399; Sithalinga Chetty v. Ardhaman Chetty, AIR 1939 Mad 645 ; Jiwan Krishna v. Sailendra, AIR 1946 Cal 272 ;
Rajeswari v. Sankeranarayana, AIR 1948 Mad 155 [LNIND 1947 MAD 70]; Nanka v. Mittal, AIR 1955 VP 3 .
1 AIR 1964 Ker 269 [LNIND 1963 KER 19]
2 The Court has quoted pre-Act judgment taking that view.
3 AIR 1967 Ori 68 [LNIND 1966 ORI 26].
4 Reliance was placed on the Privy Council decision in Ram Tuhund Singh v. Biseswar Lal, (1875) 2 IA 131.
5 AIR 1968 Pat 318 .
1 AIR 1984 Ker 118 [LNIND 1983 KER 108].
2 Reliance was placed on Ayyappan v. Antony, 1978 KLT 532; Thomas v. Gopal Pillai, 1968 KLT 388; Devineni Suseela
v. Sivarawalah, (1976) 1 Andh WR 423; Gurmurthy v. Raghu Paddan, AIR 1967 Ori 68 [LNIND 1966 ORI 26].
3 AIR 1972 Mys 31 .
4 AIR 1967 Bom 190 [LNIND 1963 BOM 19].
1 Hoshirwan v. Sharoshbanu, AIR 1934 Bom 311 ; Ram Chanda v. Shyama, AIR 1954 All 690 [LNIND 1954 ALL 7];
Sithabai v. Radha Bai, AIR 1919 Mad 189 .
2 AIR 1981 SC 519 [LNIND 1980 SC 241].
3 AIR 1984 SC 1224 [LNIND 1984 SC 108].
1 AIR 1971 SC 315 [LNIND 1970 SC 341].
2 AIR 1999 SC 1149 [LNIND 1999 SC 165].
3 K. Kumar v. Onkar Nath, AIR 1972 All 81 .
4 AIR 1987 MP 85 [LNIND 1986 MP 120].
5 AIR 2002 SC 215 [LNIND 2001 SC 2625].
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
12. Guardian not to be appointed for minor’s undivided interest in joint

family property.—
Where a minor has an undivided interest in joint family property and the property is under the management of
an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided
interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a
guardian in respect of such interest.
Comments
1. Scope
This section should be read along with section 6. The first para of section 6, speaking of the natural
guardianship of minor’s property, lays down, in parenthesis “except excluding his or her undivided interest in
joint family property.”
This section speaks of the appointment of a guardian of the undivided interest in the joint family property of a
minor coparcener which is under the management of an adult member. This section saves the inherent
jurisdiction of the High Court to appoint guardian of minor’s interest in the Mitakshara joint family property.
The section states that when the minor’s undivided interest is under the management of adult members of the
joint family, guardian of his interest cannot be appointed. But when the property is not under the management
of an adult member, i.e., when it is in the management of a minor member, guardian can be appointed. It
seems, in view of the proviso to the section, such appointment can only be made by the High Court. Section 3
of the Guardians and Wards Act also preserves an inherent jurisdiction of the High Court.
This section is obviously confined to the Mitakshara joint family and does not relate to the Dayabhaga joint
Page 2 of 8
family, since words in the section are “an undivided interest”. It is the interest of a Mitakshara coparcener which
is unspecified and unascertained, while that of the Dayabhaga coparcener it is certain and specified share.
It appears that this section codifies the old law. Under Hindu law as we have seen earlier, the father, and after
him, the mother, is the natural guardian of the property of minor children but neither the father nor the mother,
in that capacity, has any right or power over the individual interest of the minor children in the joint property. It is
the karta of the joint family in whom is vested the entire management of the whole joint family property,
including the interest of minor coparceners. It is a well established rule that no person can be appointed as
guardian of the minor coparcener’s interest in the joint family property under ordinary circumstances.
It would help in the understanding of the law if we summarize the law relating to the karta’s power of alienation
of the joint family property. There is no inhibition that karta cannot alienate minor’s interest in the joint family
property.
2. The Karta
The karta of the joint family enjoys a unique position under Hindu law. In no other system of the law, ancient or
modern, do we find an institution or legal concept like that of the Hindu karta. Hindu jurisprudence recognizes
the principle that if the liability is incurred by one on behalf of another in the circumstances where it is justified
then the person on whose behalf the liability was incurred is liable, notwithstanding the fact that no
authorization was made for incurring it. It was on the basis of this principle that powers of karta as well as of
guardian were developed. The powers of karta and guardian have been developed out of the same texts. The
result was that before 1956 there was an insignificant distinction between the powers of the two. The karta and
the natural guardian could alienate the property for legal necessity and for benefit of estate. Only distinction
was that the karta could alienate for acts of indispensable duties, while the guardian had no such power.
3. Karta’s Power of Alienation
The powers of the karta as well as of the guardian,1 are said to be based on the following four verses of the
Mitakshara. Vijnaneshwara lays down the general rule in the following verse:
Therefore, it is settled point that property in the paternal or ancestral estate is by birth, (although) the father has
independent power of disposal of effects of other than immovables, for indispensable acts of duty and for purposes
prescribed by texts of law, as gifts through affection, support of family, relief from distress and so forth; but he is
subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or
inherited from his father or other predecessors; since it is ordained, ‘though immovable or bipeds have been acquired
by a man himself, a gift or sale of them should not be made without convening all the sons’. They who are born and
they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift or sale should,
therefore be made.1
Vijnaneshwara then in verse 28 quotes a texts of Vyasa:
Even a single individual may conclude a donation, mortgage or sale of immovable property, during a season of
distress, for the sake of the family and especially for pious purposes.2
In verse 29 he comments upon this text:
The meaning of that text is this: while the sons and grandsons are minors and incapable of giving their consent to a gift
or the like or while brothers are so and continue unseparated: even one person, who is capable, may conclude a gift,
hypothecation, or sale of immovable property if calamity (apatkale) affecting the whole family requires it, or the support
of the family (kutumbarthe) renders it necessary or indispensable duties (dharmarthe), such as obsequies of the father
or the like, make it unavoidable.3
Then in verse 30 he further restricts the power of alienation:
Amongst the unseparated kinsmen, the consent of all is indispensably requisite, because no one is fully empowered to
make an alienation since the estate is in common.4
Thus, Vijnaneshwara recognizes these exceptional cases in which the joint family property may be alienated: (i)
Apatkale i.e., in times of distress; (ii) Kutumbarthe, i.e., for the sake of the family: This is the usual meaning
assigned to the expression, kutumbarthe, though it seems that Vijnaneshwara did not purport to assign that
Page 3 of 8
meaning but as tutposne, i.e., required for the maintenance of the members of the family, and (iii) Dharmarthe,
i.e., for the performance of indispensable duties.
4. Legal Necessity
In the year 1856, the Judicial Committee of the Privy Council gave its opinion in Hunoomanpersaud v. Babooee
Mumraj Koonweeree.5 Lord Justice Knight Bruce made certain observations which are now considered to be
the basis of law. The learned Judge observed:
The power of the manager for an infant heir to charge an estate not his own is, under Hindu law, a limited and qualified
power. It can only be exercised rightly in a case of need, or for the benefit of estate. But, where in a particular instance,
the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected
by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted or the
benefit to be conferred upon it, in the particular instance, is the thing to be regarded.
Hanuman Prasad was in fact a case of alienation by a guardian of a Hindu minor child. Rani Digambari, mother
of the minor child, Lal Indershen Singh, executed a mortgage of the minor’s properties, while she was in the
management of the estate, for the satisfaction of certain outstanding debts binding on the estate. Lal Indershen
Singh, on attaining majority, filed a suit to set aside the mortgage. The Rani was also the legal guardian of
Indershen Singh. But this fact was not stressed in the arguments either before the courts in India or before the
Privy Council. The case was argued on the basis that Rani being herself a proprietor of the estate could
execute the mortgage (this was the view taken by the Sudar Diwani Adalat), or that the mother being the de
facto manager of the estate could alienate properties for legal necessity or benefit of the estate. The Privy
Council, though at couple of places used the word ‘guardian’, dealt with the case on the basis that the Rani
being in actual management of the estate had power to alienate the properties for the benefit of the estate or for
legal necessity.
In Suraj Bansi Koer v. Sheo Prasad Singh,1 the Privy Council said:
Such an authority will be implied, at least in the case of minors, if it can be shown that the alienation was made by the
managing members of the family for legitimate purpose.
In Sahu Ram Chandra v. Bhup Singh,2 a joint family consisted of a father and his sons and grandson. Some
family properties were mortgaged for some necessary family purposes.
The Privy Council explained the general principle thus:
The general principle in regard to that matter is that he is at liberty to affect or to dispose of the joint property in respect
of purposes denominating necessary purposes. The principle in regard to this is analogous to that of the power vested
in the head of religious endowment or mutt or of guardian of the infant. In all the cases where it can be established that
the estate under administration demanded or the family interest justified the expenditure, then those entitled to the
estate are bound by the transaction. It is not accurate to describe this as either inconsistent with or an exception to the
fundamental rule of the Mitakshara.
Thus we find that the power of the karta to alienate the joint family property for legal necessity comes to be
firmly established. It may, however, be noted that Lord Shaw did not consider this power as ‘an exception to the
fundamental rule of the Mitakshara’. Vijnaneshwara expressly treated this power as an exception to the general
rule. It has been an accepted proposition of Hindu law that the karta of the joint family has no power of
alienation over the joint family property except in certain exceptional cases. The Privy Council in Brij Narayan v.
Mangala Prasad,1 said that the managing member of a joint undivided estate cannot alienate or burden the
estate qua manager except for purposes of necessity. In Hauman Prasad also the Privy Council said, ‘the
power of the manager for an infant heir to charge an estate not his own is, under Hindu law, a limited and
qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate. All the three
expressions used by Vijnaneshwara indicated exceptional cases.
After the Privy Council judgment in Sadhu Ram the rule that if legal necessity is established consent of all
coparceners will be presumed has not been questioned, rather it has been treated to be an established rule.2
5. Benefit of Estate
Palaniappa Chetty v. Shreemath Devisikmony Pandrar Sannadhi,3 a case dealing with Mahant’s power of
Page 4 of 8
alienating property for benefit of estate but which has since been considered as an authority also for the power
of karta and guardian. Lord Atkinson reviewed some of the leading authorities4 on the subject and felt that no
indication was found in any one of them as to what is, in this connection, the precise nature of things to be
included under description of benefit of estate.5 Then, his Lordship observed:
It is impossible, their Lordships think, to give precise definition of it applicable to all cases, and they do not attempt to
do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the
protection of it or protection from injury as deterioration by inundation, these and such like things would obviously be
benefits. The difficulty is to draw the line as to what are, in this connection, to be taken as benefit and what not.6
Although Vijnaneshwara did not used expressions like ‘legal necessity’ or ‘benefit of estate’7 the trend of
judicial interpretation has been to give wide meaning to the expressions, apatkale, kutumbarthe and
dharmarthe used by him. Mr. Justice Patkar8 said that the explanation of the text of Brihaspati in the
Mitakshara is by no means an exhaustive one and may be treated as illustrative and could be interpreted with
due regard to the conditions of modern life.9
The Privy Council used two expressions in Hanuman Prasad,1 ‘need’ and ‘benefit of estate’, as being the cases
in which the guardian or manager can alienate the property. We find that in course of time Vijnaneshwara’s
expressions, apatkale, kutumbarthe and dharmarthe were converted into, ‘legal necessity’, ‘benefit of estate’
and ‘acts of indispensable duty’. Although these terms also have not been given precise definition, the term
‘legal necessity’ includes Vijananeshwara’s apatkale and a part of kutumbarthe the term ‘benefit of estate’
includes a part of kutumbarthe, and the term, ‘acts of indispensable duty’ covers almost all cases under
dharmarthe.
Broadly speaking the term, legal necessity, includes all those acts which are necessary for the members of the
family. ‘Necessity is not to be understood in the sense of what is absolutely indispensable but what according to
the notions of a Hindu family would be regarded as proper and reasonable.2 The actual compelling necessity is
not the sole test of the validity of an alienation made by the karta. If it is shown that the transaction was one
which was clearly beneficial in the interest of the family as a whole, the transaction is valid.3 The term is to be
interpreted with due regard to the conditions of modern life.4 In fact no precise definition of the term is possible,
but cases have well-established it.5
Following the observation of the Privy Council in Palaniappa6, the High Courts have taken two divergent views.
According to some, a character to protect the property from some imminent danger or destruction.7 According
to others, any transaction which is of positive benefit to the family, that a prudent owner would carry out in
respect to his own property can be done by the karta and would amount to the benefit of estate.8 The Bombay
High Court has taken an intermediate view.9 The modern view seems to be that a karta can like a prudent
manager do all those things which are in furtherance of the family’s advancement or to prevent probable losses
and which are not purely of a speculative or visionary character; at the same time he cannot just convert family
property into money because the property does not yield any income, without replacing the same with some
more advantageous properties.1 If we are to take a purely negative view of the benefit of estate and if manager
were confined to purely defensive acts there would be no progress, enterprises would be stifled and the family
would stagnate.2
An alienation for starting a new business cannot be justified for legal necessity or benefit of estate even if it
results in the increase of family income.3
6. Indispensable Duty
The term, indispensable duty, indicated the performance of those acts which are considered a religious or
pious. Vijnaneshwara in the Mitakshara gave one instance of dharmarthe, viz., obsequies of the father, and
added ‘or the like’. This expression would include all other indispensable duties, such as shradha,
upanayanama and performance of other necessary sanskar. Under Hindu law marriage is a necessary sanskar
and the performance of marriage of daughters and sons in the family would be an act of indispensable duty.
But, we have seen earlier, marriage of coparceners and daughters in the family is considered as a legal
necessity. The performance of religious duties would also be covered under the expression ‘indispensable
duty’. Debts incurred for the performance of indispensable duty and any alienation made for the payment of
such debt is also covered under the expression. Gifts for pious or religious purposes if made within reasonable
limits are valid.4 The Privy Council in Gangi Reddi v. Tammi Reddy,5 said that if property alienated for
allotment for the performance of an indispensable duty is small compared with the total means of the family,
Page 5 of 8
then alienation would be valid. The performance of the duty should be obligatory and not purely optional or
personal.6
7. Gifts of Love and Affection
The karta also has the power to transfer reasonable portions of immovable or movable property to a coparcener
or a female member of the joint family who is entitled to maintenance in part or full satisfaction of the claim of
maintenance of such a coparcener or female member.7
When father is the karta of the joint family, he can alienate joint family property for two additional purposes: he
can make gifts of affection and he can alienate the property for the satisfaction of his debts.8
The father’s power of making gifts of affection is distinct from karta’s of making similar gifts. The father’s power
exists only over movable property: such gifts may be made to the son, daughter, grand-children, wife or other
relations on appropriate occasions.1 They can be made only to a reasonable extent.
To sum up, the karta’s of the joint family can alienate the joint family property in the following cases:
(a) for legal necessity,

(b) for benefit of estate,
(c) for indispensable duty, and
(d) if the karta is the father: (i) for gifts of love and affection, and (ii) for the discharge of his personal debts.
In the above cases it is immaterial that one or some or all of the coparceners are minors. The karta is not the
guardian of minor coparceners, even though the undivided interest of the latter in the joint family property is
under his care and control. He can alienate entire joint family property, no one can question him: his authority
within the specified area cannot be curtailed, limited or deferred merely because there happens to be some
members of the family who are minors.
In sum, the powers of the karta over the joint family properties, including his powers over the coparcenary
interest of a minor coparcener have not been affected by the Act.2
8. Proviso: High Court’s Power of Appointment of Guardian of the Interest of Minor Coparcener
The proviso preserves the jurisdiction of the High Court in appointing guardian of minor coparcener’s interest in
the Hindu joint family. It does not confer any new jurisdiction. If prior to coming into force of the Act, a High
Court had no jurisdiction then by virtue of the proviso, it cannot have any jurisdiction.
Section 3 of the Guardians and Wards Act also preserves the jurisdiction of the High Court in respect of
minors—it is a general jurisdiction over children living or found within the jurisdiction of the High Court
irrespective of the fact whether the child is a coparcener or not.
We would discuss this matter in its totality in our commentary, on section 3 of the Guardians and Wards Act in
Part III of this work. Here we would give a bare summary.
Where all members of joint family are minor, the court can exercise the power of appointing a guardian of the
entire property of all the coparceners. However, as soon as any one of them attains majority, the order would
cease to exist. The minor member who has become major will become the karta and would take over the
management.1
It appears that in In re, Jairam,2 is the earliest case where the High Court exercised its power of appointing a
guardian of minor coparcener’s interest. In In re, Govind Prasad,3 the Allahabad High Court said it has inherent
jurisdiction to appoint a guardian in respect to the undivided interest of a minor coparcener though the court
added, it would exercise it sparingly.
Gangoji Rao v. H.K. Channappa,4 illustrated a situation where blending of ancient law with the modern law can
create confusion worst confounded. An HUF was reduced to two minor coparceners, an uncle and nephew and
mothers of both the minors. Obviously the respective mothers were the natural guardian of the minors. The two
mothers alienated some joint family property avowedly for legal necessity. This alienation was later on
challenged by the uncle and the nephew with the averment that their mothers had no authority to sell the
Page 6 of 8
property without prior permission of the court as required by section 8, the Hindu Minority and Guardianship
Act. On behalf of the uncle and nephew it was not stated that property was joint family property. This was left to
alienee who in his defence averred that the senior widow as manager of the joint family property alienated the
property in that capacity and question of permission of the court did not arise. The argument was based on the
words in parenthesis of section 6 and this section, the court observed:
Thus, reading the above section carefully, it becomes clear that this section excludes the undivided interest of the
minor-his or her undivided interest in the joint family property. The legislature in its wisdom has used the words ‘his or
her undivided interest’. If the words, ‘joint family’ were used in the sense of coparcenary as used in the common
(Hindu) law, it is obvious that there would be no share of a female in the Hindu coparcenary because a female member
is not given any status in the coparcenary............... Since the Legislature has used ‘his or her undivided interest in the
joint family property and excludes it from the purview of section 6 of the Act, it becomes clear that the term ‘joint family
property’ is used in its wider sense including the shares of those female members who have a share in the joint family
property, e.g., the mother’s share, the daughter’s share etc.5
Then on section 12, the court said:
................in this section, the Legislature has, in its wisdom, stated ‘the property is under the management of an adult
member of the family’ and not ‘an adult male member of the coparcenary’, implying thereby that in the joint family, in
the wider sense in which it is used under the Act, a female adult member can also become the manager of the family
and, in that case, the court is not competent to appoint a guardian. In fact this is different from the common (Hindu) law
concept in a coparcenary.
(emphasis author’s)
Thus we find that a new type of Hindu joint family was envisaged by the court. The court proceeded on the
assumption that a woman can be the karta and on that assumption it said:
Since, as explained above, the joint family property used under the Act is wider in its connotation, than the restricted
sense in which it is used in the term ‘coparcenary’ under the Common Law (sic), it becomes obvious especially in view
of what is contained in section 12 of the Act that the mother who is the natural guardian of the person, can also
become the manager in the case of the properties of her minor sons under the Act and, in that case, she can alienate
the properties of the minors for legal necessity and for the benefit of the estate as a manager or ‘Karta’ of a Hindu
coparcenary can do.
(emphasis author’s)
In the result alienation was held valid and uncle and nephew’s suit was dismissed. It was ignored that no
female can be karta.1 Explaining the rationale behind excluding undivided interest from the purview of natural
guardian Sampath says that for any appointment in relation to the undivided interest of the minor militates
against the authority of a karta. An explanation is needed with respect to the words used in the parenthesis,
namely, ‘excluding his or her undivided interest in joint family property’. The expression ‘her interest’ would be
meaningless in the context of the traditional Hindu law. But it is necessary modification required under the
Hindu Succession Act. We are aware that this Act confers, among other things, the right to inherit the
coparcenary interest on some of the female heirs. For instance, a daughter or a son’s daughter and others may
inherit the coparcenary interest of the deceased coparcener and therefore, the expression in the parenthesis
takes care of such a situation also. Now coming to section 12, the legislature has used the expression “where a
minor has an undivided interest in the joint family property and the property is under the management of an
adult member of the family” just to indicate the reason why a guardian need not be appointed with respect to
the undivided interest. However, the judge has read too much into this expression ‘adult member’ by including a
female adult member also. It is submitted that such a construction is not compatible with the basic principles of
Hindu law. Indeed when the Act uses the expression ‘adult member’ it necessarily means adult male member.
In our submission this is the correct formulation.2

