Brajendra Singh v. State of M.P.

FACTS

● Mishri Bai had returned to her parent’s house after being abandoned by her husband,
Padam Singh, soon after their marriage, because of her physical disability. She never
returned to her in-laws’ house.
● Her parents had granted her a 32-acre plot of land from their agricultural holdings for her
subsistence. In 1970, after almost 22 years of her marriage, Mishri Bai claimed to have
adopted the appellant, Brijendra Singh.
● Mishri Bai was served a notice showing that her holdings of agricultural land exceeded
the prescribed limit.
● Mishri Bai filed a reply, claiming that Brijendra Singh is her adopted son and that the two
of them formed a joint family, giving them the right to keep 54 acres of land. In
December 1981, the Sub-Divisional officer dismissed the adoption argument, citing that
the adoptive father’s name was not registered in educational institution records.
● Mishri Bai filed a civil suit seeking a declaration that Brijendra Singh is her adopted son
and the court ruled in her favour. She executed a registered will on July 19, 1989,
bequeathing all of her assets to Brijendra Singh. Mishri Bai passed away in 1989.

ISSUES: Was the adoption of Brijendra Singh by Mishri Bai legally valid?

LEGAL: Legal provision: :

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.
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.

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.

JUDGMENT

1.It is to be noted that in the suit there was no declaration sought for by Mishri Bai either to the
effect that she was not married or that the marriage was sham or that there was any divorce. The
stand was that Mishri Bai and her husband were living separately for very long period.

section 8 of the Act reads as follows: “8. Capacity of a female Hindu to take in adoption - Any
female Hindu – (a) who is of sound mind, (b) who is not minor, and (c) who is not married, or if
married, whose marriage has been dissolved or whose husband is dead or has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind, has capacity to take a son or daughter in adoption
2. We are concerned in the present Clause (c) of section 8. It is now permissible for a female
Hindu who is of sound mind and has completed the age of 18 years to take a son or daughter in
adoption to herself in her own right provided that (a) she is not married; (b) or is a widow; (c)
or is a divorcee or after marriage her husband has finally renounced the world or is ceased
to be a Hindu or has been declared to be of unsound mind by a court having jurisdiction to
pass a declaratory decree to that effect. It follows from Clause (c) of Section 8 that Hindu wife
cannot adopt a son or daughter to herself even with the consent of her husband because the
Section expressly provides for cases in which she can adopt a son or daughter to herself
during the life time of the husband. She can only make an adoption in the cases indicated in
Clause (c).

It is important to note that Section 6(1) of the Act requires that the person who wants to adopt a
son or a daughter must have the capacity and also the right to take in adoption. Section 8 speaks
of what is described as 'capacity'. Section 11 which lays down the condition for a valid adoption
requires that in case of adoption of a son, the mother by whom the adoption is made must not
have a Hindu son or son's son or grandson by legitimate blood relationship or by adoption living
at the time of adoption. It follows from the language of Section 8 read with Clauses (i)& (ii)
of Section 11 that the female Hindu has the capacity and right to have both adopted son
and adopted daughter provided there is compliance of the requirements and conditions of such
adoption laid down in the Act. Any adoption made by a female Hindu who does not have
requisite capacity to take in adoption or the right to take in adoption is null and void. It is clear
that only a female Hindu who is married and whose marriage has been dissolved i.e. who is a
divorcee has the capacity to adopt.

3. Admittedly in the instant case there is no dissolution of the marriage. All that the evidence led
points out is that the husband and wife were staying separately for a very long period and
Mishri Bai was living a life like a divorced woman. There is a conceptual and contextual
difference between a divorced woman and one who is leading life like a divorced woman.
Both cannot be equated. Therefore in law Mishri Bai was not entitled to the declaration sought
for. Here comes the social issue. A lady because of her physical deformity lived separately from
her husband and that too for a very long period right from the date of marriage. But in the eye of
law they continued to be husband and wife because there was no dissolution of marriage or
a divorce in the eye of law.Brajendra Singh was adopted by Mishri Bai so that he can look after
her. There is no dispute that Brajendra Singh was in fact doing so. There is no dispute that the
property given to him by the will executed by Mishri Bai is to be retained by him. It is only the
other portion of the land originally held by Mishri Bai which is the bone of contention.

