Legal Research and writing

Assignment: Research proposal

SEMESTER III

SUBMITTED TO:

Mrs MEDHA SINGH MA’AM

SUBMITTED BY:

ADITYA KHANDELWAL (21BBL005)

 INTRODUCTION
For Hindus, the notion of sonship is particularly significant because they believe it is vital for
their son to exist as a putre (liberator from hell) and to maintain the lineal order. They adopt a
boy from a different family and give him the status of a real son in order to assure the
existence of a son. The notion of adoption is supported by both religious and societal
authority. As a result, adoption is the gift of a son by a family to another family as a substitute
for a family's inability to have a male child, which has religious sanctity and supports the
Hindu belief in reincarnation. Adoption can be defined as follows, according to Mulla, a
famous jurist: Adoption is the legally recognised admission of a stranger to the rights and
advantages of a child by birth. The adopted child is then treated as if he were born into a new
family, with new rights, responsibilities, and status, and his links to the original family are
terminated.
 DETAILS OF THE CASE
Deciding court – Honourable Supreme Court of India

Plaintiff – T.L. Vishwanatha Iyer, Sr. Adv., G.V. Chandrashekar and P.P. Singh, Advs
Defendant – Dr. Sushil Balwada and Devendra Singh, Adv

Citation – AIR 2001 SC 1424

Bench – D.P. Mohapatra and Doraiswamy Raju, JJ.

Date of judgement – 26 March 2001

FACTS OF THE CASE

The respondent-plaintiffs case is that he was adopted on 22.6.1970 by Sharadamma, wife of
A.T. Nanjappa Rao, who died in the year 1968, leaving behind him the suit schedule
properties as well as two widows, Smt. Sharadamma, the first wife, and Smt. Neelamma, the
second wife, in accordance with community customs.

Nanjappa Rao's elder brother's kid was adopted by both widows on the same day, and the
factum of adoption was also established by an Adoption Deed made on the same day, making
him the absolute owner of the suit schedule property.

However, the junior widow, in connivance with another of Nanjappa Rao's brothers, B.S.
Krishnaoji Rao and his wife, began causing problems for the plaintiff by projecting a claim of
adoption of their daughter Vijayalakshmamma in the year 1970 when she was nine years old,
but reduced into writing and affirmed under a registered deed dated 26.3.1984, and further
said to be fortified by a Will dated 28.3.1984 jointly.
The respondent filed Original Suit No.83/87, requesting a decree declaring that he is the only
adopted son of late Nanjappa Rao and for partition of his 3/4th share in the suit schedule
properties by metes and bounds, as well as delivery of separate possession of his share, after
asserting a claim for partition of his share of the properties by issuing a notice prior to the
filing of the suit.
The appellants were aggrieved and filed an appeal with the High Court, where the Division
Bench upheld the learned Trial Judge's conclusions on the point, as previously stated.
Thereafter, the adoption of the plaintiff by Sharadamma without the agreement of the second
wife had no bearing on the case, according to the high court.

The plaintiff's adoption by Sharadamma alone without the approval of the second wife had no
effect on Neelamma's portion of the properties, and the plaintiff would be entitled to inherit
just the share of late Sharadamma alone, according to the high court.

To that end, the Trial Court's judgement and decree were amended into one for a half-share in
favour of the plaintiff, as opposed to the Trial Court's 3/4th-share award. The appellants have
petitioned this Court because they are dissatisfied with the partial remedy provided.

Aggrieved from the judgement the appellants (defendants) have filed the above appeal against
the judgment and decree dated 29.5.1998 of a Division Bench of the Karnataka High Court in
R.F.A. No.14 of 1989

ISSUES RAISED BEFORE THE COURT

 Whether the plea on behalf of the appellants that the proviso and Explanation thereto
engrafted in Section 7 can and also should be dovetailed or read into Section 8?
 How the adoption could or ought to be made when a Hindu male die leaving behind
more than one widow?

CONTENTIONS OF THE PLAINTIFF

The plaintiff claimed that the plaintiff, the son of Nanjappa Rao’s elder brother, came to be
adopted by both the widows and the factum of adoption was also evidenced by an Adoption
Deed written on the same day and, therefore, he became the absolute owner of the suit
schedule properties. Further it averred that the adoption so made was claimed to have been
acted upon by entering the name of the plaintiff in the revenue records as a son of late
Nanjappa Rao and that he had been managing all the properties thereafter.

Learned counsel for the appellant drew on a vast list of precedents wherein the preferential
right of the senior widow to take a boy in adoption was recognised like -
  Ranjit Lal V. Bijoy Krishna2
 Chukkamma V. Punnamma3
 Muthuswami Naicken V. Pulavaratal4
 Byra Goudu V. Muniammal5
Referring to the above-mentioned cases, a different concept can be established that a Hindu
who has two or more wives may adopt a boy, or one of his widows may adopt a boy after his
death. In such circumstances, where there was a dispute between two or more wives or
widows, courts were called upon to judge which of them had the preferential right. Invariably,
they accepted the idea that the dharmapatni, the elder of the two, is allowed to adopt a son
unless the husband directly or by necessary inference directs otherwise. When the senior
widow's preferred privilege is conceded, the junior widow is unable to adopt a son.