Page 7 of 8
1 Sir Dinshaw Mulla sitting on the Judicial Committee of the Privy Council in Banares Bank Ltd. v. Harinarayan, ILR
(1932) 54 All 564, felt that Hunoomanpersaud, (1856) 6 MIA 393 was decided on the basis of these texts (though the
texts were not quoted). See also Budh Karna Chaukhani v. Thakur Prasad Shan, ILR (1941) 2 Cal 40 .
1 Mitakshara, Chapter I, section 1, verse 27, Radha Vinod Pal, J., thinks that this text lays down the power of the father
as co-owner and as the managing co-owner. However, the established interpretation (as given by the courts) is that
they deal with the power of the karta and by analogy of the natural guardian. Budh Karan v. Thakur Prasad, ILR (1941)
2 Cal 38 (40).
2 Mitakshara, I, 1, 28. Pratt and Mitra, JJ., in Mudit Narayan v. Ranglal Singh, ILR (1902) 29 Cal 797 felt that this verse
deals with the power of alienation of the young members of the family.
3 Mitakshara, I, 1 and 29.
4 Mitakshara, I, 1 and 30.
5 (1856) 6 MIA 393.
1 ILR (1879) 5 Cal 148 (165).
2 ILR (1917) 39 All 437 .
1 ILR (1923) 46 All 95 .
2 See Chhotiram v. Narayanadas, ILR (1887) 11 Bom 605 ; Miller v. Raghunath, ILR (1986) 12 Cal 389 ; Mudit v. Rangal,
ILR (1902) 29 Cal 797 ; Paratap v. Sham Lal, ILR (1920) 42 All 264 ; Karam Chand v. Ram Labhaya, ILR (1926) 2 Lah
476 .
3 ILR (1917) 40 Mad 709 .
4 Hanoomanpersaud, (1856) 6 MIA 393; Prosunno Kumar v. Golab Chandra, (1875) 2 IA 145; Koonwar Doorganath v.
Ram Chandra, ILR (1976) 2 Cal 341 .
5 ILR (1917) 40 Mad 709 (714).
6 ILR (1917) 40 Mad 709 (718).
7 Mitakshara, Chapter I, section 1.
8 Ragho v. Jaga, ILR 53 Bom 419.
9 This view was followed in Nagindas v. Mohammed, ILR (1922) 46 Bom 312 ; Govind Gurunat v. Deekappa, AIR 1938
Bom 388 ; Bhaolal v. Baboolal, ILR (1941) All 343.
1 (1856) 6 MIA 393.
2 See Mayne, Hindu Law and Usage 11th Edn., 464. See also Hanuman Prasad v. Mst. Bobooee, (1856) 6 MIA 393;
Masit Ullah v. Damodar Prasad, ILR (1926) 48 All 518 ; Shri Krihsnadas v. Nathuram, ILR (1926) 49; Ram Sundar Lal
v. Lachmi Narayan, ILR (1928) 51 All 430 .
3 Ram Vilas v. Ramyand, (1970) 5 PLJ 62.
4 Nagindas v. Mahommed, (1922) 46 Bom 312.
5 For the case law see Paras Diwan, Modern Hindu Law 7th Edn., 279.
6 Palaniappa Chetty v. Shreemath Devisikmony Pandrar Sannadhi, ILR (1917) 40 Mad 709 .
7 Inspector Singh v. Kharak Singh ILR (1928) 50 All 776 . These cases seem to be overruled by Jagat Narayan v.
Mathuradas, ILR (1928) 50 All 969, where a contrary view was taken. Vishnu v. Ramchandra, (1923) 25 Bom LR 508
[LNIND 1923 BOM 104]; Doraisami v. Venkatrama, (1921) 13 MLW 618; Natraja v. Lakshmana, AIR 1937 Mad 195
[LNIND 1936 MAD 139].
8 Jagat Narayan v. Mathuradas, ILR (1928) 50 All 969 ; Ramnath v. Charanjilal, ILR (1935) 57 All 605 (FB); Amrej Singh
v. Shambhu Singh, ILR (1933) 55 All I (FB); Ralla Ram v. Godharandas, AIR 1930 Lah 679 ; Hayat Ali v. Nem
Chandra, AIR 1945 Lah 169 (FB); Sellappoo v. Subhan, ILR (1937) Mad 906; In the matter of A.T. Vasudevan, AIR
1949 Mad 260 ; Shaikjan v. Bikoo, ILR (1928) 7 Pat 798 ; Jiwanandan v. Sia, AIR 1961 Pat 377 ; Nirmal v. Satnam, AIR
1960 Raj 313 ; D. Sadashiva v. B. Rattain, AIR 1958 AP 145 .
9 Hemraj v. Nathu, ILR (1935) 59 Bom 525 (FB).
1 Sengoda v. Mathuvellappa, AIR 1955 Mad 531 [LNIND 1955 MAD 36]; Nirmal v. Satnam, AIR 1960 Raj 313 .
Page 8 of 8
2 See Ramnath v. Charanjit Lal, AIR 1935 All 221 (FB); Medikenduri v. Kata, AIR 1953 Mad 210 [LNIND 1952 MAD
107].
3 Eenares Bank v. Hari Narayan, AIR 1932 PC 182 .
4 Kalu v. Barsu, ILR (1895) 19 Bom 803 ; Ramalinga v. Sivachindambra, ILR (1942) 42 Mad 440 ; Audyappa v.
Muthulaxmi, AIR 1925 Mad 1281 .
5 AIR 1927 Mad 421 [LNIND 1926 MAD 340].
6 Mukherjea, Religious and Charitable Trusts 90; A manager may alienate for optional as well as obligatory religious
purposes. This statement is subject to qualifications. Every Dharmika act may not be an act of indispensable duty.
Ratnam v. Sivasubramanyan, ILR (1893) 16 Mad 353 . Such an alienation cannot be made by Will; Latta Prasad v. Shri
Mahadeoji, ILR (1920) 42 All 461 ; Jawaharlal v. Thakur Radha Gopal, ILR (1945) All 177; Darshan Singh v. Prabhu
Singh, ILR (1946) All 130; Amar Chandra v. Sardamayee, ILR (1930) 57 Cal 39 .
7 Ramayya v. Kolanda, AIR 1939 Mad 911 [LNIND 1939 MAD 198]; Ram v. Govind, ILR (1926) 5 Pat 646 .
8 For details, see Paras Diwan, Modern Hindu Law, 277 292-98.
1 The Mitakshara I, i, 25 Ramalinga v. Narayana, ILR (1922) 45 Mad 489 (PC); Vettor Ammal v. Poochle, ILR (1899) 22
Mad 113 ; Krishnan v. Lakshmi, AIR 1950 TC 73 ; But the father cannot make a gift on the ground that the daughter
was looking after him in his old age; Jannappa v. Chimmaya, ILR (1935) 59 Bom 459 . Gifts of immovable property
cannot be made; Jinnappa v. Chimmaya (cited above) Sivagana v. Udyar, AIR 1961 Mad 356 ; Palwanna v. Annamalai,
AIR 1957 Mad 330 [LNIND 1956 MAD 184].
2 V. Reddy v. Amara, (1971) MLJ 466; Ramlochan v. M. Sethani, AIR 1960 Pat 271 ; Nathu Mishra v. Mahesh Mishra,
AIR 1963 Pat 146 .
1 Dinanath v. Chandrabhagabai, AIR 1958 Mys 92 .
2 ILR (1802) 16 Bom 634 .
3 AIR 1928 All 709 .
5 This formulation is drawn from Girdhan Singh v. Anand Singh, AIR 1982 SC 229 .
1 C.I.T. v. Seth Govind Ram Sugar Mills, AIR 1960 SC 24 .
2 Survey of Indian Law (1983) Indian Law Institute 314-315.
End of Document
5th ed
Paras Diwan

(32 of 1956)
[25th August, 1956]
13. Welfare of minor to be paramount consideration.—
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of
the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law
relating to guardianship in marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
Comments
1. Scope
In our submission, the most important section of the Act is this section. It gives such a wide power that the
courts have power to override all other provisions of the Hindu Minority and Guardianship Act as well as of the
Guardians and Wards Act. Only criterion for the exercise of the power is the welfare of a child. Unlike the
English statutes1 which uses the words “first and paramount consideration” the present section uses the words
“the welfare of the minor shall be the paramount consideration”. The omission of the word “first” would indicate
that under our law the welfare of the minor is the sole consideration, it is not the “first” consideration, but the
consideration.
Since the Hindu Minority and Guardianship Act is supplemental to the Guardians and Wards Act, as regards
the Hindu children, the courts by virtue of the power conferred by this can override all the provisions of the
Guardians and Wards Act. In fact, the present Act has no provisions for the appointment or declaration of
guardians. The provisions are made in the Guardians and Wards Act.
Sub-section (1) makes welfare of the minor as paramount consideration in the appointment or declaration of
any person as guardian. On the face of it, it would appear that welfare of the minor would be the paramount
consideration only in the matter of appointment and declaration of the guardian. In our submission, this would
be a narrow construction of the section though literally it may not be incorrect. The fact of the matter is that now
Page 2 of 34
not merely in India but in most of the countries all over the world, the welfare of the child is the paramount
consideration—and this is so even in juvenile delinquencies.
This provision clearly indicates, what has been submitted earlier, that today law of guardianship is not looked
upon as a right or power, but as responsibility—responsibility of the parent and guardians towards children,
towards their total upbringing so that the child grows into adulthood as a responsible citizen. What this section
signifies is, if we may use that word. The sanctity of the right of, or responsibility towards, children. Today the
parental rights are not sacred; they are not sacrosanct. It is the child’s welfare which is sacrosanct; it is to the
welfare of the child that has sanctity attached to it.
As a corollary to the paramountcy of the welfare principle enacted in sub-section (1), sub-section (2) say that no
person is entitled to guardianship by virtue of the provisions of this statute or any other law if it is not for the
welfare of the child. Thus all guardians, natural, testamentary, certificated or marriage guardians, are subject to
the principle of paramountcy of the welfare of children.
The provision of this section should be understood in the conspectus of section 19, the Guardians and Wards
Act which lays down that the father or husband cannot be displaced from the guardianship of the minor unless
they are found unfit. This section read with section 4 of the Hindu Minority and Guardianship Act clearly entitles
the court to ignore the provision of section 19 in the welfare of the child. Even otherwise, in cases coming under
the Guardians and Wards Act, following English precedents the courts have endeavoured to get over the
provision of section 19, in the interest of the child.
Here we would briefly review the development of welfare principle in English law and then would discuss the
case law coming under the Guardians and Wards Act as well as under the Hindu Minority and Guardianship
Act. As we would see, the judicial trend in India has been clearly in favour of the rule of paramountcy of welfare
principle and despite the fact that on our statute book we still have the statute of 1890 which has not been
amended. On the other hand in England it has been possible on account of successive statutory reforms. The
judicial trend has been clearly in favour of the rule of paramountcy of the welfare than the favour of parental
right.
2. Welfare of Children is First and Paramount Consideration: English Law
In the early English law, the paternal powers over the person and property of infant children were very wide and
sweeping. Then English law was wedded to the doctrine that the father as the natural guardian of his minor
children has absolute rights of custody and upbringing of his children. His rights of controlling the religious and
other education of his minor children were equally absolute. Guardianship was then looked more as a power, a
bundle of rights than responsibility or obligation.
The history of English law of guardianship is the history of transformation of the principle of parental supremacy
into the paramountcy of the principle of welfare of children.1
Before 1839 it was an established common law doctrine that the father has absolute rights over his children.
His rights of custody and upbringing were absolute. It was he who determined all questions relating to the
education and religion of his children. He had the right to control all acts and conduct of his children. He had the
right to inflict correction by personal or other chastisement in case the child disobeyed his orders. He had the
right to the services of his children. So long as the father was alive, the mother had no say, no rights, and no
powers.1
In King v. De Mannerville,2 the absolute right of the father was upheld. After the separation of parents, the child
was in the custody of the mother, from where the father removed it by force. On mother’s petition for a writ of
habeas corpus, the court said that the father has the legal right of the custody of his children, irrespective of
their age (in this case the child was at the breast of the mother), and he could be deprived of it only if he has
abused his right to the detriment of the child.
Again, in R. v. Henrietta Lavina Greenhill,3 the court said that the proper custody of a child is that of the father,
and whenever a father is deprived of it, the court would enforce it, unless such enforcement would be attended
by danger to the child, as where there is an apprehension of cruelty, or of contamination by some exhibition of
gross prolificacy.4
The Court of Chancery, exercising the king’s prerogative jurisdiction as parens patriae,5 was also reluctant to
interfere with the paternal right, and more or less took the same view as the common law courts did. Vice-
Page 3 of 34
Chancellor Bacon said: “This court, whatever be its authority or jurisdiction has, no right to interfere with the
sacred rights of the father over his children.”6
In De Mannerville v. De Mannerville,7 Lord Chancellor propounded the following thesis as to his jurisdiction to
interfere with paternal rights: the law imposed a duty on the parents, and in general gave them credit, ability
and inclination to execute it, but in a case where the father was unable or unwilling to discharge that duty or
was actively proceeding against it, of necessity, the state must place somewhere a superintending power over
children, who could not care for themselves and had not the benefit of that care. Under such circumstances,
Lord Chancellor Eldon said, the Court of Chancery has jurisdiction.
This thesis was further expounded in Lyons v. Blenkin,8 where infant children were living with an aunt, who had
provided considerable properties under trust for their education and maintenance. On the father’s application
for custody, the court said that if a father permits his children to be supplied with maintenance from a third
source, and allows to be brought up with expectation founded upon a particular species of maintenance and
education which he himself cannot afford to give them, he is not, according to the principles of Chancery Court,
at liberty to say that he would not allow them to continue that course. In ex parte Sikinner,1 father made an
allegations of cruelty against the mother. The court said that had these allegations been made against the child
it would have interfered. It was said that the court has power to control the rights of father to the possession of
the child, and appoint a proper person to watch over its morals and to see that it receives proper instructions.
Lord Redsdale, in Wellensely v. Wellensley,2 said that the father’s right to the custody of his children was not
disputed, but the question was whether the father, having that right, was at liberty to abuse that right? The
father was, as Lordship said, entrusted with the care of his children because he was supposed to be the best
person to execute the trust reposed in him. If the father abused that right, the court has power to intervene.
At common law mother has no rights in respect to her children, not even the right of custody or access. The
Chancery Courts also reiterated this position and ordinarily refused to interfere in favour of the mother. In
Takbat v. Earl of Shrewsbury,3 father appointed testamentary guardian of his children. The children were in the
custody of the mother. The guardian applied for custody. The Lord Chancellor said:
In point of law, she (mother) has no right to control the powers of testamentary guardian. It is proper that mothers of
children thus circumstanced should know that they have no right as such to intervene with testamentary guardians.
The custody was given to the mother, but the Lord Chancellor made it clear that the custody was given to her
not because she had any right, but in consequence of the power which the court has of controlling testamentary
guardians.
Father’s right to custody was considered so absolute, that even access was refused to mother. In Bell v. Bell,4
the Vice-Chancellor did not merely refuse to give custody to the mother, but he also refused to grant access.
However, it seems that where the father agreed to give access, the court could compel him to grant access.5
It was only in very exceptional circumstances that the father could be deprived of his rights.6 The father was
deprived of the custody on account of his gross misconduct,1 or for his serious unfitness.2 A girl below the age
of sixteen and a boy below the age of fourteen has no right or discretion to consent to leave the custody of her
or his father.3
After the decision in R. v. Greenhill,4 there was a public feeling that something was necessary to be done to
give some protection to the feelings—if not the right—of the mother and that to deprive the children of tender
years from any association of the mother was even injurious to the health and proper upbringing of children.
The result was that the Talford’s Act, 1839. The Act laid down that the mother is entitled to be given custody of
her children up to the age of seven years.5 She was also given access to her children. But a mother who is
guilty of adultery could neither be given custody nor access.
Turner, V.C. in In re, Halliday’s Estate6 said that the Act did not interfere with the right of the father, but
introduced a new element for consideration under which the right was to be exercised. According to the learned
Vice-Chancellor the Act proceeded on three grounds: first, it assumed and proceeded upon the basis of the
existence of paternal right; secondly, it connected the paternal right with marital duty and imposed the martial
duty as the condition of recognizing the paternal right, and thirdly, the Act considers the interest of the child. In
this case, after the separation of parents, the child was living with the mother. One day the father secretly
removed the child from the custody of the mother. On mother’s application for custody, the court said that if
Page 4 of 34
custody was left with the father and access was given to the mother, the mother’s statutory right could be
maintained consistently with the father’s common law right of custody.
In ex parte, Finn7 Vice-Chancellor, Sir Knight Bruce observed that before the court exercised jurisdiction it must
be satisfied that the father has so conducted himself, or had shown himself to be a person of such description,
or had placed himself in such a position, as to render it not merely better for the children but essential to their
safety or to their welfare in some very important and serious respect, that his right should be treated as lost or
snapped and should be superseded or interfered with. The learned Judge said that if the word ‘essential’ was
too strong an expression, it was not much too strong.
Again, in In re, Curtis8 Vice-Chancellor Kindersley said that the Court of Chancery could not decide upon the
custody of infants simply with reference to what is for their benefit and could not interfere with the right of a
father, unless he so conducted himself as to render it essential to the safety and welfare of the children in some
serious and important respect, either physically, intellectually or morally, that they should be removed from his
custody.
In Warde v. Warde,1 Lord Cottenham, after saying that the object of the Act was to protect mothers from the
tyranny of their husbands who ill-used them observed:
Unfortunately as the law stood before, however, much a woman might have been injured, she was precluded from
seeking justice from her husband by the terror of that power which the law gave him of taking the children from her.
That was felt to be so great a hardship and injustice that Parliament thought, the mother ought to have protection of the
law with respect to her children up to certain age, and that she should be at liberty to assert her rights as a wife without
risk of an injury being done to her feelings as mother.
This observation was quoted with approval by Vice-Chancellor Sir W. Page in In re, Wimcom2 where the
parents had separated and the child was in the custody of the father, the court rejected mother’s application for
access on the ground that to subject the child to two influences, that of the father and mother, would not be in
the interest of the child.
A year after the Custody of Children Act, 1839, the Infant Felons Act, 1840, was passed. The Act empowered
the Court of Chancery to grant custody of a child convicted for felony to any person who desired it upon such
terms and under such regulations as it might think fit. However, such an order was not binding upon the father
or guardian and no person could use the custody or the child inconsistent with his right.3
These two statutes could not do much. The doctrine of absolute right of father remained intact. At Common Law
father’s right could be interfered with only if it was shown that the father had misconducted grossly. At Chancery
Court it could be interfered with only if the court considered it “essential” in the safety and welfare of the child in
some ‘very serious and important respect’.4 The Talford’s Act, 1839, just touched the fringes of the fortress of
paternal rights. The Court of Chancery tried to launch an offensive to penetrate the defences, but it did not
prove to be more than a probing operation.
Mother’s position was further worsened by the Statute 12, Car. 2 c. 245 which empowered the father to appoint
testamentary guardians to the exclusion of mother.6
In 1857, the Matrimonial Causes Act was passed.1 Again in 1859 another statute under the same title was
passed.2 The former statute provided for interim orders and the latter for permanent orders of custody,
maintenance and education of children.3
The Matrimonial Causes Acts conferred a very wide discretion and jurisdiction on the court in respect to
custody, maintenance and education of children, if the marriage of their parents was subject to any proceeding
under the Acts.4 In Thomasset v. Thomasset,5 Lindley, L.J., said:
............. in exercising such discretion the divorce court, which has all the powers of the Court of Chancery is not and
ought not to consider itself fettered by any supposed rule to the effect that it has no power to make orders under the
Acts respecting custody, maintenance and education of infants. This jurisdiction can be exercised over the whole
period of infancy.
Page 5 of 34
But despite the wide jurisdiction conferred on the Divorce Court, and despite clear elucidation by courts, the
position of the father and mother practically remained the same.
The first Judicature Act was passed in 1873. Section 25(10) of the Act provided that in questions relating to
custody and education of infants the rules of enquiry should prevail. It may be noted that the Court of Chancery
in habeas corpus proceedings has the same jurisdiction and the same powers as the common law courts,
though it exercised wider discretion and powers under its inherent jurisdiction under the king’s prerogative as
parens patriae.
In In re, Agar Ellis,6 Lord Esher, M.R., thought that the Judicature Acts have no effect on the habeas corpus
proceedings as in that respect there was no conflict between common law and equity: “The rules of equity are
not to prevail as there is nothing for them to prevail over.” Cotton, L.C., said that it is not the benefit to the infant
as conceived by the court but it must be the benefit to the infant having regard to the natural law which points
out that the father knows far better as a rule what is good for his children than a court of justice can. However,
this view was repudiated by the Master of Rolls himself later on. In R. v. Gyngall,7 the court took the view that
the rules that prevailed at equity could also be applied to in the habeas corpus proceedings.
Thus after 1873 a wider jurisdiction was exercised by all divisions of the High Court in the habeas corpus
proceedings. Lindley, L.J., said in Thomasset v. Thomasset.8
This enactment enables all divisions of the High Court, even on habeas corpus to regard something more than
the strict rights of the fathers and guardians, and require all divisions to recognize the cardinal principle on
which the Court of Chancery always proceeded, namely, that in dealing with infants the primary consideration is
their benefit.
The Custody of Infants Act was passed in 1873 which repealed the Talford’s Act, 1839. Under the Act the age
of the child upto which mother could be granted custody was increased to sixteen years. It was also laid down
that, in case custody was granted to the mother, orders as to access could be passed in favour of the father or
the guardian.1
However, the courts, apart from placing a little more emphasis on the welfare of children, continued to pay
tribute to the doctrine of absolute rights of father.
In In re, Goldsmith2 the court was compelled to deny custody to the father because of gross misconduct of the
father.3 Seven years after, the court got an opportunity in In re, Agar Ellis4 to reiterate and eulogize the
doctrine of sacred paternal rights. Bowen, L.J., said that to neglect the natural jurisdiction of the father over
children until the age of twenty-one would really be to set aside the whole course and order of the nature; only
when it becomes obvious that the rights of the family are abused to the detriment of children, the father no
longer remains a natural guardian, he becomes an unnatural guardian, but until that happens mere
disagreement with the views taken by the father of his right and interests of his children could not justify court’s
interference. If it were not so, the learned Lord Justice said, the court might be interfering all day and with every
family. Cotton, L.J., also reiterated the old principle by saying that the court has jurisdiction to interfere with
father’s rights only in exceptional cases, such as immorality or cruelty of the father.5
The Custody of Infants Act, 1873, also removed the bar to any petition made by an adulterous mother. It was
also laid down that no agreement contained in any separation deed made between the parents should be held
invalid by reason only of its providing that the father would give up custody or control of any child to the mother.
It was further provided that no such agreement should be enforced if it was found to be not for the benefit of the
infant. This proviso was used in In re, Besant6 to deny custody to a mother who was found to hold atheistical
views and who prevented the children from getting any religious education.
Thus we find that the Act of 1873 also could not impinge the citadel of paternal rights.
The Guardianship of Infants Act was passed in 1886. In 1889, the Prevention of Cruelty to and Protection of
Children Act, was passed, which was later replaced by the Children and Young Persons Acts, 1932-33. The
Poor Laws Act was further modified.1 The Guardianship of Infants Act, 1886, introduced the following changes
in the law:
(a) the mother is recognized as a guardian of her children, after the death of the father;2
Page 6 of 34
(b) mother is empowered to appoint a guardian by her Will;3

