DR. B.R.

AMBEDKAR NATIONAL LAW UNIVERSITY

SONEPAT

ASSIGNMENT: FAMILY LAW-II

A CASE ANALYSIS ON ADOPTION UNDER HINDU

ADOPTION AND MAINTENANCE ACT 1956:
WITH REFERENCE TO

Smt. Vijayalakshmamma v. B. T. Shanker, AIR 2001 SC

1424

SUBMITTED TO: SUBMITTED BY: AAKANKSHA GOEL

DR. AMIT GULERIA SECTION: A

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(ASST. PROFESSOR, LAW) ROLL NO: 2001002

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT..........................................................................................................3
THE CAPACITY OF HINDU FEMALE TO ADOPT A CHILD...........................................5
DETAILS OF THE CASE.........................................................................................................6
FACTS OF THE CASE............................................................................................................6
ISSUES RAISED BEFORE THE COURT..............................................................................7
CONTENTIONS OF THE PLAINTIFF..................................................................................7
CONTENTIONS OF THE DEFENDANTS............................................................................8
OBSERVATIONS AND DECISIONS OF THE COURT.......................................................9
CONCLUSION........................................................................................................................10
BIBLIOGRAPHY....................................................................................................................11

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 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Dr. Amit

Guleria, who gave me the opportunity of preparing a case analysis on adoption
under Hindu Adoption and Maintenance Act of 1956.

I would like to thank him for all the help and support that he provided to me in
completing the assignment. This really helped me in enhancing my
knowledge about the concept of adoption under Hindu Law.

Thankyou

AAKANKSHA GOEL

B.A.LLB.(Hons.)

Batch 2025

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 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.

ADOPTION UNDER THE ACT

The Adoption and Maintenance Act of 1956 is the principal act governing adoption law and
comprises plenty of provisions. A lawful ability and right of a male and female Hindu to
adopt a son or daughter who must be a 'Hindu,' a phrase to be interpreted in light of the broad
definition of the act. It also deals with the subjects of persons who may give in adoption and
persons who may be taken in adoption. It also stipulates those specific types of rituals must
be observed for the sake of adoption.
Section 5 of the Act states that after the effective date of the Act, no adoption can be made
without following the requirements of the Act, and any adoption made after that date will be
null and void if it violates any of the Act's provisions. The status or rights of any of the
parties are unaffected by a void adoption. It gives the adopted boy or girl in the adoptive
family no legal rights. In addition, the adoptee retains all of his or her biological family's
rights.
The provisions related to the legality and effect of adoptions contained in this Act have no
impact on adoptions made before the Act took effect on December 21, 1956. Their legality
and impact must be evaluated by the law as it existed before to the Act's enactment.
Prior to the enactment of the Hindu Adoption and Maintenance Act in 1956 only a son could
be adopted. Adoption of a female was not permissible except under custom which had to be
established. Even if the name of the alleged adoptive father is given as the father of the girl in
the school certificate or other documents that would not establish that there was a legal
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adoption unless a custom permitting adoption of a female child is pleaded and proved. This
was a case

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(Lalitha v.Parameshwari1) where adoption of a female child was alleged to have taken place
in 1946 i.e., prior to the Act.

Before delving into the case analysis of Smt. Vijayalakshmamma v. B. T. Shanker, AIR
2001 SC 1424, let us first understand the concept of capacity of Hindu female to adopt a
child.

THE CAPACITY OF HINDU FEMALE TO ADOPT A CHILD

Section 8 of the Hindu Adoption and Maintenance Act, 1956 deals with the capacity of a
Hindu Female to adopt a child. It states three conditions for a female Hindu to be capable to
adopt a child:

 She should be of sound mind.

 She should be a major.

 She should not married, or if married, whose marriage has been dissolved or
whose husband is dead or has completely and finally renounced the world or has
ceased to be a Hindu or is of unsound mind.
In other words, an adult Hindu female who is of sound mind and is not married has the
capacity to adopt a child under this act. Further, if the Hindu female is married, then either of
the following should condition should be fulfilled to become capable to adopt:

 a divorcee or

 a widower or

 Whose husband has renounced the world or

 Whose husband has ceased to be a Hindu or

 Whose husband is of unsound mind

If either of the above-mentioned conditions is fulfilled then a married Hindu female is
capable to adopt a son or daughter under the Hindu Adoption and Maintenance Act.

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1
2001 Mad 363

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A Hindu female who adopts a child under this act should follow certain conditions for
adoption. If a son is being adopted, the adoptive mother should not have a Hindu son,
grandson or great-grandson at the time of adoption. Similarly, if a daughter is being adopted,
the adoptive mother should not have a Hindu daughter, granddaughter, or great-
granddaughter at the time of adoption. Further, if a male child is being adopted by a Hindu
female, then the adoptive mother should be at least twenty-one years older than the child.
These provisions are stated under section 11 of the act.

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.

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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

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Nanjappa Rao and that he had been managing all the properties thereafter.

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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.

2
(1912) ILR 39 Cal 582
3
28 Mad LJ 72: (AIR 1915 Mad 775)
4
45 Mad 266: (AIR 1922 Mad 106 (2)
5
1939-2 Mal LJ 805: (AIR 1940 Mad 5)(O)

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 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.”

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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.

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 BIBLIOGRAPHY
Books:

 Poonam Pradhan Saxena, Family Law-I (LexisNexis, Delhi, 2022).

 Dr. Paras Diwan, Family Law, (Allahabad Law Agency, India, 2021).

Statues:

 Hindu Adoptions and Maintenance Act, 1956

Case Laws:

 Ranjit Lal V. Bijoy Krishna, (1912) ILR 39 Cal 582

 Chukkamma V. Punnamma, 28 Mad LJ 72: (AIR 1915 Mad 775)
 Muthuswami Naicken V. Pulavaratal, 45 Mad 266: (AIR 1922 Mad 106 (2)
 Byra Goudu V. Muniammal, 1939-2 Mal LJ 805: (AIR 1940 Mad 5)(O)
 Lalitha v.Parameshwari, 2001 Mad 363
Websites:
 All you need to know about Adoption and Maintenance under Hindu laws, available
at: https://blog.ipleaders.in/hindu-adoption-maintenance/ (last visited on 28 April,
2022).

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