4. Section 5 provides that adoptions are to be regulated in terms of the provisions contained in
Chapter II.
 - Section 6 deals with the requisites of a valid adoption. Section 11 prohibits adoption; in
case it is of a son, where the adoptive father or mother by whom the adoption is made has
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.
- Prior to the Act under the old Hindu law, Article 3 provided as follows: 3. (1) A male
Hindu, who has attained the age of discretion and is of sound mind, may adopt a son to
himself provided he has no male issue in existence at the date of the adoption. (2) A
Hindu who is competent to adopt may authorize either his (i)wife, or (ii) widow (except
in Mithila) to adopt a son to himself. 12.
- Therefore, prior to the enactment of the Act also adoption of a son during the
lifetime of a male issue was prohibited and the position continues to be so after the
enactment of the Act. Where a son became an outcast or renounced the Hindu religion,
his father became entitled to adopt another.
- The position has not changed after the enactment of the Caste Disabilities Removal Act,
as the outcast son does not retain the religious capacity to perform the obsequial rites.
- In case parties are governed by Mitakshara law, additionally adoption can be made if the
natural son is a congenital lunatic or an idiot..
- The Privy Council's decision in Amarendra Man Singh case has reiterated the
well-established doctrine as to the religious efficacy of sonship as the foundation of
adoption. The emphasis has been on the absence of a male issue.
- An adoption may either be made by a man himself or by his widow on his behalf with his
authority conveyed therefore. The adoption is to the male and it is obvious that an
unmarried woman cannot adopt, for the purpose of adoption is to ensure spiritual benefit
for a man after his death and to his ancestors by offering of oblations of rice and libations
of water to them periodically. A woman having no spiritual needs to be satisfied, was not
allowed to adopt for herself. But in either case it is a condition precedent for a valid
adoption that he should be without any male issue living at the time of adoption

5. A married woman cannot adopt at all during the subsistence of the marriage except when 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.

- If the husband is not under such disqualification, the wife cannot adopt even with
the consent of the husband whereas the husband can adopt with the consent of the
wife.
- This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu
cannot adopt except with the consent of the 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 ofunsound mind.
- It is relevant to note that in the case of a male Hindu the consent of the wife is necessary
unless the other contingency exists. Though Section 8 is almost identical, the consent of
 the husband is not provided for. The proviso to Section 7 imposes a restriction in the right
of male Hindu to take in adoption.
- In this respect the Act radically depicts from the old law where no such bar was laid
down to the exercise of the right of a male Hindu to adoptoneself, unless he dispossess
the requisite capacity.
- As per the proviso to Section 7 the wife's consent must be obtained prior to adoption and
cannot be subsequent to the act of adoption.

6. . Learned Counsel for the appellant submitted that in any event, the land which is declared to
be in excess of the prescribed limit vests in the Government to be allotted to persons selected by
the Government.

- It was submitted that in view of the peculiar background, the Government may be
directed to consider the appellant's case for allotment ofthe land from the surplus land so
that the purpose for which adoption was made and the fact that the appellant nourished a
crippled lady treating her to be his own mother would set a healthy tradition and example.
We express no opinion in that regard. It is for the State Government to take a decision in
the matter in accordance with law.
- But while dismissing theappeal, we permit the appellant to be in possession of land for a
period of six months by which time the Government may be moved for an appropriate
decision in the matter. We make it clear that by giving this protection we have not
expressed any opinion on the acceptability or otherwise of the appellant's request to the
State Government to allot the land to him. 21.The appeal is dismissed subject to the
aforesaid observations.

DECISION

The Supreme Court ruled that a married Hindu woman cannot adopt a child without her
husband’s consent, even if the couple is separated. The Court while dismissing the appeal
permitted the appellant to remain in possession of the land for six months before the state
government took action.

Re: Adoption of Payal @ Sharinrr Vinay Pathak and his wife Sonika Sahay

FACTS
Both of them are actors by profession with two young children to look after. Both of them have a
daughter, who was born on 4th February, 2003.

ISSUE
The issue which arises before the Court is as to whether a Hindu couple governed by the Hindu
Adoptions and Maintenance Act, 1956, with a child of their own can adopt a child of the same
gender under the provisions of the Juvenile Justice Act of 2000.