(c) she is granted equal rights of custody and access with the father;4 and
(d) the court is empowered to appoint or remove guardian in certain circumstances.5
It is evident even from the cursory perusal of the provisions of the Act6 that it purported to effect far reaching
changes in the law. But it seems that for quite some time the old doctrine continued to have its sway, and the
citadel of paternal right appeared to be invincible.
Quoting the observation of Knight Bruce, V.C. in In re, Finn7 with approval of Lord Esher, M.R., said in R. v.
Gyngall.8
..........the court must exercise the jurisdiction with great care, and can only act when it is shown that either the control
of the parent, or the description of person he is, or the position in which he is placed, is such as to render not merely
better, but—I will not say essential—clearly right for the welfare of the child in some very important respect that the
parent’s right should be superseded.9
Thus we find that shift is merely from ‘essential to their safety’ to ‘clearly right for the welfare’ of the child.
Although the statute used the words ‘having regard to the welfare of the infant’, the courts still hesitated to say
that the welfare of children was the paramount consideration.
At the turn of the nineteenth century came an important judgment from Ireland. In In re, O’Hara,10 the Irish
court thus summarised the position:
Prior to the Judicature Act a parent was held at Common Law to have, as against strangers, an absolute right to the
custody of his child of tender years unless he had forfeited it by misconduct. But the Court of Chancery,11 from time
immemorial, has exercised another and distinguishable jurisdiction—a jurisdiction resting on parental authority of the
Crown—by virtue of which it can supersede the natural guardianship of a parent and can place a child in such custody
as seems most calculated to promote its welfare.
His Lordship said that the period during which a child has been in the custody of stranger is always an
important element in considering what is best for the care of a child’s welfare. For instance, if a boy has been
brought up from its infancy by a person who has won his love and confidence, who is training him to earn his
livelihood, and separation from whom would break up all the association of his life, no court ought to sanction in
his case a charge of custody. The learned Judge said, “the welfare of a child” means ‘welfare in its widest
sense.’
In 1891, the Custody of Children Act was passed. It empowered the court to refuse custody to a parent who has
deserted or abandoned the child.1
First bold departure from the traditional view came in In re, Mcgrath,2 where Lindley, L.J., observed:
The dominant matter for consideration of the court is the welfare of the child. But the welfare of the child is not to be
measured by money only, nor by physical comforts only. The moral and religious welfare of the child must be
considered as well as its physical well being. Nor can the ties of affection be disregarded.
Since then this passage has become a loco classic.
Lindley, L.J., made it further clear in In re, A and B:3
I do not say that it has much, if at all, diminished the right of the father except as regards mothers; but to say that
section 5 is to have no operation unless the father has so conducted himself towards his children as to justify in
depriving him of his children, is to reduce the statute to nullity.4
The outer defences of the citadel of paternal right were thus impinged. In 1852 the court said that the first
consideration was the existence of paternal right.5 In 1897 the court said that consideration of the welfare of the
child was also an important consideration.6
It seems that by this time welfare of the child becomes at least as important as paternal right.
Page 7 of 34
Then came a frontal assault on the citadel: Parliament passed the Guardianship of Infants Act, 1925.
With a view to applying the principle of equality of sexes1 to the guardianship and custody of children the
Guardianship of Infants Act, 1925, was passed.2
Section 1 of the Act (now section 1 of the Guardianship of Minors Act, 1971) runs as under:
Where in any proceedings before any court (whether or not a court within the meaning of the guardianship of Infants
Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for
an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the
welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any
other point of view the claim of the father, or any right at Common Law possessed by the father, in respect of such
custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior
to that of the father.
Section 2 of the Act (now section 2 of the Guardianship of Minors Act, 1971) runs:
The mother of an infant shall have the like powers to apply to the court in respect of any matter affecting the infant as
are possessed by the father.
The Guardianship of Infants Act, 1886, section 3, empowered the mother to appoint a guardian by her Will, but
that appointment needed confirmation by the court and the court would confirm it only if it was shown that the
father was unfit to be the sole guardian of his children. That section has been repealed by section 5 of the Act
(now section 4 of the Act of 1971) and in appointment of testamentary guardians, the mother and father have
given equal powers: each parent can now appoint a guardian, and such guardian will act as joint guardian with
the surviving parent unless the surviving parent objected on an objection by the surviving parent, the court
would decide the question on the basis of welfare of children. Further, after the death of the surviving parent,
the guardians appointed by both the parents would act as joint guardian. If joint guardians are unable to agree
on any question relating to children anyone of them may apply to the court for its direction and the court may
pass such order as it may deem fit.3 Section 79 of the Children and Young Persons Act, 1932, (which has been
given retrospective operation from the date of coming into force of the Guardianship of Infants Act, 1925)
provides that where one of the joint guardians is the mother or father of an infant, the order may deal with the
custody of, or right to access to, the infant to its mother or father, as the case may be.
Section 4(2A) of the Act provides that where an infant has no parents, no guardian of the person and no other
person having parental right with respect to him, the court, on the application of any person, may, if it thinks fit,
appoint the applicant to be guardian of the infant.1
The Act does not say that the mother is a co-guardian or joint-guardian with the father during his life time,
though after her death the father is the joint guardian with the guardian appointed by her. The father continues
to be the natural guardian of his children.
The plain meaning of section 1 of the Act is that in the matter of custody, etc., (the matters are fully enumerated
in the Act) both the parents are placed on equal footing, and in determining all questions relating to any matter,
including custody, the paramount consideration is the welfare of children. In the interpretation of this section two
trends in judicial opinion are discernible. First, the Act of 1925 does not change the old law in respect to the
right of the father. Secondly, the old law stands changed in all matters relating to children, such as custody,
upbringing, etc., the paramount consideration being the welfare of children.
The Chancery Division in the earliest case2 after the Act quoted the oft quoted passage from the judgment of
Fitz Gibbon, L.J., in In re, O’Hara.3 Lord Hausworth said:
The welfare of the child is no doubt the first and paramount consideration, but it is one amongst several other
considerations the most important of which, it seems to me, is that the child should have opportunity of winning the
affection of its parent and be brought for that purpose into intimate relation with the parent.
Page 8 of 34
In this case after the death of the mother the father handed over the child to one Mrs. Jones and remarried. On
failing to get a child from his second wife, the father wanted the child back. Mr. and Mrs. Jones, being very fond
of the child, declined to hand it back. On father’s application, the court granted him custody.
A similar question came in that year before the Divorce Division in W. v. W.4 A wife obtained a decree for
restitution of conjugal rights, and on the husband’s failure to comply with it, applied for custody of the child of
the marriage, aged five years. The child was living with paternal grand-parents with whom parents were living
earlier. On the wife’s plea that delinquent party was not entitled to custody, the court said: “The matters of
immediate consideration are the comfort, health, and the moral, intellectual and spiritual benefit of the child.”
The court held that the child should remain where it was. Access was granted to the mother.
In the former case the child was taken away from a third person at the instance of the father, while in the latter
case the child was not removed from the custody of the third person, despite the fact that the mother desired it.
Then came In re, Caroll1 before the King’s Bench Division. The simplified facts of the case are: One Caroll, a
Roman Catholic by faith, had a two year old illegitimate child. She applied to a Protestant Society to help her in
making arrangement for the adoption of the child. The society was able to find out some respectable person
who was willing to take the child in adoption. Consequently, the child, with the consent of the mother, was
placed in the custody of that person. The mother changed her mind and wanted the child back. In the
background was a Roman Catholic Society which was willing to keep the child in its Home for Children. Lord
Heward, C.J., in the Kings Bench Division said that there seems to have been between these few years,
1891—1925, a certain development of thought in the matter of custody of children, viz., it is not the wish of the
parent which is paramount consideration, but the welfare of the child.
When the case went to the Court of Appeal, the majority felt that there was no such change of thought. In a
very elaborate judgment, Slesser, L.J., said that there was nothing either in the statute of 1891 or of 1925,
which went to modify the considerations of immemorial right of parent by nature and nurture. His Lordship said
that the Guardianship of Infants Act, 1925, dealt with the respective rights of the father and the mother.
Scrutton, L.J., in another equally elaborate judgment expressed the same view and said that notwithstanding
section 1 of the Act of 1925, the court in deciding questions of custody and upbringing of children, especially in
case the child was too young to have any view of its own, cannot disregard the desire of the parent, unless the
parent has so neglected his or her duty as no longer deserving consideration.
On the other hand, Greer, L.J., in his dissenting judgment, said that the welfare of the child is the paramount
consideration. The carrying out of the wishes of the mother would, the learned Lord Justice felt, means that the
child would be kept in an institution and not in a private home; and bringing up the child in a home is certainly
much better than in an institution, howsoever good an institution might be. Commenting upon the observation of
Chief Justice Lord Heward, his Lordship observed:
In my opinion all that the judgment intended to convey was that actually the attitude of public opinion and the courts
towards the powers of a parent over his children has become modified, and that now-a-days less importance is
attached to the right of, and the wishes of, the parent, and more importance is attached to the welfare of the child, and
the Act of 1925 was pointed out as an illustration of the modification in one instance of what at common law were the
strict rights of the male parent.
The majority gave preference to the wishes of the parent over the welfare of the child.2 The reason was that it
felt that the Act dealt with the rights of parents inter se and not vis-a-vis third persons. In the former case alone
the welfare principle applied. Slesser, L.J., said, ‘This statute, however, in my view, has confined itself to
questions as between the right of the father and mother.’ The implication is that in all other cases parental right
Will still have precedence even over the welfare of the child. That seems to be the limitation of the Act.
We pass on to the other trend.
In Ward v. Laverty,1 Viscount Cave said that the rule that a child is to be brought up in the religion in which his
father desired him to be brought up is subject to the welfare of the child. Again, in In re, B’s Settlement2 the
Chancery Division said that what might have been the position before 1925, under section 1 of the
Guardianship of Infants Act, 1925, the court was bound to consider the welfare of the child as the first and
paramount consideration.
Page 9 of 34
Wrottesley and Evershed, L.J., in Allen v. Allen,3 expressly differed from the view taken by the trial judge that a
mother who had committed adultery is not entitled to custody of her children.
Wrottesley, L.J., said:
The welfare of the child, both moral and physical, was the paramount consideration. It was impossible to say, because
a woman once committed adultery she was not a fit person, vis-a-vis, who has not to look after a child. There was no
suggestion that mother was promiscuous, or bad mother, or bad housekeeper, or anything which made it undesirable
for her to look after the child.
Allen v. Allen,3 was followed in Willoughby v. Willoughby,4 and Wakeham v. Wakeham,5 A mother who was
responsible for breaking up the marriage was also given custody in F. v. F.6
It may, however, be noted that in all these cases adjudication was between parents.
In In re, Collins7 after the death of his parent a child was living with his maternal grandparents who were
Protestants. Paternal grandparents who were Catholics applied for custody. The father of the child was a
Roman Catholic and the mother was a Protestant. The child was baptized as Roman Catholic. Evershed, M.R.,
said that historically a father was treated as having absolute rights, which the law was bound to recognize and
enforce, unless he had forfeited his rights by his misconduct. One such right was to dictate the religion of the
child. And that rule—rule of paternal supremacy—persisted till 1925, though it might be that between this period
there was possibly some change in feeling in regard to it. The social philosophy of the times also changed
somewhat which resulted in the passing of the Guardianship of Infants Act, 1925. Under the Act, the Master of
Rolls said, the paramountcy of welfare of children is recognised. On counsel arguing that the Act is confined to
issues between parents, his Lordship said:
That brings me back, therefore, to the point: Is section 1 of the Act of 1925 confined strictly to a case when the issue is
between father and mother both living or does it apply where the father or the mother or both the father and the mother
are dead? In my view it is impossible to put that limitation on the intention of the words used by Parliament.
Lord Simonds uttered a note of caution by saying that too much stress should not be laid on the provisions of
the Guardianship of Infants Act, 1925. Section 1 did not introduce any new principle of law but merely enacted
the rule which has long been acted upon in the Courts of Chancery. In our submission, historically it is correct
that the principle of welfare rule originated in the Court of Chancery, but, before 1925, it was rarely acted upon
as the Courts of Chancery felt fettered by doctrine of supremacy of paternal right.
In Mackee v. Mackee,1 we find that an attempt was made to mend the defences of citadel of paternal powers.
Sir Reymond Evershed, M.R., was called upon to meet this challenge in Wakeham v. Wakeham,2 and in In re,
A.3 and the challenge was well withstood.
In the former case, the father after obtaining a decree nisi in divorce proceedings asked for the custody of the
child who was with the mother in South Africa. The court granted custody to the father though left open the
question of care and control as the child was outside the jurisdiction. Sir Reymond said that welfare of children
was of paramount consideration:
................a matter which sometimes has to be considered is whether it is not right that the child should be brought up
to be aware of the fact, i.e., he had an elder brother and to have the advantage of brotherhood as well as of fatherhood
made available to him.
In the latter case the mother of an illegitimate child, about three years old, parted company with the natural
father, a married man, who was living separately from his wife. The mother, being very young, wished to make
a fresh start in life. With this view in mind, she placed the child in the care of a charitable society so that the
child may be given in adoption. The natural father, who had never denied paternity, was very much attached to
the child. He applied to the court under the Law Reforms (Miscellaneous Provisions) Act, 1949, for the child
being made ward of the court and for its custody or care and control be given to him.
It was not a case, as Sir Reymond said, where the mother wished to have the custody and upbringing of the
child, but a case where the mother insisted to exercise her right which she claimed to possess as a matter of
Page 10 of 34
law and of which she could not be deprived, even though she did not herself seek the company and custody of
the child, unless it was shown that she had forfeited her right on account of some misconduct on her part. It
was argued that the natural father of illegitimate child has no rights whatsoever.
Sir Reymond said that if the mother’s wishes of giving away the child in adoption were fulfilled, it would mean
‘abandonment and extinguishment for all practical purposes of all the natural rights towards the child’, and that
cannot be for the welfare of the child. In conclusion, the child was made a ward of the court and custody was
given to one Mr. and Mrs. A, brother and sister-in-law of the father.
It may, however, be noted that in In re, A.1 was a case under the inherent jurisdiction of Chancery Division.
Sir Reymond Evershed, M.R., who withstood the assault so well in Wakeham v. Wakeham,2 and in In re, A.,1
yielded in In re, G.,3 which was a case under the Guardianship of Infants Act, 1925. The mother of an
illegitimate child who was in the care of her putative father and who was well-looked after applied for its
custody. The mother was a white woman and the father was a coloured man. Glyn—Jones, J., refused to make
an order as he found that there was mutual attachment between the child and the father. The father then
applied to have the child made a ward of court and for himself to be appointed her guardian. The mother
applied for care and control. Wynn-Parry, J., said that he could not consider the mother as unsuitable and
passed an order in her favour. The learned Judge said, “I have decided to exercise my discretion by accepting
mother’s undertaking not at any time hereafter to have any contact with the putative father. I regard this as vital.
On that undertaking I direct that the infant be handed over to the mother. A direction was also issued that the
child thereupon should cease to be the ward of court. From the latter part of the order the father appealed. The
Court of Appeal unanimously upheld the original order.
In Court of Appeal there is no reference whatever to the welfare of the child and the case has been, it seems,
decided purely on the basis of the right of the mother of an illegitimate child.
Sir Reymond Evershed said:
............in the case of an illegitimate child the limit of the obligation of the father will be to make financial provision for it
in order to relieve other people, and particularly the general public, of such obligation. The only parent in that respect
which the law regards as responsible for the child is its mother.
The court seems to have taken the view that in proceedings which are not between the legal parents (and
putative father is not a father) the Guardianship of Infants Acts do not apply. That is also a view expressed in In
re, C.T. and F.T.1 where the question came for consideration directly. In this case the father of two illegitimate
children applied for their custody to the court of summary jurisdiction. Roxenburgh, J., after a very elaborate
discussion said that there was no compelling reason for departing from the accepted meaning of the words,
‘father’ and ‘mother’—that they mean de jure father and de jure mother and do not include de facto mother or
de facto father. The implication seems to be that not merely a de facto father cannot apply but a natural mother
also cannot apply under the Acts.
Thus In re, C.T.1 seems to fix the limits of the Guardianship of Infants Acts by laying down that the Acts are
applicable only in proceedings between de jure parents. The Legitimacy Act, 1959, section 3 has mitigated the
hardship caused by the decision In re, C.T.1 by laying down that the Guardianship of Infants Acts would also
apply to proceedings between de facto parents.
From the above survey of judicial trends and statutory modification the following two propositions emerge:
(a) The Guardianship of Infants Acts apply to proceedings between parents, legal as well as natural, and
therefore the fundamental principle applicable in deciding all matters relating to children is the welfare
of the children;
(b) The Guardianship of Infants Acts do not apply to proceedings between parents and the strangers or
between strangers, and, therefore, the fundamental principle applicable is the supremacy of paternal
right.
The second proposition is now no longer tenable after the judgment of the House of Lords in F. v. C.2
According to Macdermott, L.J., the present position is as under:
Page 11 of 34
(a) Section 1 of the Act of 1925 applies not only between parents, but between parents and strangers and
between strangers,
(b) in applying section 1, the rights and wishes of parents, whether unimpeachable or otherwise, must be
assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors
relevant to that issue,
(c) while there is now no rule of law that the rights and wishes of unimpeachable parent must prevail over
all other considerations, such rights and wishes, recognised as they are by nature and society, can be
capable of ministering to the total welfare of the child in a special way, and must therefore
preponderate in many cases; the parental rights, however, remain qualified and are not absolute, and
(d) a child’s future happiness and sense of security are always important factors and the effects of a
change of custody will often be worthy of the close and anxious attention.
In this case a boy was born in England of Spanish parents in 1958. On account of mother’s illness, he was
taken care of from the age of four days by English foster parents in their home. In February, 1960 when parents
returned to Spain they took the child with them but there his health suffered and, therefore he returned to
England to stay with his foster parents indefinitely. There were some legal proceedings between the foster
parents and the natural parents of the child in respect of its custody which did not make much headway. In
1967 some other proceedings were instituted and the parents claimed custody.
By this time the child was ten years old. His parents lived suitably and in no way were unfit persons to have
custody. At the same time the home of foster parents was a good home and it was a united family with which
the infant had become well-integrated. There was expert evidence that the chances of the child making
successful adjustment in Spain were slight and that if he did not, the consequences for his future emotional
stability and happiness were grave. The trial Judge in the welfare of the child, refused to grant care and control
to the parents. The view was upheld by the House of Lords. The House of Lords unanimously rejected the
contention on behalf of the parents that ‘united parents are prima facie entitled to custody of their infant children
and that the Court of Chancery as representing the Queen as parens patriae will only deprive them of the care
and control of their infant children if they are unfitted by character, conduct or position in life to have this
control’. As to the argument that section 1 of the Guardianship of Infants Act, 1925, applies only to proceedings
between parents and not to proceedings between parents and strangers, Macdermott, L.J., said that words in
section 1 are “in any proceedings” before the court and the word ‘any’ is a word with a very wide meaning, and
prima facie the use of it excludes limitation. Therefore, his Lordship said that the section applies not merely to
proceedings between parents but also to proceedings between parents and strangers and strangers and
strangers.
The Guardianship of Infants Acts now apply to proceedings between parents, legal as well as natural, between
parents and strangers and between strangers. The implication is that the welfare of the children is the
paramount consideration in all proceedings in respect to children, irrespective of the fact whether the question
is agitated by a parent or a stranger. In between re, C.T.1 and F v. C.2 there is a long line of adoption cases3
wherein expression to the supremacy of parental right is given.4 Most of the cases are based on a provision of
the Adoption Act which does not include putative father in the definition of ‘parent’.
It has to be noted in guardianship cases much depends on the discretion of the judge and the judge exercises
his discretion in accordance with the facts of each case. It seems to be clear that by the end of the year 1969 it
is possible to generalize that English courts unhesitatingly give effect to the principle that the welfare of children
is the paramount consideration. Today generally the child is added as a party to the proceedings.
Reference may also be made to the observations of Danckwerts, L.J., in In re, Adoption Applications1 and a
couple of other judgments. His Lordship said:
But I would respectfully point out that there can only be one ‘first and paramount consideration’, and other
considerations must be subordinate to the consideration of the welfare of the child and can be effective only if it
coincide with the welfare of the child. Consequently, it cannot be correct to talk of the pre-eminent position of parents
or of their exclusive right to custody of children when the future of those children is being considered by the court.
Again in In re, O.2 the court observed:

Page 12 of 34
His fatherhood is a ground to which regard should be paid in seeing what is best in the interest of the child, but it is not
an overriding consideration.
It is submitted that one would easily agree that fatherhood and motherhood are important consideration in
finding out the welfare of the child those factors can also be disregarded. And this was precisely what the court
said in In re, F.3 In this case father of the child was convicted of manslaughter of mother. After the death of the
mother the child was entrusted in the custody of a young couple. After father’s conviction the couple started
adoption proceedings. Father was opposed to adoption. The court said that father’s refusal to adoption could
not in any event outweigh the consideration which made it imperative for the child to be removed from the
influence of the father and his family. Disregarding the wishes of father, the court passed the adoption order.
Lastly, reference may be made to the decision of the House of Lords in In re, K.4 and to an observation of
Harman, L.J., in In re, C. (M.A.).5 Before the House of Lords the question was whether the parent has a right to
disclosure of confidential report made to the judge by the guardian ad litem which formed the basis of court’s
judgment? Lord Evershed said that in a conflict between the right of parent to disclosure and the welfare of the
children, the right of parents must yield to the welfare of the children. His Lordship observed:
The interest of the infant is the paramount interest and purpose of the jurisdiction.
In In re, C. (M.A.),1 Harman, L.J., observed that now whether the proceedings in respect of children are
considered under the Guardianship of Infants Acts,2 or the Adoption Acts or as ward of court proceedings, the
same considerations apply, viz., welfare of children is paramount consideration.
In the modern English law the significance of parental rights lies in this that the parent has power to take certain
actions in respect of a child, though the parental rights are now subject to paramount consideration of welfare of
the child. Still the parental rights are not less significant. So long as the court does not intervene, the parents
can still exercise their rights in accordance with their view of the matter. The extent of parental right and its
limitation is well-illustrated by Re, D (A Minor).3 Acting on medical advice, mother of a 11 years old disabled
female child arranged for her sterilization. She would have been able to carry out this irreversible action as she
had the support of the medical advice. But a social worker intervened on behalf of the child as he felt that the
child should not be denied the basic human right of a woman to reproduce. The court gave a finding that
sterilization of the child was not in her interest.
Thus we find that father’s supremacy was reduced in two ways: (a) the Court of Chancery acting as parens
patriae interfered to deprive him of his rights in certain circumstances, and (b) the statutes made the welfare of
children as the first and paramount consideration before which all parental rights were subordinated.
Then came the Guardianship of Minors Acts of 1971 and 1973. The far reaching significance of the Act of 1973
is that it made mother and father as equal and co-ordinate guardians.4 The Children Act, 1975 take the law a
step further by defining concepts like parental rights and duties, legal custody, and actual custody.5 The
process is carried forward by certain other statutes.6
The most significant aspect of the Guardianship of Minors Act, 1973 is this that it confers the same parental
right and authority on the mother as common law conferred on the father and to make those rights exercisable
by either parent without the concurrence of the other. Whenever parents disagree on a matter,4 the court will
decide it on the basis of the welfare of the child.4 In 1964 this author has submitted that in our law both parents
should be made equal and coordinate guardians.7 But so far we have not done so.
Under the Guardianship of Minors Acts, the court has power to make order for custody, access, education and
maintenance, but such orders can be made in favour of either parent.1 If a third person wants to have such
orders in his favour he will have to take recourse to the Children Act, 1975.2
The Indian statutory law still does not go beyond the state of law as contained in the Guardianship of Infants
Act, 1886. But our court by interpretation has brought the law fairly close to modern English law. We would
review this development in the subsequent pages.
3. Welfare of Children is the Paramount Consideration: Indian law
The Guardians and Wards Act was passed four years after the passing of the English statute, the Guardianship
of Infants Act, 1886. At that time, as we have seen, the English courts were torn between the principle of
Page 13 of 34
supremacy of paternal rights and paramountcy of the welfare principle. At that time English courts were
procrastinating between the two ideas: the paternal right being supreme cannot be interfered except for gross
misconduct, and the paramountcy of the welfare principle.
This conflict found its way in the Indian law and the Guardians and Wards Act gave it statutory recognition.
The principle of supremacy of paternal power is enacted in section 19 which provides that the court cannot
declare or appoint any person as guardian of the person of a minor whose father is living and is not in the
opinion of the court, unfit to be the guardian of the person of the minor. Similarly the husband who is natural
guardian of his minor wife cannot be replaced by a certificated guardian unless he is found unfit. The first part
of section 25 lays down that only a guardian can apply for custody. The latter part of the section lays down that
in determining the question of custody, the court would be guided by the welfare of the minor child. Sections 7
and 17 lay down that in appointing or declaring a person guardian of a minor child the court would take into
consideration, alongwith other factors, the welfare of child.
The plain meaning of section 19 is that unless the court finds the father unfit for guardianship, it cannot appoint
any other person as guardian. The combined effect of section 19 and section 25 is that guardianship and
custody are inseparable and only a guardian can apply custody. In this perspective the question of welfare is
relegated to the background. The Act also does not say anywhere that the welfare of the children is the
That these provisions gave rise to divergence in judicial opinion was natural, and that they gave rise to
confusion in legal thought was inevitable. Our judges swing between the letter of law as contained in these
provisions and the development of the principle in English law that welfare of children is a paramount
consideration.3 Our judges swung towards giving effect to the welfare principle, drawn back by the letter of law,
they gave effect to the supremacy of paternal right. And this swing continues, inclining more towards the rule
that the welfare of the children is the paramount consideration.
The contribution of the judiciary in endeavouring to develop law on progressive lines has been almost heroic,
but hurdles in their way have been many, and sometimes, almost unsurmountable. The judges in developing
law have gone very far.
The two main questions that arise in respect to the interpretation of the provision of section 19 are:
(i) Whether the father himself can apply for appointment or declaration as guardian.
(ii) Whether anyone else can be appointed as guardian if the father is not found unfit: Welfare being the
(a) Father’s Application and Appointment as Guardian
In Annie Beasant v. Narayaniah,1the Privy Council said that ‘no order declaring a guardian could by reason of
section 19, the Guardians and Wards Act, 1890, be made during the respondent’s life, (i.e., father’s), unless in
the opinion of the court he was unfit to be their guardian.’ This observation has been, in a great majority of
cases, also interpreted to mean that a father cannot apply for appointment or declaration of himself as guardian
under the Guardians and Wards Act, 1890.
The Madras High Court has expressed conflicting views.
In Satyanarayana v. Venkata Lakshmi,2 where the father applied for the appointment of himself as guardian,
the court held that he could not apply, though his application could be treated as one for custody under section
25. In Raghaviya v. Lakshmiah,3 Rao, J., said that the section was very badly drafted: if the father applied, this
section had no application. The learned Judge was of the opinion that section 19 recognized the preferential
right of the father and provided for its safeguard; the section was not intended to impose a disability on the
father, but purported to lay down that unless the father was found unfit no one else could be appointed
guardian, and therefore, to say that the father cannot apply is to defeat the very purpose of the section. Jackson
J., on the other hand, was of the opinion that under the section court has no authority to declare anyone,
including the father, as guardian of the person of the child unless the father was found unfit. The learned Judge
further said whether that was the intention of the legislature or whether a contrary intention had been defeated
by defective drafting was not the question for him to answer.
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Leach, C.J., Sivasankara v. Radhabai,4 without referring to Raghaviya v. Lakshmiah,3 and following his own
views in Venktaswaran v. Saradambal,5 said that a Hindu father could not apply under section 19 for
appointment of himself as guardian not merely of the person but also of the property of the minor children, as
he being already the legal guardian, such declaration was not going to increase his power.1 But in In re,
Shanmugan2the court said that it has power to declare the father as guardian. Further, the court said that
mother being the natural guardian of other illegitimate minor children, the question of her getting herself
appointed or declared as a guardian under the Guardians and Wards Act does not arise.3
The Allahabad High Court has consistently taken the view that the father being the natural and legal guardian of
his children, nothing will be gained by his appointment or declaration as guardian, and as such he cannot be
appointed or declared guardian.4Although his application for appointment of guardian may be treated as one
for custody under section 25, the Guardians and Wards Act.5 The Lahore6 and the Bombay7 High Courts are
in line with the Allahabad High Court.
The Calcutta High Court seems to have expressed conflicting view.
In In the matter of Joshi Assam8 the Court without any reference to section 19, appointed the father as
guardian. The same view was taken in Kamini Mayi Devi v. Bhushan Chandra Ghosh.9 The court said merely
because the father was the natural and legal guardian of his children he could not be prevented from applying
for his appointment as guardian. Such an appointment might confer higher rights on him than what he
possessed, in his capacity as natural guardian, and in dealing with outside world the certificate granted by the
court might confer greater importance on his powers than what he possessed as the natural guardian.10 The
fallacy of the argument is too apparent to need any comment. In Krishna Datta v. Shailendra Nath,11 the court
took a different view.
The Rangoon High Court also takes the view that the father cannot be appointed guardian.1 Leach, J. (as he
was then), in Venkateshwaram v. Sardamlal,2 reviewed all the leading authorities and expressly dissented from
the view taken in Raghaviya v. Lakshmiah,3 and in Kamini Mayi v. Bhushan Chandra,4 and followed the view
taken by the Allahabad High Court. The Oudh Chief Court too has taken the same view.5
In our submission the view expressed in the majority of cases is correct: a father being natural and legal
guardian, any declaration or appointment of him as guardian is not going to affect his position or enhance his
powers. With great respect to Suharwardy, J., of the Calcutta High Court, such appointment cannot confer any
higher rights on him than he already possesses. It may be emphasised that in many systems of law the natural
guardian possesses far greater powers than the guardian appointed by the court. Therefore, what he requires is
not further declaration or re-enforcement of his rights, but their enforcement. The court can assist him in
enforcing his rights by giving him custody. Thus, what the father has to do is to apply to the court for custody
under section 25 and if it is in the welfare of the child, the court would grant custody to the father.
(b) Fitness of the Father and Appointment of a Third Person as Guardian
The real and great difficulty that the courts have felt in applying the welfare principle to questions of
guardianship and custody coming before them is the provision of section 19. Before a court seized with the
question of appointing a guardian, the question is not of relative fitness of persons claiming guardianship, but of
the unfitness of the father which alone can entitle the court to appoint another person as guardian. The question
of custody also gets complicated in view of section 25 under which only a guardian can agitate the question of
custody. This interlinking, rather inter locking, of guardianship with custody has made the matters worst
confounded.
Under sections 7 and 17 while appointing guardian the court is required to take into consideration the welfare of
children. The question therefore, arises: Whether, sections 7 and 17 have to be given overriding effect over
section 19?
Explaining the significance of section 19, the Madras High Court in Audiappa v. Nalliendram,6 said that by
enacting that section the legislature advisedly drew distinction between the legal rights of the father and
husband on one side, and of others, on the other side: under the former it must be established that any act or
conduct of the father or husband rendered him unfit from guardianship before any person could be appointed
guardian, and the mere fact that the child might be happier or more comfortable with other relations is not
sufficient to deprive the father from guardianship.1 Similarly, in Kumaraswami v. Rajammal,2 Ayer, J., said:
Page 15 of 34
The guardianship of the father has been considered to be a sacred trust and a right which should not be taken away
from him unless he is proved to be utterly unfit. ..........a greater unfitness cannot be urged either by the mother or by
any other person in order to supersede the father as guardian of the person of his minor sons. To supersede him it
must be proved that the father is permanently unfit to be the guardian.3
The Allahabad,4 Lahore,5 and Rajasthan6 High Courts also take the same view.
The Nagpur High Court said that section 19 is not controlled by section 17, rather it overrides it. The court said
that opening words of section 19 make that interpretation plain.7 Similarly, the Madras High Court,8 said that
under section 17 welfare of the minor is of first and foremost consideration, but section 19 by way of rider
provides that it would be presumed, unless contrary is proved, that the welfare of the child rest with the father.9
Recently, the Madras High Court has reiterated this view.10 Alagiriswami, J., said that section 17 does not
override section 19. Only in the event of the father of the minor being unfit, the question of welfare of minor
arises. In other words, if the father is alive and is not unfit, there does not arise any question of guardian of the
minor being appointed.
In a few cases a contrary view has also been taken.
In Mst. Samiunnissa v. Mst. Saida Khatun,4 the court said:
A comparison of section 17 with section 19 of the Guardians and Wards Act shows that under section 19 certain
persons mentioned therein had to be appointed guardian unless, in the opinion of the court, they were unfit to be so
appointed. Section 17 to my mind, has to be read entirely differently from section 19 and it cannot be interpreted in the
sense that unless the guardian under the personal law is unfit to be appointed a guardian of the minor, the court is
bound to appoint him. To my mind, section 17 gives a much wider discretion to the court and whenever the court is of
the opinion, consistently, of course, with the law to which the minor is subject, that is for the welfare of the minor that a
certain person should be appointed guardian, the court can exercise its jurisdiction and appoint such person as
guardian.1
In our submission, whatever argument may be canvassed for mitigating the effect of section 19, the way it is
placed in the scheme of the Act, it is purported to have overriding effect.
The rigour of this provision has now been mitigated in respect of Hindu children by section 13 of the Hindu
Minority and Guardianship Act, 1956, which lays down that in appointment or declaration of a guardian the
welfare of the children is the paramount consideration and the court is not to take into consideration the
superior right of any person.2 This provision came for interpretation in Rattan Amol Singh v. Kamaljeet Kaur,3
Dua, J., said:
By virtue of section 2 of the Hindu Minority and Guardianship Act, 1956, we are obliged to read together and
harmonize the provisions of section 19 of the Guardians and Wards Act and of section 13 of the Hindu Minority and
Guardianship Act; construing them together, the rigour of the prohibition contained in clause (b) of section 19 of the
Guardians and Wards Act must be considered to have been relaxed to a great extent in the interest of the minor’s
welfare..........
However, the rigour of section 19(b) still remains in respect of non-Hindu children.
The courts have not felt so fettered in cases where the question has been of custody of children and they have
tried to apply welfare principle with some success. Thus, indirectly they have tried to mitigate the rigour of
section 19.
(c) Paternal Rights versus Welfare of Children
We now proceed to examine the judicial trend in various High Courts. Our courts have been confronted with the
problem of giving effect to the principle of supremacy of paternal right as enshrined in section 19 of the
Guardians and Wards Act and at the same time subordinating it to the interest of the child. More often than not
they have found themselves unable to get over the paternal power in view of express provisions of section 19.
Yet, time and again, they have tried to get over the letter of law and have said that welfare of child is the
paramount consideration before which paternal right must give way. This is fascinating study of a judicial
process where our judges are faced with the dilemma of interpreting the law as it exists and of giving it a
Page 16 of 34
progressive twist so that it conforms with social needs, especially in a matter where the court exercise parental
jurisdiction.
In the four reported cases that came before the Guardians and Wards Act, 1890, where facts were almost
similar, the children have left their father’s custody and have joined some Christian Missions— the court held
that the legal guardian has the right to the return of their custody.4The court took a like view in cases coming
immediately after the Guardians and Wards Act, 1890. In Andiappa v. Nallendrain,1 the court said that before a
father can be deprived of the custody of his child it must be established that by any act or conduct of his, he has
rendered himself unfit for guardianship: the mere fact that the child may be happier or more comfortable with
other relations is not sufficient to deprive him of his right of custody, is a civil right and can be enforced as such
by a civil suit.2
There is a long line of cases in the Madras High Court. In Sheikh Moideen v. Kunha Devi,3 and Atchayya v.
Kosarji Narhari,4 the court said that in the eyes of law the father is the natural and legal guardian of his children
and as such has the paramount right of their custody of which he cannot be deprived unless he is found unfit.
Beasley, C.J., repeated this language in Suppiah v. Suppiah,5 but added that there is another important
consideration, viz., the welfare of children.
Suppiah v. Suppiah,5 marks a change in the judicial thinking in the Madras High Court in favour of welfare
principle.6
From 1950 onward there are series of cases in which the Madras High Court has no hesitation in repelling the
contention that the father has absolute right of custody of his children. The court said that the welfare of the
children is the paramount consideration and the father can be deprived of custody even though he is not found
unfit if circumstances show that in the welfare of the child, the custody should be entrusted to some one else.
As against the father the court gave custody to the mother.7
In Rai Chand v. Sayer Bai,8 the father-in-law of a minor widow aged 16 years, as guardian by affinity, claimed
the custody of her person and appointment of himself as the guardian of her person and property. The court
observed that though existence of a dispute about property would not, by itself, disqualify the father-in-law from
being appointed a guardian of his minor widowed daughter-in-law but since his interest was adverse to her, he
could not be appointed as her guardian, the welfare of minor being paramount consideration under section
13(1), the Hindu Minority and Guardianship Act. The daughter-in-law also expressed her wish not to go to the
house of her father-in-law.
The determination of welfare of minor depends upon in appreciation of fact-situations and how difficult it
depends upon the judge’s perception of the situation is well-illustrated by Bhagya Lakshmi v. Narayana Rao,1
where the court committed the custody of three children aged 14, 12 and 9 respectively to the father. The
children were in the custody of mother who was living with her parents. The court observed that the welfare of
children required that father who was living and caring and who had means should be given custody. He could
give them best comfort and education. The court added that son needed the advice of the father, and daughters
would get best care. The only thing, the learned Judge found against the mother was her lack of means and her
dependence on her father who was old. He apprehended that on the death of her father, mother would become
a destitute. Unfortunately the court ignored the emotional and psychological aspect of depriving the children of
mother’s custody with whom they have been living all along. If the mother was poor the father could have been
ordered to pay maintenance to the children.
Baddi Beddi v. Kadam Sueya Rao,2 a case after the coming into force of the Hindu Minority and Guardianship
Act, the Andhra Pradesh High Court had no hesitation in saying that the welfare of children is the paramount
consideration. The court observed:
It is a proposition so well-known and established that it cannot be questioned at all that the welfare of the minor is the
prime consideration in such matters and that even the paramount right of the father as natural guardian should be
subordinated to the welfare of the minor.3
The question came for consideration in Vegesina Venkata Narasiah v. Chintalpati,4the court considered the
question once again. A female child was living with her maternal grandmother almost from her birth, mother
being dead. After about seven years father wanted the custody of the child. The father had re-married and had
children from his second wife. The court said that there was nothing to show that the father was unfit to be the
guardian of the minor. The only question was: whether the child must be uprooted from the surroundings in
Page 17 of 34
which she had been brought up, especially when there was nothing to show that those surroundings were not
proper and be handed to the custody of the father where she had to live with her step-mother and her step-
brother and step-sister. Upon the court being confronted with the argument that in view of section 19 where the
court finds that father is not unfit, it has no alternative but to grant custody to the father, the court said that
welfare of the child is the paramount consideration over which paternal right cannot prevail. The court fortified
its argument by relying on section 13 of the Hindu Minority and Guardianship Act, 1956.
In L. Chandran v. Venkatalakshmi,1 the court gave a slashing blow to the concept of supremacy of paternal
right and drew support from Article 21 of the Constitution. P.A. Chaudhry, J., observed that the child has to be
regarded as a person who has a right to life as guaranteed by Article 21. The learned Judge added that ‘life’ in
this context has to be understood as something comprehending more than mere animal existence. In view of
this, the court held that the theory of father’s unconditional rights to child’s person and custody contravened this
constitutional guarantee since adherence to that theory would reduce the child to the position of a chattel from
the position of person. The custody of the child can be committed to the father only if it was conducive to the
welfare of the child. In this case after the death of the mother, the father allowed the child to be brought up by
maternal grandparents, since in his house there was no female help. The court also found that there was
nothing against the father. He did not lack love and affection towards the child. But the court felt that it would
not be in the interest of the child to be handed over from the care and custody, of the active and loving maternal
grandmother to the passive and silent paternal care. This case may be contrasted with Bhagya Lakshmi
discussed earlier.
Again this case may be contrasted with Md. Jameel Ahmed Ansari v. Ishrath Sajeeda,2 a case under Muslim
law. This case has been decided totally on the basis of Muslim law under which father is entitled to the custody
of his son who has attained the age of seven years. In this case the custody of the child aged 11 years was
given to the father. The court added that there was nothing to show that the father was unfit to be the guardian.
The fact that the child was all along living with the mother was considered of no consequence. Adhering to
mechanical jurisprudence, the court ignored the emotional and psychological tremors that would be caused by
the uprooting of the child where it had all along grown and to be transplanted to new surroundings.
The Allahabad High Court has oscillated between the two principles: Supremacy of paternal right and
paramountcy of the welfare principle. In Abdul Aziz Khan v. Nanhe Khan,3 a case under Muslim law, it followed
the decision in In re, Thain.4 The court observed:
..........a father is not only the natural guardian but has an inalienable right over his child, unless these are
overwhelming circumstances to the contrary.
Walsh, A.C.J., expressed similar views in an earlier case. His Lordship said that the father being a natural
guardian of his children, has inalienable rights: an immoral father has as good a right to his own children as
moral man. The court granted custody to the father, who was leading immoral life, of his seven year-old child
who was living with a relative.1
On the other hand, the court took a different opinion in certain cases. In Sukhia v. Makha,2 the paternal
grandfather of a Muslim child desired to enforce his right of custody. The child was living with his mother where
he was very well-looked after. Refusing to grant him custody, the court said that the right of a person entitled to
custody is subordinate to the welfare of the child. Again, in Mst. Sakina Begum v. Malika Ara Begum,3 where
the mother, who was living separate from her husband; applied for the custody of her two children, one aged
four years and the other one and a half year, the court said that the welfare of the children required that they
should be in the custody of the mother. In both the cases the mother has forfeited her right of custody under
Muslim law. It should be noticed that in both the cases the father had not asked for the custody; nor was such
an order sought. In Lalita v. Parmatma Parsad,4 the court gave custody to the putative father as against the
mother who was leading immoral life.5
The writer is not aware of any recent reported case from the Allahabad High Court.
The Calcutta High Court also began by laying stress on the ‘natural and lawful rights’ of the father to the
custody of his children.6 In 1928 the court said that in adjudication in respect of guardianship and custody, the
question should be looked at from the point of view of welfare of the minor, which is the first and paramount
consideration. Then, the court said, the parents are, as a general rule, entrusted with the custody and education
of children because there is a natural presumption that the children would be well looked after, but whenever
Page 18 of 34
this presumption is rebutted,7 the court will interfere and deprive them of custody of their children. In this case,
the father was always away from his home for nine months in a year. The court, it seems, with a view to
complying with section 19, said that the father was unfit. Thus the father was denied custody because he was
found unfit.8
In Jwala Prasad v. Bachulal,9 where a child, aged seven years, was living with its maternal grandfather since
its birth and the father had not at all cared for him and had not paid a single visit during all this period, the court
gave custody to the father and said that it would not interfere with the natural rights of the father except when
the welfare of the child required such interference, such as when the child’s health and happiness were
materially affected.
In the matter of Lovejoy Patel,1 one C.G. Raha applied for the custody of two minor children, a boy and a girl,
with the averment that the girl was entrusted to her custody soon after its birth under an agreement between
her and its parents with stipulation that she could keep the child with her. Since then the girl was with her. The
male child was given to her when it was seven years old for the purpose of education. At no time after the birth
of the girl, the parents contributed any money towards its maintenance, though for the education and
maintenance of the boy the father had made some payments. Giving the custody of the boy to parents, the
court said that it could not be said that the father had failed or neglected to discharge his duties to such an
extent as would disqualify him from asserting his natural rights. On the other hand, the court appointed the
applicant as guardian of the girl as it felt that by long acquiescence, though for no other fault or misconduct of
his own, the father has placed himself in such a position in respect of her that he had forfeited his natural right
and rendered himself unfit to be the guardian. The latter part of the observation is, in our submission, added to
get over the provision of section 19. That the case was mainly decided on the consideration of welfare of the
child is clear from the following observation of Das, J.:
I am appointing her as the guardian of the person of the female child not because the applicant has any right to be so
appointed, or that I can take note of her sentiments, but because the welfare of the female child demands it.
The shift towards welfare principle is obvious. But this was a case under the inherent jurisdiction of the High
Court.
In the matter of Kamal Rudra,2 a child, aged four years and a half, was living with his mother, who had
separated from her husband. On the father’s application for custody, the learned Judge observed:
I have no doubt in my mind that mother’s lap is God’s cradle for a child of this age, and as between the father and
mother, other things being equal, a child of such tender age should remain with the mother.
The custody was given to the mother.3
In Sunil Kumar v. Santirani,4we find a categorical statement by both the judges of the Division Bench that the
welfare of the child is the paramount consideration. Chakravarti, J., said that though under section 19, the
Guardians and Wards Act, a father cannot be deprived of the guardianship of the minor children unless he is
found unfit, section 13, the Hindu Minority and Guardianship Act makes the welfare of children prime and sole
consideration and, therefore, the former section has to be subordinated to the latter.1 In this case the father had
driven out the mother and the child (when child was one year old) from the matrimonial home and had not
cared since then. When the child attained the age of five he applied for custody. In these circumstances the
court said that to give custody to the father would be against the welfare of the child.2
In Satyandra Nath v. B. Chakraborthy,3 certain paternal relations claimed the custody of a minor child who was
in the custody of maternal relations with the averment that paternal relations have a preferential right. Rejecting
this argument, the Calcutta High Court said that it is the welfare of the child which is paramount consideration.
The court added that both paternal and maternal relations stood in the same degree of proximity to the child.
The Lahore High Court in its earlier decisions gave effect to the supremacy of paternal right. It began by saying
that unless a father was found unfit he could not be removed from his natural guardianship,4 and a very strong
case had to be made out to defeat his natural and inalienable right to custody of his children.5This was clearly
the result of liberal application of section 19 of the Guardians and Wards Act.
Then in 1952 the question came for consideration before Punjab High Court in Manjeet Singh v. Bakhshish
Page 19 of 34
Singh,6 where the father’s lack of interest in the child was proved, the court rejecting his application said that
the welfare of the child was the paramount consideration:
A perusal of the authorities does not show that the father’s right is absolute. It is circumscribed by the consideration of
the welfare of the minor. If the minor’s welfare requires that the custody should not be given to the father, he cannot get
it merely because he happens to be the father!
With this case, the Punjab High Court makes a definite swing towards the welfare principle, though an
occasional swing in the other direction is also made.
In Shanti Devi v. Gian Chand,7 the mother had the custody of the child under a compromise. After divorce, both
the parents had remarried and had children from their second marriages. The father applied for custody of the
child. Granting custody to the father, Bishan Narayan, J., said:
Now there can be no doubt that the father of the minor boy is the natural guardian under Hindu law and under the
Guardians and Wards Act also he has the right of custody unless the court comes to the conclusion that the father is
unfit to have the custody and that it is not for the welfare of the minor that the father should be allowed to exercise this
right of his.
The learned Judge seems to take the view that both the considerations— unfitness of the father and non-
welfare of the child-should co-exist. One wonders how they can in every case, unless we say that if the father is
not unfit, it is always in the welfare of the child to live in his custody. This reasoning is the result of the learned
Judge’s attempt to add up to the provisions of sections 19 and 25.
In Avinash Devi v. Khazan Singh,1in a decree of judicial separation granted in favour of the wife on the ground
of husband’s cruelty, the court granted custody of the child to wife, till the child attained the age of seven. The
wife appealed to the High Court against this limitation and argued that under section 26 of the Hindu Marriage
Act, the court had to take into consideration welfare of the children which was the paramount consideration; and
if there had been any doubt in this regard the same had been set at rest by section 13 of the Hindu Minority and
Guardianship Act, 1956. That section 13 of the Hindu Minority and Guardianship Act, 1956 deals, only with
guardianship and not with custody, seems to have escaped the notice of the learned Judge. The learned Judge
then observed:
Even under the Act of 1890 there is a large volume of authority for holding that it is the welfare of the minor that is of