CONTENTIONS OF THE DEFENDANTS

The defendants submitted that there was no adoption of the plaintiff by Sharadamma as
claimed; that the unregistered deed of adoption was a fabricated one and no rights can be
claimed on the basis of such a document.

The further stand was that the adoption of the first defendant as evidenced by the registered
document dated 26.3.1984 and the Will dated 28.3.1984 fortified the claim of adoption
projected by the defendants and at no point of time the plaintiff was the owner of the
properties in question.

Defendants (adopted daughter and junior widow) denied all of the plaintiffs' claims, and it was
suggested that, in any case, because the second defendant, late Nanjappa Rao's junior widow,
had not given her consent or participated in the so-called adoption of the plaintiff by
Sharadamma, the senior widow, the plaintiff's adoption, if at all, could be by Sharadamma
alone, and not for or on behalf of her husband, late A. T. Nanjappa Rao.
 OBSERVATIONS AND DECISIONS OF THE
COURT
In this case, Doraiswamy Raju, J. for himself and on behalf of D.P. Mohapatra J. Pronounced
the judgment. It stated that a female unmarried and if married but satisfying the requirements
of clause (c) of S. 8 has a right to adopt subject to the other provisions of Chapter 11

The court noted that unlike the position in the old Hindu Law a Hindu female is not only
adopting for the husband but is also eligible and entitled to adopt a son or a daughter in her
own right and to herself also if unmarried. It has become necessary for the Legislature to
enact a fiction to the extent that the 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, with certain
enumerated consequences also following from the same, one of such being that the adopted
child shall not divest any person of any estate which vested in him or her before the adoption;

Furthermore ,the honourable Supreme Court noted that Section 7 of the Act puts restrictions
on the exercise of the power and right of the male Hindu to adopt a son as the requirement of
consent of widow or widows (living at the time of adoption) subject to Section 7 of the Act
puts restrictions on the exercise of the power and right of the male Hindu to adopt a son as the
requirement of consent of widow or widows (living at the time of adoption) subject to other
disqualifying conditions mentioned under the Act. This may be noted that though the husband
is required under law to obtain consent from his wife or wives, the wife is no longer required
to have the delegated authority of the deceased husband or the consent of the sapindas as per
S. 8 of the Act.

The court also observed that the Parliament has consciously and deliberately effected certain
vital and substantial changes in the personal law of the Hindus on several branches including
the law of adoptions and now after passing the Hindu Succession Act, 1956, sons and
daughters are equal in succession. So, now there is no longer any justification for allowing a
husband to prevent his wife from taking a child in adoption after his death. The adoption
made by a Hindu widow will hereafter be in her own right.

“To subject the exercise of power by the senior widow to adopt, conditioned upon the consent
of the junior widow where a Hindu male died leaving behind two widows with no progeny of
his own, would render the exercise of power more cumbersome and paradoxical, leaving at
times, such exercise of power to adopt only next to impossibility.”
For all the reasons stated above, the court found no error of law or infirmity of any kind in the
ultimate decision of the High Court to call for any interference at our hands. The appeal failed
and dismissed and no costs were granted.

CONCLUSION
To conclude by analysing the case, while the Apex Court correctly referred to Sections 7, 8,
and 12 of the Act, one aspect of law was overlooked, notably legal position of the second wife
in this case, whose marriage was solemnised before and after the passage of the Hindu
Marriage Act, 1955, despite the fact that the explanation of adjoining S. 7 of the Act states
that "the consent of all the wives is necessary." This requirement, I believe, is only applicable
to marriages performed prior to the passage of the Hindu Marriage Act, 1955, because after
that, a marriage performed in violation of Section 5(i), i.e., "neither party has a spouse leaving
at the time of the marriage," shall be declared null and void at the option of either party
against the other. In any scenario, if the junior wife's marriage is not recognised by the law,
her assent to the senior wife's adoption of a son is null and void. Because the issueless junior
wife has no right of inheritance under the Hindu Succession Act 1956, her permission is not
necessary to maintain her proprietary right. In the case of Smt. Vijayalakshmamma v. B. T.
Shanker, AIR 2001 SC 1424, the Supreme Court took a more pragmatic approach than in
earlier judgements, holding that an adoption by a widow without the agreement of a junior
widow is not unlawful. The Supreme Court's explanation on the question of junior widow
consent, on the other hand, is a significant step forward in the evolution of adoption
legislation. In the context of marriage law as a whole, this judicial decision will instil in
society a desire to define its future.