● In the case -Court laid down that when a child to be adopted falls under Section
41(2) and is surrendered, abandoned or orphaned, or under Section 2(d) of the JJ
Act and is in need of protection and care, the prohibitions of Section 11(i) and (ii)
of the HAMA would not apply.
● In furtherance of the legislative policy of rehabilitation and reintegration of such
children into society, Section 41(6) of the JJ Act provides that persons may adopt
a child of the same sex notwithstanding their marital status or the number of
biological daughters or sons they had.
● Furthermore, if provisions of the JJ Act were inconsistent with that of HAMA, the
former would prevail as it was enacted subsequently. The same principles were
reaffirmed in the case of Rajan Mittal and Another v Nari Niketan Trust (Regd.)
Nakodar Road, Jalandhar, wherein the Court opined that the HAMA and JJ Act
must be harmoniously construed.
● In the case of The Secretary, Subhadra Mahatab Seva Sadan of Kolathia and
Another v State of Orissa[3]the Court had held that the District Court had failed
to see that the petitioners had sought an order for adoption under the JJ Act
instead of the HAMA. Additionally, noting the case of Lakshmi Kant Pandey v
Union of India[4], it also opined that action should be taken after examining
whether a decree in favour of adoption would be in the best interests of the child
to be adopted.
● In this case, the Court was observed to take note of the cases cited by the council
along with the submissions of the Additional Advocate General who mentioned
the Rajasthan Children Act, 1970 and Articles 21, 39, 45,47 and 51A of the
Constitution under which the welfare of children is enshrined. Condemning the
District Court’s decision which had failed to examine the issue in the light of the
JJ Act, the Rajasthan High Court was observed to resolve the apparent conflict
between the two Acts stating that embargo under Section 11 of the HAMA was
done away with by the JJ Act.
● Furthermore, it also stated that the JJ Act would prevail upon the HAMA owing
to the principle of “generalia specilibus non derogant” which provided that
special provisions prevailed over general ones.
● However, in the present case, the two Acts were not seen to conflate as the JJ Act
had impliedly amended the HAMA and would only apply in cases where the
children in question were destitute or abandoned, and the restrictions of HAMA
would continue to be applicable in other cases.
● On further analysis, it is observed that the Court stressed on harmonious
construction of the two Acts wherein the HAMA laid down provisions for
 adoption by Hindus and the JJ Act specially provided for children in need of care
and protection and in conflict with the law.

OR

The Hindu Adoptions and Maintenance Act, 1956

1. The Hindu Adoptions and Maintenance Act, 1956 was enacted by Parliament "to amend
and codify the law relating to adoptions and maintenance among Hindus". Section 4
gives overriding force and effect to the Act over any text, rule or interpretation of Hindu
law or any custom or usage prevalent before the commencement of the Act and over any
other law in force immediately before the commencement of the Act insofar as it was
inconsistent withthe provisions of the legislation.
2. Section 5 stipulates that no adoption shall be made after the commencement of the Act
by or to a Hindu except in accordance with the provisionscontained in the Chapter. Any
adoption made in contravention of the provisions is void. Consequently, under
Sub-section (2), any adoption which is void does not create any right in the adoptive
family in favour of any person which he or she could not have acquired exceptby reason
of the adoption.
3. The requisites of a valid adoption are specified in Section 6. Among them is the
requirement that the person adopting must have the capacity and the right to take in
adoption while the person adopted must be capable of being taken in adoption.
4. Sub-section (4) of Section 9 contains a reference to children who have been abandoned
byproviding that in such a case the guardian of the child is empowered to give the child
in adoption with the previous permission of the Court to any person including the
guardian himself.
5. For a person to be adopted, Section 10 provides that (i) the person should be a Hindu; (ii)
the person should not already have been adopted; (iii) the person should not have been
married unless there is a custom or usage to the contrary; (iv) the person should not
havecompleted the age of fifteen, unless there is a custom or usage to the contrary.
6. Section 11 provides that in every adoption certain conditions must be complied with.
Clauses (i) and (ii) of Section 11 are as follows: (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 bloodrelationship or by adoption)
living at the time of adoption
7. (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.
 8. What these clauses stipulate is a prohibition on the adoption of a child of the same gender
where the adoptive father or mother already have a child living at the time of the
adoption. If the adoption is of a daughter, the adoptive father or mother must not have a
Hindu daughter or a son's daughter living at the time of adoption. Where the adoption is
of a son, the condition is more stringent because the adoptive father or mother should not
have a Hindu son, son's son or son's son's son living.