paramount importance, and even if a view prevailed at a certain time that irrespective of every consideration the father
is entitled to guardianship and custody of the minor, it should be considered to be out-moded and shall be treated only
as a matter of ancient history. But in Shanti Devi v. Gian Chand,2 a Judge of the Punjab High Court gave effect to
her’s rights and refused to consider what was for the welfare of this child.
Then came Kanwaljeet v. N.K. Singh,3 and Mahajan, J., could not agree that the supremacy of paternal right
was a thing of ancient history. On the question of custody of a child the marriage of whose parents was void,
the learned Judge said, that since the mother was the natural guardian of her illegitimate child, she was entitled
to the custody of the child.4 The court did not care to consider whether such an order was or was not in the
welfare of the child.
The question again came for consideration in Rattan Amol Singh v. Kamaljeet Kaur.5The parents of four
children were living separate. The three girls were with the father and the boy was with the mother. On the
father’s remarriage, the mother applied for the custody of three girls. The father cross-petitioned for the custody
of the boy. Dua, J., said that the provisions of the Guardians and Wards Act and of the Hindu Minority and
Guardianship Act, 1956, should be read together and thus read, the inevitable conclusion is that the benefit of
the minors is the dominant and paramount consideration. The learned Judge observed:
The father’s right to the custody of his minor child is not absolute; nor is it indefeasible in law; it is circumscribed by the
considerations of the benefit and welfare of the minor.
Thus to override the inhibitions of section 19 of the Guardians and Wards Act, section 13 of the Hindu Minority
and Guardianship Act, 1956, was resorted to and rightly so. The court ordered for the maintenance of status
quo, though appointed the mother as guardian of the male child.
Page 20 of 34
Daulat, J., expressed the hesitation of a judge who was conscious of the provision of section 19. The learned
Judge said:
My only doubt was about the propriety of the order formally declaring the mother as the guardian of the minor son as
that seemed to imply that the father is unfit to be the guardian for which implication there was no proper justification in
the evidence. My learned brother Dua, has, however, placed the matter solely on the basis of the minor’s welfare and
the particular implication of which I was apprehensive has, therefore, disappeared.
This case again illustrates that unless a person is appointed guardian, the court cannot give him custody. But
this case also indicates the Punjab High Court’s swing towards welfare principle. But one wonders whether the
Court would take the same view in respect to non-Hindu children to whom the Hindu Minority and Guardianship
Act, 1956, does not apply.
The Bombay High Court’s swing has been from very beginning towards the welfare principle.
In In re, Gulbai and Lilabai,1 the Court said that in making an appointment of guardian or in committing custody
of the person of minor children, the most paramount consideration for the judge ought to be: what order under
the circumstances of the case would be best for securing the welfare and happiness of the minors? With whom
will they be happy? Who is most likely to contribute to their well being and look after their health and comfort?
Who is likely to bring up and educate the minors in the manner in which they would have been brought up by
the parents if they had been alive? The question before the court was in respect to two girls whose parents
were dead.
In Bai Tara v. Mohanlal Lalubhai,2 the child from its birth was living with the mother who had separated from
the father. The father had taken a second wife. On the father’s application for guardianship and custody of the
child, the court said that the welfare of the child is the prime consideration and a child of seven years would be
much better of living with his mother than with the father and step-mother.
Similarly, Beaumount, C.J., said in Saraswathibai v. Shripad,1 that the modern view of judges in England is it is
impossible in the case of young child to find any adequate substitute for the love and care of natural mother and
if she is suitable, custody would be committed to her. The learned Chief Justice observed:
However, the paramount consideration is the interest of the minor, rather than the right of the parent.2
The Bombay High Court has adhered to this view consistently.3
Going a step further, it was held in Vinod Chandra v. Anupama,4 that since father contumaciously disregarded
the order to pay interim maintenance even though he had an affluent background and had his own business, he
would not be allowed to take benefit of his own wrong and was thus denied access to the child, till he complied
with the orders of interim maintenance. The court observed:
Till the said amount is deposited, this petition will not be heard, as it is in the interest of minor child that arrears of
maintenance first must be cleared.
On the whole the Kerala High Court has leaned in favour of the welfare principle. In Marggarate v. Chacko,5 the
court said that welfare of the minor is the paramount consideration to which the parental rights are to be
subordinated. But this was a habeas corpus petition where the court’s exercise of parens patriae jurisdiction is
free from the inhibition of section 19, the Guardians and Wards Act.6 In Vasudevan v. Vishwalakshmi,7the
court gave effect to the principle of paternal supremacy in circumstances in which it could have easily held
otherwise. The mother of a child, aged two years and half, applied for its custody with the averment that she
was ill-treated by her husband and was finally turned out from the house. She further said that the child was of
tender age and, in view of the proviso to section 6(a), the Hindu Minority and Guardianship Act, 1956, she was
entitled to its custody. Rejecting mother’s application, the court said that the proviso was very guarded in its
language and it cannot override the father’s right of custody unless the father was found unfit. Thus section 19
loomed large in the mind of the learned judge. On the other hand,Raman v. Ayyappan,8 stands in direct
contrast between the father and mother for the custody of a child of tender years, the court, in the interest of the
child would prefer the mother to the father. In Appu Manon v. Janki Amma,9 the court said that the welfare of
Page 21 of 34
the child is the prime consideration and if ‘minor’s welfare required that custody should not be given to the
father, he cannot get it merely because he happens to be the father.’
Suharabi v. D. Muhammed,1 is a case under Muslim law. The mother sought custody of her female child aged
one year and a half. The mother was entitled to custody under Muslim law. The father was not entitled to
custody under Muslim law. The father objected it on the ground of mother’s poverty. The court said that apart
from the clear provision of Muslim law under which she was entitled to custody, the welfare of the child of such
a tender age required, that she should be in the custody of the mother. The father’s objection that mother was
poor and could not afford to keep the child was rejected.
In C.S. Reddy v. Yamuna Reddy,2 the question was of custody of two minor children, a boy aged 10 years and
a girl aged 12 years, between the parents. It was a broken marriage and the mother along with her children was
living in her parents’ house. It appears both the parties were affluent. The children were educated in one of the
best school in Madras where mother was living. Almost from their birth the children were living with the mother.
After noting the statutory provisions that father is the natural guardian and he cannot be denied guardianship
unless he is found unfit (section 19) and that a guardian is entitled to custody (section 25) the court said that in
every case the welfare of children is the paramount consideration. In this case the girl though aged 12 years
and the boy aged 10 years now, need care, protection and guidance of the mother, who has practically brought
them up from their birth. She is the most interested person. We may not be misunderstood when we say that
the mother alone is the most interested. The father is also interested. Since it is the mother, who would have
the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of
the most interested person, the mother has come to be preferred to others. The girl will be soon attaining the
age of puberty and in that difficult period it should be the mother who should be in custody of the girl, then the
father. He is living with an old mother and he has to attend to his business the whole day and he has to go out
of Bangalore more often. In such surroundings, there is every likelihood of the girl running serious risks. The
same would apply to the boy also. The girl has expressed her willingness to be with the mother. In the
circumstances it is also essential that both the girl and the boy are brought up together. The minors have been
brought up by the mother. They have lost touch with the father. Where that sort of thing happens, it is inevitable
that the natural inclination and desire of the minors will be to be with the mother who has been closest. That
apart, human nature is much the same all the world over and in our opinion if the mother is a suitable person to
take charge of the child, it is quite impossible to find an adequate substitute for the custody of a child of tender
years.
The Jammu and Kashmir High Court has so far taken the view that the welfare of the child is the paramount
consideration. In Hassam Bhatt v. Gulam Mohammed,3 the court very rightly observed that it was not the right
of two parents, nor even the question as to who is at fault which are determining factors, but the determining
factor is: what would be for the welfare of the child under the circumstances of the case. It expressed the same
opinion in Sunderi v. Mst. Fafoo.1 The Judicial Commissioner’s Court of Himachal Pradesh,2 and Oudh Judicial
Commissioner’s Court,3 also take the view that the father’s natural right to custody of his children is not rigid
and inflexible rule and must give away where minor’s welfare requires.
In Kusa Parida v. Baishnab Malik,4 the Orissa High Court said that welfare of the minor is the paramount
consideration and referring to section 13 of the Hindu Minority and Guardianship Act which lays down that no
person can be appointed a guardian of the minor if it is not for the welfare of the minor, the court said that a
mother who did not care for her minor child after the death of the father of the child is not entitled to be
appointed a guardian. In this case the mother had remarried. The court added that mother does not lose her
right of guardianship by remarriage, but since she had not earned for the child after the death of the father, it
was not in the welfare of the child to appoint her a guardian. The same view was expressed in Merra Devi v.
Shyam Sunder,5 where father applied for the custody of ten years old son who was in the custody of the
mother. He averred that the mother was an illiterate person and practically had no income, and thus he was a
better person to look after the child. The court observed that father’s income was no criterion for giving him
custody. It was not for the welfare of the child to remove him from the custody of the mother.
On the other hand, the Rajasthan High Court in some cases has expressed its preference to the supremacy of
paternal right. In Gurdeo Singh v. Mst. Daulat,6 the Rajasthan High Court said that though welfare of the child
is paramount consideration to which all other considerations are to be subordinated, the paternal right is
supreme and the father cannot be deprived of the custody of his children unless he was found unfit. In Gheesi
v. Shri Ramz,7 the mother had applied for the custody of her minor child aged about five years. The court held
that although section 6 of the Hindu Minority and Guardianship Act lays down that mother should ordinarily
have the custody of her children below the age of five, in the present case it would not be for the welfare of the
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child to give her custody as since the age of two child had lived with the father and might not even recognize
the mother. In Latta Prasad v. Ganga Sahai,8 the trial court appointed grandfather as the guardian of two minor
boys above the age of five. There was nothing to show that the father was unfit. The court said that now that
welfare of the child was paramount consideration, it was immaterial that father was not found unfit. Since the
order of the trial court was in the best interest of the boys, the High Court refused to interfere.
How difficult the question sometimes becomes is illustrated by Snehlata v. Mohindra Narain,1where the
Rajasthan High Court though said that the welfare of the child is the paramount consideration, it could not
assess correctly (it is submitted) as to what is for the welfare of the child. In this case parties were married in
1971 and female child, named Mona, was born to them in 1972. But the marriage was not a going concern from
the beginning. The relationship remained strained so much so that some time after the marriage, the mother
had to resort to criminal proceedings for the recovery of the custody of Mona. Ultimately the marriage was
dissolved. Mona lived with her mother and maternal grandparents. In 1974, the mother went to England for
higher studies. In 1976, father sued for custody of the child is under the Guardians and Wards Act. The learned
Judge correctly formulated the legal proposition thus: father will not be entitled to custody merely because he is
the father, that right is circumscribed by the benefit and welfare of the child. The court then proceeded to find
out the relative merit of custody being committed to the father or to the maternal grandparents and decided in
favour of the father. In this case the child who had been almost from the birth lived with the grandparents
expressed a preference to live with them. But the learned Judge said that undue importance, should not be
given to the so-called preference of the child of 6 or 7 years of age, such a child not expected to form an
intelligent preference. Then he said. “We are satisfied that the little girl will be equally happy, if not more, in the
custody of her father once she returns to him and comes to know him.”
In fact this is one of those difficult cases where decision could have been the other way also, but what weighed
on the court was that as between the father and grandparents, the father should be preferred. After all the child
should not grow into the oblivion of his father. On the other hand, uprooting of the child from the place where it
has grown almost from its birth would certainly have emotional and psychological repercussions on the child
which could not be in his interest. But then should father’s association with the child have no meaning. Had it
been a question between father and mother, the court, it seems, would have decided in favour of the mother,
but, as it was, contest was between father and maternal grandparents and the court decided in favour of the
father.
In Chander Kant v. Hera Lal,2 the Madhya Bharat High Court adhered to the rule of supremacy of the paternal
right. The court said that the father could not be deprived of the sacred trust of rearing up and educating his
children and that it was always in the welfare of children that they remained in the custody of the father. At that
time the Hindu Minority and Guardianship Act was not passed. In Sheo Kumar v. Shiv Rani Bai,3 the Madhya
Pradesh High Court reiterated its position by saying that subject to statutory restrictions and court’s orders, the
father’s rights over his minor child are absolute and uncontrolled. He is also the proper judge of the school in
which his child is to go. In this case the father has entrusted the custody and education of the child to a third
person. The court added, that father’s guardianship over his children is in the nature of a trust and he cannot
therefore, in his lifetime substitute another person to be the guardian in his place. In the words of Dixit, J:
He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to
another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require,
it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own
hands. If, however, the authority has been acted upon in such a way as, in the opinion of the court exercising the
jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the infants which
it would be undesirable in their interests to disturb or disappoint, such court will interfere to prevent its revocation.
Then the court said that once it found that revocation of authority was in the interest of the child and restored
the custody to the father, the above consideration became irrelevant.
In Bhagwati Bai v. Yadav,1 Shiv Dayal, J., said that the welfare of the child was the primary consideration and
the rights of the father or guardian were secondary. But this is the writ of habeas corpus, where section 19 does
not inhibit the court.
In Balram Mandal v. Rajani Mandalain,2 there were several daughters of the marriage and a son. On account
of some acute differences, the mother was turned out of the matrimonial home alongwith the daughters. The
son continued to live with the father. The father remarried. The step-mother ill treated the son. Under these
Page 23 of 34
circumstances holding that welfare of the child was paramount consideration, the court appointed natural
mother as the guardian of her children including the son.
Chandra Prabha v. Prem Nath,3 was mother’s application for custody of minor child below the age of five years
in matrimonial proceedings for judicial separation. Relying on section 6(a) of the Hindu Minority and
Guardianship Act, the court said that it is in the welfare of the child and disregarded preference of the child who
was only three years in favour of the father. In Nirmal Jain v. State,4 the court was concerned with the custody
of a boy of 14 years. The couple had separated at a time when child was only ten months old. The boy was
since then living with the father. On the demise of the father mother claimed custody. On the other hand, the
custody was claimed by the paternal grandmother and paternal uncles who were financially well off and claimed
that they could better look after the child. Granting the custody to the mother, the court observed that just
because paternal relations could provide better material comfort to the child was not a valid consideration to
deprive the mother of the guardianship and custody of the child. In Nandita Virmani v. Raman Virmani,5 the
Delhi High Court observed that the legal right of a person claiming as guardian was very insignificant, the
predominant consideration being welfare of the child. The fact that mother herself was dependent on father was
also immaterial. In AyeshaBhatra v. Vijay Bhatra,1 the court observed that though the father under the Hindu
law is the natural guardian of a son above the age of 5 years, it does not follow that if the father is not otherwise
found unfit, the custody must always be given to the father. The primary and paramount consideration for the
court in making any order is the welfare of the minor in the background of all relevant facts having a bearing on
his health, maintenance and education. A child of tender age not only needs the basic requirements of food and
shelter but for his proper growth he requires love and affection and tender care to satisfy his emotional needs
because in these delicate years of childhood, his emotional and psychological approach towards life has also to
be nurtured. Granting custody to the mother, the court said that trauma of being separated from the natural
mother at tender age could have a grave and irreparable impact on the mind of the child.
Custody can also be retained with maternal grandparents if welfare of child so requires. In this case mother was
dead and father was facing trial under section 498A, 304B of Indian Penal Code. Welfare of child also includes
moral and ethical welfare.2 Where mother was dead and father was under debts custody was allowed to be
retained by maternal grandparents.3
4. Paternal Responsibility, Welfare of Children and Public Responsibility
(a) Paternal Responsibility
It may appear surprising that in the early law of most of the systems, there is nothing much as to the parental
obligations or responsibility to maintain the children was not recognized. This was so in early Roman law. At
English common law it was nothing more than a moral obligation and in respect to illegitimate children even
moral obligation to maintain children.4 Under the English matrimonial law also parental obligation to maintain
children is recognized. Among the ancient systems it was only Hindu law in which the paternal obligation to
maintain the children, both legitimate and illegitimate, was recognized from earlier times. Under the modern
Hindu law the obligation is imposed on both parents.5 Under the Indian law the obligation is also enforceable
under the criminal law.6 Although in some of the states of the United States, maintenance of the children is still
a moral obligation,7 in others it is a legal obligation of parents to maintain the children.8 During the period of
Roman Empire, parental duty to maintain the children was fully recognized. From Roman law it passed into the
codes of the Continental Europe.9 The modern trend in European countries is to impose a legal obligation of
maintenance of children, both legitimate and illegitimate, on both the parents. This is so under the West
German law.1 Similarly the Soviet law, apart from the State obligation to provide maintenance for the destitute
children, imposes on both parents an obligation to maintain their children.2 The same is the position under the
modern Polish law3 and the law of the Peoples Republic of China.
Along with the obligation to maintain and educate children, the modern law of many countries imposes criminal
liability on parents for deliberately neglecting them.
(b) Welfare of Children
It is now almost a universally recognized principle that in any adjudication in respect to children, the welfare of
children is the paramount consideration. It is one of the few principles which cuts across ideologies.
In English law the principle was originally evolved by the Chancery Court and was applicable only in the
Chancery jurisdiction. But under the modern English law it is now applied by a multitude of judicial and quasi-
judicial tribunals: it is applied in civil, criminal and administrative proceedings in respect to children. Today the
Page 24 of 34
principle is recognized in the American law, in all the countries of the Commonwealth including India. It is also
recognized in China, Poland and the Soviet Union.
We would briefly review the application of the principle in English law and Soviet law to show how this principle
cuts across the ideological barriers.
Originating in the Chancery jurisdiction,4 the principle of welfare of children was accorded firm statutory
recognition by the Guardianship of Infants Act, 1925.5 Except for a little distressing trend represented by the
decisions in In re,Thain,1 and in In re, O.,2 the welfare principle is deeply entrenched in English law. What
these decisions seem to lay down is that if proceedings are between a parent and a third party (and a putative
father is considered a third party), the welfare principle has no application, and the parental rights, therefore,
have undisputed sway. But if proceedings are between parents the welfare principle would apply. The same
view has been taken by English Courts in adoption cases, where putative father has practically no say if the
mother desires to give away the child in adoption: however, the welfare of children is the paramount
consideration.3 It is heartening to note that the Court of Appeal has by its decision in In re, Adoption Application
41/161,4 mitigated to great extent the hardship of decisions in In re, Thain5 and in In re, O.,2 Danckwerts, L.J.,
said that there could be only one first and paramount consideration and other considerations, must, therefore,
be subordinated to that and could be effective only if coincided with it. The learned Judge observed:
Consequently it cannot be correct to talk of pre-eminent position of parents, or of their exclusive rights to the custody of
children when the future welfare of those children is being considered by the court.
Thus, under the modern English law, parental rights may be totally sub-ordinated to the welfare of children.
The Soviet cases represent this trend— that the welfare of the children is the paramount consideration— more
forcefully and have been consistent in giving effect to the welfare principle. The courts display a tendency to
favour mother than father in the matter of custody of children, as, according to Soviet courts, the interest of the
child is better served in the home maintained by the mother than in the home kept by the father. In Kvartshav v.
Redkoya,6 where the parents of a child have separated and the child was living with its mother who was putting
up with her parents, the father applied for the custody of the child. The trial court declined to given him custody
but granted access to the father with the direction that the mother should allow the father to take away the child
to his home twice a week and to allow the father to meet the child at any time. The judgment was affirmed by
the first appellate court. But when the case went to the Supreme Court, the judgments of the lower courts were
reversed as it felt that such an arrangement would subject, the child to two different regimes which would be
undesirable for the development and upbringing of the child. However, the Supreme Court added: “it goes
without saying that if the mother departs from a reasonable upbringing for the child, the father has the right at
any moment to bring a new suit against the mother to obtain the custody of the child.” This could as well have
been the judgment of an English Court.1 What is more remarkable is that the Soviet Courts have disregarded
even political consideration in the interest of the child. In Khazahalia, v. Shavangiradze,2 the trial court awarded
custody of the child of the marriage to the father on the ground that he could provide the child with ‘a
responsible communist upbringing’ which seemed almost impossible in the home of the young mother, on
appeal, the Soviet Supreme Court said:
The court must consider solely the interest of the child. In doing so the court must bear in mind that the interest of the
child are not secured solely by the material conditions necessary for its upbringing. The better material conditions of
the father are no reason for taking away a child of two and a half years from its mother.”
This echoes the observations of Lindley, L.J. in In re, Mcgrath.3
In the modern law we find that courts are more favourably inclined towards the mother in the matter of custody
of infant children. The reason is that now it is accepted universally that mother can look after a child of tender
age with much care and affection: in fact there is no substitute for mother’s care and affection.4 This is the
trend in English law and this is the trend in Soviet law. But whenever the interest of the child requires that the
mother should not have custody, or that the father or a third person should have custody, the courts have not
hesitated from doing so. Thus in Krimov v. Polishchuk,5 custody was given to the father as the mother was
found to be insane. Again in G. v. K.6 the court after divorce between parents, entrusted the custody of the
child to the father saying that neither she was in a position to care for nor did she wish to care for the child.
When the mother again applied for the custody of the child, the Soviet Court said that if the mother had
abandoned the child, and refused to rear it up, she would not be allowed to regain it.7 In Kumar V. Jahagirdar v.
Chetana K. Ramateertha,8 the Supreme Court has observed that while granting custody of minor child, the
Page 25 of 34
mother would always be preferred over father is not true. No such generelization can be made. The welfare of
child is the paramount consideration and not the convenience or pleasure of the parties. (Incidentally in the
instant case mother was found to be fit to have been granted custody of minor daughter).
Side by side with the application of the principle that the welfare of children is the paramount consideration1
that the court adjudicating in matters relating to children acts as the supreme guardian of children and that the
courts jurisdiction is not meant merely to enforce parental rights,2 it is also now realised that some of judicial
principles for the administration of justice by courts may also be sacrificed in the interest of children. In In re,
K.,3 Lord Delvin very aptly observed:
In the jurisdiction parens patriae there are unquestionably some principles of judicial inquiry which are not observed:
It is now realised that proceedings in respect to custody, access etc., of children in a court of law are more
administrative in nature than, strictly speaking, judicial. The procedure cannot, and should not, be that of adversary
litigation between two litigants. They are (and should be) no-contentious proceedings.4 The first step in this direction
was taken by the English law in 1958 when the law provided for court welfare officers, who are entrusted with the duty
of investigating and reporting in cases concerning children whenever they were required to do so by the court. Thus,
the courts in dealing with questions of welfare of children no longer depend wholly on the contentious evidence
produced by the parties, but can rely on the report of the trained and independent investigators with opportunities of
investigating in the natural and real surroundings of the parties.5 By relying on the report of court’s own investigation—
the court’s investigating officer— rather on the evidence of parties which is more often than not motivated by the idea
of serving the interests of the parties, the court acts a real parens patriae and is in a position to find out precisely what
is in the welfare of the child in a given case. In this the court remains essentially a judicial court, though the procedure
followed is essentially administrative.
In this changing role of the court in respect to children, there is yet another development; the realization that in
these proceedings there are not two parties— the petitioner and respondent— but also a third party— the
children. And that third party is the most important party. Hitherto, in guardianship proceedings only two parties
were recognized. In matrimonial courts proceeding in respect of children were considered as ancillary
proceedings. In this respect we find some very important developments in English law.1 The modern English
matrimonial law clearly recognizes that in matrimonial cases there are three parties— the third party is children
and they are the most important party. The Matrimonial Proceedings (Children) Act, 1958,2 lays down that a
decree nisi for divorce or any other matrimonial relief is not to be made absolute until the court is satisfied, on
the report of the court welfare officer, that arrangements proposed for the care and upbringing of children,3 are
best that could be devised under the circumstances.4 The court’s power is now much more extensive in respect
of making orders for future care and upbringing of children under its jurisdiction. It has now power to entrust the
children to the care of probation officer,5 or to the care of a local authority.6 Once the court is seized of the
jurisdiction, it can adjudicate and pass orders in respect of custody maintenance and education of children even
if the main proceedings are dismissed on merit.7
(c) State’s Responsibility
Laws of most of the countries of the world now recognize the State’s special responsibility towards children.
When the parents fail to discharge their responsibility and obligation towards children, the State assumes the
role of the parent towards them. Responsibilities of parents and State in this field are combined to accord
maximum protection to children. For instance, the modern law on the one hand imposes an obligation on
parents to give compulsory primary education (in many States compulsory secondary education also) to
children. On the other hand it provides facilities for free primary education. On the one hand the law imposes on
parents an obligation for compulsory medical tests of children, on the other it provides all facilities for such
tests. Mostly, we find that in most of the States both the responsibilities have been combined and inter-linked.
Many countries of world today provide for national health service, compulsory free primary and secondary
education, social insurance schemes, family allowances and the like. The industrial worker is provided with
additional assistance by schemes like accident-insurance and workmen’s compensation. Thus the shift is from
indirect method8 to direct methods of discharging State’s responsibility. For instance, under English law, the
Children Act, 1948, lays down that a local authority may take under its care any child who is destitute of
parental care, temporarily or permanently. The local authority may, in certain cases, even during the lifetime of
parents, assume parental authority over a child with a view to ‘further his best interests and to accord him
opportunity for the proper development of his character and ability.’1
This trend in the modern law of combining the private and public responsibilities towards children may lead
some to pose a question as Dr. Friedmann does—“ Does this growth of an administrative family law, arising
Page 26 of 34
from a vast and complex network of modern social welfare obligations indicate undermining of the whole
concept of the family?”2 Answering the question, Dr. Friedmann says that all this, on the contrary, seeks to
strengthen the family, though in the process the growing public family law modifies a great deal of traditional
private law of the family. In our submission what is most remarkable in the development of family law in its
direction is that though old bonds are loosening and breaking up, they are being replaced by new and perhaps
more enduring ones and the utility of family as a social institution continues undiminished.3 The institution of
the family has not yet out grown the social needs and it continues to be a very important and dynamic social
institution all the world over.
Today— a man’s home is not and need not be, his castle, yet it is undesirably the most beautiful campus on
whose grassy lawns and under shady trees and within whose four walls live the entire family— the children,4
the father and the mother,5— in happiness and freedom. What the modern family law emphasises is that the
family is not constituted of the father alone and certainly not of the father as the dominating ruling pater families
master of everything in the family and commanding everyone in the family, but of the children, mother and
father all living together in love and freedom— And since the children being the tenderest and most innocent
members, it is their interest which is of prime consideration and which needs maximum protection. Looked in
this perspective, the end of all laws concerning children is to serve the interest of children and to protect their
interest: whether it is a question of parental care and control, guardianship or custody, whether it is a question
of their employment or whether it is a question of juvenile offenders— the end of law is to accord protection to
interests of children. And the paramount— even-sole— consideration before any court or tribunal is the welfare
of children.
1 The Guardianship of Infants Act, 1929, section 1; the Guardianship of Minors Act, 1971, section 1.
1 Pollock and Maitland, History of English Law, 437, Vinogradoff. Historical Jurisprudence, sec. 319.
2 (1804) KB 5 East 221: 7 RRR 693.

3 (1836) 4 A&E 624.
4 In ex parte, Bailey, 49 RR 727, where the father was convicted of felony, and the child was with an aunt, the court, on a
habeas corpus petition, granted custody to the mother.
5 That the Court of Chancery has jurisdiction, was established in Butler v. Freeman, Amb 301.
6 In re, Lomley, 47 LT (NS) 284.
7 (1804) 10 Vessy 52: 56-7 RR 340.
8 (1820) Ch 39 : 23 RR 38.
1 (1824) 3 Moor 278: 27 RR 710.
2 (1828) HL 2 Blight, (NS) 29: 31 RR 15. In this case the court found that the father was living in adultery, and was
encouraging his children in swearing, in keeping low company, etc., the court said that it was fit case where it would
intervene and deprive the father of his right of guardianship and custody.
3 48 RR 203.
4 (1827) 2 Sim 35.
5 See ex parte, Lytton, cited in 5 East 222.
6 R. v. Greenhill, 44 RR 440.
1 Shelly v. Westbrook, (1821) Jacob 226: 23 RR 47.
2 In re, Goldsmith, (1876) 2 QBD 75.
3 R. v. Howes, 122 RR 723.
4 (1836) 4 A &E 624.
Page 27 of 34
5 Section 1 of the Act ran as under: “Upon hearing the petition of the mother of any infant or infants who being in the sole
custody or control of the father thereof, or any person by his authority, or any guardian after the death of the father, if
the court shall see it fit, to make orders for the access of the petitioner to such infant or infants, at such time and subject
to such regulation as the court shall deem just and convenient, and if such infant or infants shall be within the age of
seven years, to make orders that such infant or infants shall be delivered to and remain in custody of the petitioner until
attaining such age, subject to such regulations the court shall deem convenient and just.”
6 (1852) Ch Jursit 56: 95 RR 947.
7 (1848) Ch 2 Dg. and Sm 475: 79 RR 284.