Constitutional provisions
1. Article 15 of the Constitution empowers the State, in Clause (3), to make special
provisions for women and children. Article 39 is part of the Directive Principles of State
policy. Clause (e) of Article 39 directs the State in framing its policies to secure that the
tender age of children is not abused. In Clause (f) the State has to ensure that children are
given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity so as to ensure that childhood and youth are protected against
exploitation and against moral and material abandonment.
2. By Article 45 the State has to endeavour to provide early childhood care and education
for all children until they complete the age of six. Article 47 requires the State to raise
levels of nutrition. Under Article 51A it is the fundamental duty of every citizen who is a
parent or guardian to provide opportunities for education to his orher child or, as the case
may be, ward between the age of six and fourteen.

The convention on the Rights of the Child

1. India ratified the Convention on the Rights of the Child on 11th December, 1992. Article
3 of the Convention provides that in all actions concerning children, whether undertaken
by public or private social welfare institutions, Courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary consideration.
2. All States have undertaken to ensure to children such protection and care as is necessary
for their well being and to take all appropriate legislative and administrative measures.
Article 20 of the Convention provides that a child temporarily or permanently deprived of
his or her family environment shall be entitled to special protection and assistance
provided by the State.
3. Such care could include foster placement and adoption amongst other alternatives. Under
Article 21 States who are parties to the Convention recognized that the system of
adoption shall ensure that the best interests of the child shall be the paramount
consideration.

The Juvenile Justice Act, 2000

1. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000, "to
consolidate and amend the law relating to juveniles in conflict with law and children in
need of care and protection".
 2. The object of the Act is to provide for "care, protection and treatment by catering to their
development needs and by adopting a child friendly approach in the adjudication and
disposition of matters in the best interest of children and for their ultimate rehabilitation".
3. The Preamble to the Act makes reference to several constitutional provisions which have
a bearing on the welfare of children and to the obligation assumed by India as a
responsible member of the international community.

Rehabilitation and Social Integration

1. Chapter IV of the Juvenile Justice Act is entitled "Rehabilitation and Social
Reintegration". Section 40 of the Act provides that rehabilitation and social reintegration
of a child shall be carried out alternatively by (i) adoption, (ii) foster care, (iii)
sponsorship and (iv) sending the child to an after care organisation.
2. Sub-section (1) of Section 41 provides that the primary responsibility for providing care
and protection to a child is to be that of his or her family.
3. By Sub-section (2) adoption is to be resorted "for the rehabilitation of children who are
orphaned, abandoned or surrendered" through such mechanism as may be prescribed.
4. Subsection (3) of Section 41 empowers the Court to give children in adoption subject to
satisfaction of investigations having been carried out, as are required for giving children
in adoption.
5. Subsection (4) empowers the State Government to recognize one or more of its
institutions or voluntary organizations in each district as specialised adoption agencies for
theplacement of orphaned, abandoned or surrendered children for adoption.

- Adoption is a facet of the right to life under Article 21 of the Constitution. The right to
live that is asserted is, on the one hand, the right of parents and of individuals women
andmen who seek to adopt a child to give meaning and content to their lives. Equally
significant, in the context of the Juvenile Justice Act, 2000, the right to life that is
specially protected is the right of children who are in need of special care and protection.
The legislature has recognized their need for rehabilitation and social integration to
obviate the disruptive social consequences of destitution, abandonment and surrender
- The Hindu Adoptions and Maintenance Act, 1956 regulates adoptions by or to a Hindu.
The Act spells out requisites of valid adoptions, defines capacities for men and women
professing the Hindu religion to take in adoption and to give in adoption, for persons who
may be adopted and the conditions for adoption.
- The Act enunciates consequences or effects of a valid adoption in law. The Act
establishes rules of general applicability to Hindus in specific areas of family law -
adoption and maintenance. T
- the Juvenile Justice (Care and Protection of Children) Act, 2000 is beneficent secular
legislation. The Act makes special provisions for a limited sub class of children - those
 juveniles in conflict with law and children in need of care andprotection. Adoption under
the Act of 2000 is an instrument of legislative policy to rehabilitate and provide social
integration to children who are in need of care and protection.
- The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act, 2000
must be harmoniously construed. The Hindu Adoptions and Maintenance Act, 1956 deals
with conditions requisite for adoption by Hindus.
- The Juvenile Justice Act of 2000 is a special enactment dealing with children in conflict
with law and children in need of care and protection. While enacting the Juvenile Justice
Act 2000 the legislature has taken care to ensure that its provisions are secular in
character and that the benefit of adoption is not restricted to any religious or social group.
- The focus of the legislation is on the condition of the child taken in adoption. If the child
is orphaned, abandoned or surrendered, that condition is what triggers the beneficial
provisions for adoption. The legislation seeks to ensure social integration of such children
and adoption is one method to achieve that object. The religious identity of the child or of
the parents who adopt is not a precondition to the applicability of the law