8 (1859) 28 LJ Ch 458 : 118 RR 844. See also the observation of the learned V.C. at 459-460.
1 (1859) 1 Sw&Tr 484.
2 144 RR 257: 2 H&M 540-41.
3 Nothing in the Act could interfere with the execution of sentence.
4 Ex parte, Finn, (1848) Ch 2 Dg & Sm 475.

5 The statute was amended by the Wills Act, 1837. Under the Acts mother has no such power. See also Lord Manners in
Wellesley v. Wellesley, (1828) 2 B1 (NS) 124 (145-46).
6 R. v. Clarke, (1857) 7 El&Bl 186; Thomasset v. Thomasset, (1894) p. 295.
1 Section 4.
2 Section 35.
3 Section 4 and 35.
4 See Spatt v. Spatt, I Sw and Tr 215; March v. March, 1 Sw and Tr 321.
5 (1894) P 295.
6 (1883) 24 Ch D 317.
7 (1893) 2 QB 232.
8 (1894) P 295 (300).
2 (1876) 2 QBD 75.
3 It was found that the father habitually indulged in inebriety and violence of language of a most abominable character
that could be conceived of.
4 (1883) 24 Ch D 317.
5 The same principle was also reiterated in In re, Elderson (Infants), (1884) 25 Ch 220, which was an exceptional case. It
was found that the children were weak, delicate and of nervous temperament, requiring excessive care and were not fit
to be sent to school. Under these circumstances the court felt compelled to give custody to the mother.
6 (1878) 11 Ch D 508.
1 Some of them have been now replaced by the Children Act, 1948.
2 Section 2.
3 Section 3.
4 Section 5.
5 Section 6.
6 The Act was popularly known as Mother’s Act.
7 (1848) 2 De G&S 457: 79 RR 284.
8 (1893) 2 QB 232.
9 See also R. v. New, 20 TLR 583, per Collins, M.R.
10 Re. O’Hara, (1900) 2 IR 232.
Page 28 of 34
11 In re, Finn, (1848) De G&Sm 457; In re, Agar Ellis, (1883) 24 Ch 317.
1 The Act defines ‘parent’ to include any person at law liable to maintain the child and entitled to his custody.
2 (1893) 1 Ch 786 .
3 (1897) 1 Ch 768 .
4 (1897) 1 Ch 786. See also In re, Hallislay Estate, (1852) Ch 17 : 95 RR 947.

5 See In re, Finn, (1884) De G&Sm 457; In re, Agar Ellis, (1883) 24 Ch 317.
6 The Act defines ‘parent’ to include any person at law liable to maintain the child or entitled to his custody.
1 In 1919 Parliament had passed the Sex Disqualification (Removal) Act.
2 The Preamble of the Act runs: Whereas Parliament by Sex Disqualification (Removal) Act, 1919, and various other
enactments, has sought to establish equality in law between sexes, and it is expedient that this principle should obtain
with respect to the guardianship for infants and the right and responsibilities conferred thereby. Now the statutes have
been consolidated under the Guardianship of Minors Act, 1971.
3 Section 6; now section 7 of the Guardianship of Minors Act, 1971.
1 Now section 5 of the Act 1971.
2 In re, Thain, (1926) Ch 676.
3 (1990) 2 IR 232 : the passage runs “In exercising jurisdiction to control or ignore the parental right the court must act
cautiously, not as if it were a private person action with regard to his own child, and acting in opposition to parent only
when judicially satisfied that the welfare of the child requires that the parental right should be superseded or
suspended.”
4 (1926) P 111.
1 (1931) 1 KB 317.
2 In re, Caroll has been subjected to very wide and divergent comments.
1 (1925) AC 101 : This was a case before the Act of 1925 and was an appeal from Ireland to the House of Lords.
2 (1940) Ch 54.
3 (1948) 2 All ER 413.
4 (1950) P 184.
5 (1954) 1 WLR 366.
6 (1969) I WLR 162, infant child was aged two years. Earlier in In re, L., (1962) 1 WLR 886, the Court of Appeal said that
the fact that the mother had broken up the home is one of the factors to be taken into consideration, while, in H. v. H.,
(1969) 1 WLR 208 the court said that, whether the home was broken up by the husband or wife or both of them, is of no
consequence whatever.
7 (1950) 1 All ER 1057.
1 (1951) 1 All ER 942.
2 (1954) 1 All ER 434.
3 (1955) 2 All ER 202.
1 (1955) 2 All ER 202.
3 (1956) 2 All ER 876.
1 (1956) 3 All ER 500.
2 (1869) 2 WLR 540 .

2 (1969) 2 WLR 540.
3 See para 2 of this commentary.
4 In re, L., (1962) 1 WLR 886, the court said that although the welfare of the child is the paramount consideration, it is not
the only consideration. Parental rights too should be given due weight.
Page 29 of 34
1 (1963) 3 WLR 357.
2 (1964) 2 WLR 840 .

3 (1970) 1 WLR 192.
4 (1963) 3 WLR 408.
5 (1966) 1 WLR 646.
1 (1966) 1 WLR 646.
2 The Guardianship Acts and the related statutes have now been consolidated under the Guardianship of Minors Act,
1971.
3 (1976) Fam 185.
4 Section 1.
5 Sections 86 and 87.
6 Such as the Domestic Proceedings and Magistrates’ Court Act, 1978.
7 Paras Diwan, Natural Guardians of Minors Children under Hindu Law, (1965) 5 Jaipur LJ 167.
1 Under section 9(1) only father or mother can apply for such orders.
2 Section 37.
3 There is hardly any argument before an Indian court where a counsel would not try to cite and a judge would not try to
rely on an English authority.
1 AIR 1914 PC 41 .
2 AIR 1924 Mad 45 [LNIND 1923 MAD 350].
3 AIR 1925 Mad 398 [LNIND 1924 MAD 287]. The only other judgment which takes this view in Re, Shanmugan, AIR
1954 Mad 377 [LNIND 1953 MAD 124].
4 AIR 1939 Mad 611 .
5 AIR 1936 Rang 67 : When Leach C.J., was a judge of the Rangoon High Court.
1 In Richard v. Richard, AIR 1955 Mad 451 [LNIND 1954 MAD 227], Ramaswami, J., without referring to any of the
earlier cases took this view.
2 AIR 1954 Mad 377 [LNIND 1953 MAD 124].
3 Pamela v. Patrick, AIR 1970 Mad 92 [LNIND 1968 MAD 173](98) (SB).
4 Sukhdeo Rai v. Ram Chandra, ILR (1924) 46 All 707, per Walsh A.C.J., and Neave, J. Mt. Siddiquinissa v. Nizamuddin,
AIR 1932 All 214, per Sulaman A..C.J. who followed ILR 46 all 707; and AIR 1914 PC 41 ; Ulfat Bibi v. Bafati, AIR 1927
All 518 ; Govind Parasad v. Ram Prasad, AIR 1935 All 939 (held that the application can be treated as one under sec.
25); Mt. Samlunissa v. Mt Saida Khatun, AIR 1944 All 202 ; Bhagwati v. Tara Chand, AIR 1957 All 126 [LNIND 1956
ALL 126]. The court said that natural guardian should be appointed guardian. In this mother was the applicant, father
being dead. The question whether father could be appointed therefore did not arise.
5 Rasulan v. Dilawar, AIR 1971 All 248 .
6 Mst. Teja Begum v. Ghulam Rasul, AIR 1925 Lah 250 . The court followed the decision in Annie Beasant, AIR 1914 PC
41 .
7 Raj Hemraj v. Magan Lal, ILR (1930) 54 Bom 560 ; Bai Tara v. Mohanlal Lalubhai, AIR 1922 Bom 405 the father could
not be appointed guardian though he could apply under section 25 for custody. The court relied on AIR 1914 PC 41 .
8 ILR 23 Cal 290.
9 AIR 1926 Cal 1193 .
10 Per Suharawardy, J.
11 AIR 1946 Cal 272 .
1 Ramjan Khan v. Marian Bibi, AIR 1923 Rang 120 ; the decision in the case overrules Po Cho v. Ma Nycin, 5 LBR 133,
where a contrary view was taken.
Page 30 of 34
2 AIR 1936 Rang 67 .