-
- CASE: The Petitioners profess the Hindu religion. They already have a biological
daughter. They have obtained guardianship under the provisions of the Guardian and
Wards Act, 1890 of a minor child of the same sex. The child of whom they assumed
guardianship did fit the description of a child in need of care and protection under Section
2(d)(v) of the Juvenile Justice Act, 2000 and of a surrendered child under Sub-section (2)
of Section 41. ThePetitioners were eligible to adopt the child under the Juvenile Justice
Act, 2000 and the order of guardianship does not destroy that entitlement. The child was
a surrendered child and was legally free for adoption. The substance and effect of the
procedures prescribed under the Juvenile Justice (Care and Protection of Children) Act,
2000 have been complied with. Both 210 the children are pursuing their education in the
Kindergarten Class of a nursery school at Vile Parle. The report of the school has been
placed on the record. There is abundant material before the Court for the Court to
conclude that it is manifestly in the interest and welfare of the child that the petition for
adoption should be allowed. The child has already been with the Petitioners for a period
in excess of four years.

JUDGMENT
- The Petition is accordingly disposed of in terms of the reliefs sought before the Court.
There shall be a declaration that the Petitioners are the adoptive parents of Sharinee with
all the rights, privileges, responsibilities and consequences under the law. 36. There shall
be an order in terms of the Judge's Order separately signed. Before concluding this Court
 would wish to record its appreciation of the able assistance rendered to the Court by Mr.
Vishal Kanade, learned Counsel appearing on behalf of the Petitioners

Shabnam Hashmi v. Union of India (UOI) and Ors. 2014 (2) SCALE529

Facts

1. Specific guidelines were needed for adoption.

2. Shabnam Hashmi, is an Indian Social Activist and human rights campaigner. She started her social
activism campaigning about adult literacy in 1981.

3. She has filed a writ petition under Article 32 of the Constitution..

4. She has requested the court to lay down optional guidelines enabling adoption of children by
persons irrespective of religion, caste, creed etc.

Issues Raised

1. Whether adoption of a child is a fundamental right.

2. In case of contradiction between personal law and secular law, what is going to be prevailed.

3. Whether caste, creed and religions affects the adoption procedure.

Judgment
It will now be relevant to take note of the stand of the Union of India. Way back on 15th My, 2006 the
Union in its counter affidavit had informed the court that prospective parents, irrespective of their
religious background, are free to access the provisions of the Act for adoption of Children after
following the procedure prescribed. The progress on the ground as laid before the court by the Union
of India through the Ministry of Women and Child Development may also be noticed at this stage.

The JJ Act, 2000, as amended is an enabling legislation that gives a prospective parent the option of
adoption an eligible child by following the procedure prescribed by the Act, Rules and the CARA
guidelines, as notified under the Act. The Act does not mandate any compulsive action by any
prospective parents leaving such person with the liberty of accessing the provisions of the Act, if he
so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he
comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in
reaching the goal of Article 44 of the Constitution. Personal beliefs and faiths, though must be
honoured, can not dictates the operation of the provisions of an enabling statute.