3 AIR 1925 Mad 398 [LNIND 1924 MAD 287].
4 AIR 1926 Cal 1193 .
5 Mt. Chandra Kuer v. Chotey Lal, AIR 1925 Oudh 282 ; see also Dhan Kumar v. Mohender, 1923 Nag 199, where a
similar view is taken.
6 ILR 39 Mad 473.
1 See also Subramanya v. Amrayee, 29 IC 740; Dholardas v. Sadumul, 32 SLR 215; Fatima Bibi v. Shaikh Peda, AIR
1941 Mad 944 [LNIND 1941 MAD 176].
2 AIR 1957 Mad 563 [LNIND 1956 MAD 155]; see also Kamalamua v. Laxminarayana Rao, AIR 1971 Mys 211 .
3 The influence of the early English decisions is apparent.
4 Sammunissa v. Saida Khatun, AIR 1944 All 202 ; Jamna Pd v. Mt. Panna, AIR 1960 All 285 . The Calcutta High Court
took this view in Bimla v. Bhagirath, 65 CWN 1138.
5 Fakhruddin v. Biro, AIR 1926 Lah 393 .
6 Rafiq v. Bashiran, AIR 1963 Raj 239 .
7 Dhan Kumari v. Mahendra, AIR 1963 Nag 199 .
8 Raghaviya v. Lakshmiah, AIR 1925 Mad 398 [LNIND 1924 MAD 287].
9 Mt. Siddiqunnissa v. Nizammuddin, AIR 1932 All 215 and Rafique v. Bashiran, AIR 1963 Raj 667, take the same view.
10 Raginald v. Sarojan, AIR 1969 Mad 365 [LNIND 1968 MAD 120].
1 AIR 1944 All 202 ; Wadia, J., of the Bombay High Court said that sec. 19 is controlled by sec. 17: AIR 1941 Bom 103 .
2 Section 13.
3 AIR 1961 Punj 51 .
4 Queen v. Nesbett Perry, OC 103; In re, Callor Nariuswamy, Mayne’ s PCS 391; In re, Hanumath Bose, 1 Hyde 111;
Reade v. Krishna, ILR (1886) 9 Mad 391 .
1 ILR (1915) 39 Mad 473 . But see, Muthuverrappa v. Ponuswami, (1912) 13 IC 16.
2 Huro Sundaree v. Joy Doorga, (1870) 4 BLR App 36; Brohmmojee v. Keshi Chandra, ILR (1882) 8 Cal 226 ; K. Sethi v.
Ramandi, ILR (1920) Mad 397 (FB); The view taken is that after the Guardian and Wards Act, 1890 there is no right to
file a civil suit for the enforcement of the right of guardianship or custody.
3 AIR 1929 Mad 33 .
4 AIR 1929 Mad 81 .
5 AIR 1935 Mad 363 [LNIND 1934 MAD 287]; See Muthuswami v. K.M. Chinna Muthuswami, AIR 1935 Mad 195
[LNIND 1934 MAD 290]; Polepalli, AIR 1935 Mad 568 [LNIND 1935 MAD 126]; In these cases also the leading
judgment is that of the Chief Justice. See also Pamela v. Patrick, AIR 1970 Mad 427 [LNIND 1969 MAD 192](DB).
6 Seeyati v. Ovikanath, AIR 1946 Mad 110 [LNIND 1945 MAD 216]; Kaliappa v. Valliammal, AIR 1949 Mad 608 ;
Richard v. Richard, AIR 1955 Mad 551 .
7 Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306 [LNIND 1949 MAD 128]; Medai v. Medai, AIR 1957 Mad 563
[LNIND 1956 MAD 155]; see also G.A. Agyadorai v. E.H.B. David, AIR 1960 Mad 519 [LNIND 1960 MAD 29];
Damodaran v. Sulochana, (1971) 1 MLJ 219 [LNIND 1970 MAD 168].
8 AIR 1966 Mad 179 [LNIND 1965 MAD 14].
1 AIR 1983 Mad 9 [LNIND 1981 MAD 319].
2 AIR 1959 AP 670 [LNIND 1958 AP 81].
3 See also Bandi v. Janne, AIR 1960 AP 516 [LNIND 1959 AP 182]; Sibani Banerjee v. Tiapan Kumar, AIR 1990 Cal 4
[LNIND 1989 CAL 82]; where this view has been reiterated.
4 AIR 1971 AP 134 [LNIND 1970 AP 26].
In the former case the father left the child after the death of the mother with maternal grandfather and did not take care of it.
In the latter case the child, a girl of 16 years was living with grandmother. The mother was leading immoral life.
Page 31 of 34
1 AIR 1981 AP 1 (case law has been reviewed).

2 AIR 1983 AP 106 [LNIND 1982 AP 231].
3 AIR 1927 All 458 .
4 (1926) Ch 676.
1 Sukhdeo v. Ram Chandra, AIR 1924 All 622 .
2 AIR 1919 All 49 .
3 AIR 1948 All 498 .
4 AIR 1940 All 239 . See also In re, Abdul Aziz, AIR 1927 All 458 .
5 This case may be contrasted with Sukhdeo v. Ram Chandra, discussed above.
6 Parmeshwari v. Empress, ILR 23 Cal 290.
7 This statement was quoted from Story. The instances given by Story were also quoted. They are: “When it is found that
a father is guilty of gross ill-treatment or cruelty towards them, or is in constant habit of drunkenness and blasphemy or
low and gross debauchery or he professes atheistical or irreligious principles, or his domestic associations are such as
to tend to corruption and contamination of his children, or he otherwise acts in a manner injurious to the morals and
interests of his children.
8 Walter v. Walter, AIR 1928 Cal 600, Story’ s in Jiwan Krishna Duita v. Sailendra Nath, AIR 1946 Cal 272 .
9 AIR 1942 Cal 215 .
1 AIR 1944 Cal 435 .
2 ILR (1949) 2 Cal 374 .
3 The Court exercised its inherent jurisdiction, as it felt that under the Act it has no power to give custody to a person who
was not a guardian.
4 AIR 1969 Cal 573 [LNIND 1969 CAL 59].
1 Interestingly both the judges said that under section 19, the father cannot be deprived of the guardianship of his
children above the age of 5. There is nothing in section 19 which says that father is not entitled to the guardianship of
his minor children below the age of five. It seems that in background in the mind of the judges was section 6(c) of the
Hindu Minority and Guardianship Act which lays down that ordinarily the mother would have the custody of her minor
children upto the age of five.
2 However see Bimla Bala v. Bhagirathi, (1961) 65 CWN 1138 for a contrary view. But then the court did not consider the
application of section 13 of the Act of 1956.
3 AIR 1981 Cal 701 : ILR (1980) 1 Cal 727.
4 Harbans Rai v. Mst. Biro, AIR 1926 Lah 393 ; Manmohani v. Hari Prasad, 5 PLR 415; Gulam Hasan v. Ida, AIR 1937
Lah 481 ; Beasant Kaur v. Gian Singh, AIR 1939 Lah 359 .
5 Beasant Kaur v. Gian Singh, AIR 1939 Lah 359 .
6 AIR 1952 Punj 129 .
7 AIR 1956 Punj 234 .
1 AIR 1960 Punj 326 .
2 AIR 1956 Punj 234 .
3 AIR 1961 Punj 331 .
4 The marriage being before the Hindu Marriage Act section 16 did not apply and children of void marriage remain
illegitimate.
5 AIR 1961 Punj 51 .
1 ILR (1907) 32 Bom 50 .
2 AIR 1932 Bom 405 .
1 AIR 1941 Bom 103 .
Page 32 of 34
2 Saraswatibai v. Shripad, AIR 1941 Bom 103 .

3 See Munni Bai v. Dhansukh, AIR 1959 Bom 104
4 AIR 1993 Bom 232 [LNIND 1992 BOM 384].
5 AIR 1970 Ker 1 [LNIND 1969 KER 13].
6 This case has been more fully discussed in para 2 of the commentary on this section.
7 AIR 1959 Ker 403 [LNIND 1958 KER 256].
8 AIR 1959 Ker 396 [LNIND 1958 KER 277].
9 AIR 1957 Trav-Co. 39.
1 AIR 1988 Ker 36 .
3 AIR 1961 J&K 5 .
1 AIR 1971 J&K 43 ; see also Md. Ramzan v. Taja, AIR 1983 J&K 70 .
2 Surat Ram v. Mst. Nardu, AIR 1953 HP 50 .
3 Nibbet v. Nibbet, AIR 1935 Oudh 133 ; Mt. Saddiq v. Wafati, AIR 1948 Oudh 133 ; See also Ma Juli v. Moola, AIR 1933
Rang 201 .
4 AIR 1966 Ori 60 [LNIND 1965 ORI 48].
5 AIR 1985 Ori 65 [LNIND 1984 ORI 7].
6 AIR 1961 Raj 30 [LNIND 1959 RAJ 131].
7 AIR 1961 Raj 256 (this was a case under section 26, the Hindu Marriage Act).
8 AIR 1973 Raj 93 .
1 AIR 1980 Raj 64 .
2 AIR 1954 MB 43 .
3 AIR 1966 MP 189 [LNIND 1965 MP 69].
1 AIR 1969 MP 23 [LNIND 1968 MP 56].
2 AIR 1964 Pat 505 .
3 AIR 1969 Del 283 [LNIND 1969 DEL 38].
4 AIR 1983 Del 120 [LNIND 1982 DEL 348].
5 (1933) Ori LJ 794.
1 AIR 1986 Del 149 [LNIND 1985 DEL 137]; See also Dolku v. Nihal, AIR 1992 HP 3 [LNIND 1990 HP 9].
2 Yogesh Kumar Gupta v. M.K. Aggarwal, AIR 2009 Utr 30 .
3 Anjali Kapoor v. Rajiv Baijal, AIR 2009 SC 2821 [LNIND 2009 SC 901].
4 In England the beginning was made with the Poor Laws Acts then were passed the Summary Jurisdiction (Separation
and Maintenance) Act, 1895-1949; The Guardianship and Maintenance Act, 1951; the National Assistance Act, 1948
and followed by other statutes.
5 Hindu Adoption and Maintenance Act, 1956.
6 Section 4, the Criminal Procedure Code.
7 See Porter v. Porter, 79 Iowa 151, where the entire law has been surveyed.
8 In the beginning the Southern States having the civil law system recognized the principle of maintenance, while the
Northern States having common law system did not recognize it as a legal obligation. But now in most of Northern
States, maintenance of children is recognized as a legal obligation of parents.
9 For instance, see the French Civil Code, Article 205; the German Civil Code, sections 1601-15.
Page 33 of 34
1 This has been done by a statute of 1957 which amends the Civil Procedure Code and adds three new sections: secs.
1960, 1960-A, and 1960-B.
2 Code of 1918 RSFSR, art 138; 1926 Code of RSFSR, Art. 42.
3 Polish Code of Family Law 1964, Art. 129.
4 At common law the doctrine was that since the father is the natural guardian, of his children, he has absolute rights of
custody and upbringing and of controlling the religion and education of his children. Upto 1839 this continued to be the
position; see King v. De Mannerville, (1804) KB 5 East 221: 7 RRR 693; R. v. Henrietta Lavina Greenhill, (1836) 4
Ad&El 624: 44 RR 440 and De Mannerville v. De Mannerville, (1804) 10 Vessy. 52. In Takbat v. Earl, of Shrewsbury 48
RR 203 the mother was even denied access and it was said that she had neither a right to custody nor of access. It
was Talford’ s Act, 1839 which granted right of custody and access to mother to children upto the age of seven.
Although the Chancery Courts have declared the principle of welfare of children, they were slow to interfere; see In re,
Curtis, 118 RR 844. Then came the Guardianship of Infants Act, 1886. And we find that by 1893 the Chancery Courts
gave up their hesitation in applying the welfare rules. In re, Mcgrath, (1893) 1 Ch 786 , Lindley, L.J., said: “The
Dominant matter for the consideration of the court is the welfare of the child.” Lindley, L.J. reiterated his views in In re,
A and B, (1897) 1 Ch 786.
It should be noted that the matrimonial court has from beginning applied the welfare principle: see W v. W, (1926) P 111;
Allen v. Allen, (1948) 2 All ER 413; Willoughby v. Willoughby, (1950) P 184; Wakeham v. Wakeham, (1954) 1 WLR
366.
5 Section. 1:”1........the court in deciding the question shall regard the welfare of the infant as the first and paramount
consideration..........” “This provision has been repeated in the Guardianship of Minors Act, 1971.
1 (1926) Ch 676.
2 (1962) 2 All ER 10.
3 In re, A., (1955) 2 All ER 202, per Evershed, MR; In re, M., (1955) 2 All ER 911. In re, O., (1964) 2 WLR 840 .
4 (1963) Ch 315.
5 (1926) Ch 676.
6 No. 36-677 (1966) 9 Sud Prak SSR 4.
1 For instance In re, Wimcom, 144 RR 257, Vice Chancellor, Sir, W. Page rejecting the application of the mother for
access said that such a course would subject the child to two influences, that of the father and mother and it would not
be in the interest of the child.
2 (1944) 6 Sud Prak SSSSR 31.
3 (1893) 1 Ch 786 . The learned judge said: “But the welfare of the child is not be measured by money only, nor by
physical comforts only. The moral and religious welfare of the child must be considered as well as its physical well
being. Nor can the ties of affection disregarded.”
4 For instance, see Allen v. Allen, (1948) 2 All ER 413, per Writesley and Evershed, LJJ. This case was followed in some
latter cases, for instance Willoughby v. Willoughby, (1950) P. 184 and Wakeham v. Wakeham, (1954) 1 WLR 366.
Proviso to sec. 6 of the Hindu Minority and Guardianship Act, 1956, expressly lays down that custody of a child upto the
age of five should ordinarily go to the mother. The Muslim also recognized this principle and in fact it seems to be the
only ancient system of law which deals with the question of custody (hizanat) separately and expressly lays down that
the hizanat of the children of tender age should go to the mother; though there is a difference of opinion among the
various schools of Mohammedan law as to what is ‘tender age’.
5 (1939) 14 Sov Yust 70.
6 (1946) 4 Sud Prak SSSR 7.
7 The judgment in English case, In re, W., (1963) 2 WLR 1471 may also be looked into.
8 AIR 2001 SC 2179 [LNIND 2001 SC 1001].
1 Article 44 of the Soviet Family Code lays down the welfare of children and adjudication in respect to children. The
English law uses the words, ‘first and paramount consideration,’ though by judicial interpretation it is now coming to the
position; for instance see Danckerts L.f’s observation is (1963) Ch. 315.
2 In re, K., (1963) 3 WLR 408.
3 In re, K., (1963) 3 WLR 435 . Lord Evershed said: “The jurisdiction is not only ancient but it is also surely very special
the extent and application of the rules of natural justice must be applied and qualified accordingly. The judges must
Page 34 of 34
exercise the jurisdiction, act judicially, but the means whereby his conclusion is arrived at must not be more important
than the end.” (emphasis writer’s).
4 Article 97 of the Polish Family Code specifically lays down that disputes in respect of children are to be solved by the
guardian court in non-contentious proceedings.
5 The provision was first enacted in the Matrimonial Proceedings (Children) Act, 1958 and has been reenacted in the
consolidating statute, the Matrimonial Causes Act, 1965 and then in the Matrimonial Causes Act, 1971.
1 Pursuant to the Report of the Royal Commission on Marriage and Divorce, 1956, several statutes were passed to give
effect to some of the recommendations of the Commission.
2 The provision has been now enacted in the Matrimonial Causes Act, 1973.
3 Sec. 2 of the Act.
4 Under the Act the Matrimonial Court has been given vast powers in respect to children.
5 Section 6, the Matrimonial Proceedings (Children) Act, 1958.
6 Matrimonial Proceedings (Children) Act, 1958, sec. 5.
7 Matrimonial Proceedings (Children) Act, 1958, sec. 3.
It may be interesting to note that none of the Indian statutes dealing with the subject, including the Hindu Marriage Act,
1955, contain any of these provisions, despite the fact that our matrimonial law has drawn heavily from the English
Matrimonial law.
8 Such, as, for instance, supervision and control of parents by court, granting tax-remission to parents, or prosecution for
contempt in case of disobedience to the order of the court by the parent in respect of children.
1 Section 12, the Children Act, 1948. We too have the Children Act, 1960, but that does not go very far.See also the
English Statute the Children Act, 1975.
2 Law in a Changing Society, 228.
3 The post Revolution experiment in the Soviet Union in this field is a pointer that family cannot be replaced. The Soviet
law no longer recognizes de facto marriages. Divorce is also not so easy.
4 The term, children is here used in a very wide sense as to include all children living in the family.
5 The family may consist of father or mother or both, as in the modern law it is possible a virgin or bachelor may have
children. This is possible by adoption. In some countries even illegitimate children are accorded full recognition and no
social stigma is attached to illegitimacy.
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Date and Time: Thursday 9 June 2022 12:15:00 PM IST

Job Number: 172824350

1. 1. Short title and extent.—

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

1. Short title and extent.—

It has been made applicable to:

The Act applies to pending cases.4

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

(1) This Act applies—

(a) Follower of Hindu Religion

(a) Conversion to Hinduism, Jainism, Buddhism and Sikhism

A person may be a Hindu by birth:

(a) When both Parents are Hindus

However, Hindu law applies to scheduled castes and non-scheduled tribes.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

(a) Custom should be Ancient and Invariable

(a) Local custom,

(a) Local Custom

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

3 Bissi v. Hira Singh, 75 PR 1917; Dalipa v. Suraj Kaur, 48 PR 1916.

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

4. Overriding effect of the Act.—

Under clause (a), the Act supersedes:

(i) any text, rule or interpretation of Hindu law, and

Nature of the institution of khana-damad.—The khana-damad, or ghar-jawai, or resident son-in-law “is a

It is clear that this type of adoption stands abrogated by the Act.4

A. A married child can be adopted if custom permits such an adoption, and

10. Vested rights

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

6 Kartar Singh v. Surjan Singh, cited above.

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

5. Adoptions to be regulated by this Chapter.—

Sections 6 to 17 contain provisions as to adoptions. This group of sections lay down:

(a) who can adopt,

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

6. Requisites of a valid adoption.—

2. Clause (i): Capacity and Right of Adopter to Adopt

Clause (i), unlike clause (ii) lays down two conditions:

(a) Adopter should have capacity to adopt, and

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 First part of the proviso to section 7.

Law of Adoption, Minority, Guardianship and Custody

PART I THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[21st December, 1956]

7. Capacity of a male Hindu to take in adoption.—

(a) If the wife has ceased to be a Hindu,

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Mandakini v. Adinath Dey, ILR 18 Cal 69.