The decision of this Court in Lakshmi Kant Pandey is a high watermark in he development of the
law relating to adoption. Dealing with inter-country adoptions, elaborate guidelines had been laid by
this court to protect and further the interest of the child. A regulatory body i.e. Central Adoption
Resources Agency was recommended for creation and accordingly set up by the Government of India
in the year 1989. Since then, the said body has been playing a pivotal role, laying down norms both
substantive and procedural, in the matter of inter as well as in the country adoptions. The said norms
have received statutory recognition on being notified by the Central Govt. under Rule 33 (2) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 and are today in force throughout the
country, having also been adopted and notified by several states under the Rules framed by the states
in exercise of the Rule making power under Section 68 of the JJ Act, 2000.
Reliance has placed in this regard on the views of the Bombay and

Kerala High Court in re: Manueal Theodore and Philip Alfred Malvin v. Y. J. Gonsalvis & Ors.
Respectively.

Even though no serious or substantial debate has been made on behalf of the Petitioner on the issues,
abundant literature including the holy scripts have been placed before the

Hon’ble court by the Board in support of its contentions, noted above. Though enriched by the
lengthy discourse laid down before us, we do not think it necessary to go into any of the issues
raised. The Fundamental Rights embodied in Part 3 of the Constitution constitute the basic human
rights which inhere in every person and such other rights which are fundamental to the dignity and
well being of citizens. While it is correct that the dimensions and perspectives of the meaning and
contend of FR’s, in our considered view, will have to await a dissipation of the conflicting thought
processes in this sphere of practices and beliefs prevailing in the country. The legislature which is
better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on
the issue has expressed its view, for the present, by the enactment of the JJ Act, 2000 and the same
must receive due respect.

Held- The court is of the view that the present is not appropriate time and stage where the right to
adopt and the right to be encompassed by Article 21 of the Constitution. We hardly need to reiterate
the well settled principles of Judicial Restraint, which requires the Court not ot deal with issues of
Constitutional interpretation unless such an exercise is but unavoidable.
Consequently the writ was disposed of in terms of our directions and observations made above.

Manju Sharma v.Vipin, 2019 SCC Online Del 8960 (decided on 1 July, 2019)

Manju Sharma vs. Vipin Case dealt with the interpretation of Maintenance under Section 125 of
the Criminal Procedure Code. It renders maintenance to women both married or divorced. Courts
have the authority to award maintenance at the rate which they deem fit. And such maintenance
is subject to modification in case there are any changes in the financial situation of the parties
involved. It is the claimant who needs to prove that the “husband has sufficient means, yet has
neglected or refused to provide maintenance”.

RELEVANT SECTION:

Section 125

FACTS

● Both the parties were married on 11.7.2008 and gave birth to a daughter on 14.11.2010.
But soon after it turned out the petitioner of her matrimonial home as she did not bring
enough dowry and car after marriage.
● The respondent had filed for divorce which was pending before the court additionally the
petitioner filed a petition under the Protection of Women from Domestic Violence Act
and the court passed an order assessing the income of husband Rs.30,000 per month and
awarding Rs.10,000 per month to the petitioner as maintenance after which the petitioner
filed for enhancement of the maintenance but same was rejected by the appellate court.
● Hence, this petition was filed for enhancement of maintenance to Rs.40,000 per month.

CONTENTIONS:
 ● The petitioner asserted the respondent is involved in the manufacturing and sales of RO
Water purifiers and has a turnover between 50 lakhs to 1 crore.
● The father of the petitioner has a jeweler’s showroom which is run by the respondent and
his brother.
● The petitioner also contended that the appellate court was inaccurate as they failed to
recognize various sources of income of the respondent and also disregarded the fact that
the respondent misled the court about his actual earnings.
● The petitioner moreover expressed the fact that her daughter has an eye ailment that
requires regular medical attention and it costs around Rs.5000 per month.

RATIO DECIDENDI:

● The bench relied on judicial precedent laid in the case of Bhuvan Mohan Singh V. Meena
(2015) 6 SCC 353, in which the court stated, that section 125 was developed for
improving the agony, anguish, and financial suffering of a woman to create an adequate
arrangement for her which could help her sustain.
● Here sustenance does not show living life as an animal but it implies that the law permits
women to lead a life identically as they would have lived with their husbands.
● And at this stage, reputation, status, and strata come into question. A husband could not
deprive his wife to live life with dignity.
● And the rationale for the grant of maintenance under section 125 is extended to the
Protection of Women from Domestic Violence Act.

DECISION OF MANJU SHARMA VS. VIPIN 2019 CASE: The court agreed to the contention
of the petitioner that an error was committed in assessing the income of the respondent and
therefore granted the petitioner Rs.30,000 per month as maintenance.