Appeal No 379 of 1958
Appeal from the judgment and decree dated January 17 1956 of the Patna High Court in Appeal from Original Decree No 169 of 1947
L K Jha D P Singh R K Garg M K Ramamurthi and section C Agarwal for the appellant
R C Prasad for the respondent
September 15
The Judgment of the Court was delivered by DAS GUPTA J
Can a wife s sister s daughter s son be validly adopted to a person governed by the Benaras School of the Mitakshara Hindu Law  That is the main question raised in this appeal brought on a certificate granted by the High Court at Patna
The plaintiffs who would succeed to the properties left by Babu Ram Singh on the death 629 of his widow but for the adoption of Devendra Singh which this widow made on June 9 1935 brought the present suit for a declaration that Devendra Singh was not adopted by the second defendant Babu Ram Singh s widow and that in any case the adoption is invalid in law and so Devendra Singh acquired no right in the properties left by Babu Ram Singh
The main ground on which the adoption is attacked as invalid is based on the fact that Devendra Singh is Babu Ram Singh s widow s sister s daughter s son
The other ground raised in the plaint based on the plaintiff s allegation that Babu Ram Singh was governed by Mithila School of Hindu Law was negatived by the courts below and has been abandoned before us
No dispute is also raised now as regards the factum of adoption
The only question that arises in this appeal therefore is whether the adoption of a wife s sister s daughters son is valid in law
The High Court answered this question in the affirmative and dismissed the suit
It is against that decision that the present appeal has been preferred
In support of his contention that such an adoption is invalid in Hindu Law reliance is placed by the learned counsel on the following passage of Nanda Pandit s Dattak Mimansa  see Whitley Stokes s Hindu Law Books at pp
590 and 591
Accordingly the brother paternal and maternal uncles the daughter s son and that of the sister are excluded  for they bear no resemblance to a son
Intending this very position it is declared in the sequel by the same author The daughter s son and the sister s son are declared to be the sons of Cudras
For the three superior tribes a sister s son is No where mentioned as a son
Here even the 630 term sister s son is illustrative of the whole not resembling a son for prohibited connection is common to them all
Now prohibited connection is the unfitness of the son proposed to be adopted to have been begotten by the individual himself through appointment to raise issue on the wife of another
The mutual relation between a couple being analogous to the one being the father or mother of the other connection is forbiden as for instance the daughter of the wife s sister and the sister of the paternal uncle s wife
The meaning of the text is this
Where the relation of the couple that is of the bride and bridegroom bears analogy to that of father or mother  if the bridegroom be as it were father of the bride or the bride stand in the light of mother to the bridegroom such a marriage is a prohibited connection
The two examples illustrate these cases in their order
In the same manner as in the above text of the Grihaparisistha on marriage prohibited connection in the case of marriage is excepted and so in the case in question one who if begotten by the adopter would have been the son of a prohibited connection must be excepted in other words such person in to be adopted as with the mother of whom the adopter might have carnal knowledge
It is urged that in view of this specific exclusion of a wife s sister s daughter s son from the list of those who are fit for adoption there is no escape from the conclusion that such an adoption would be invalid in law
Learned Counsel has emphasised that great authority attaches to all statements of law as regards adoption that are contained in Dattak Mimansa
There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to 631 be of great authority on all questions of adoption
It is true that Prof Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value and eminent scholars like Dr Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandit s views to unfavorable criticism
In spite of all this the Privy Council in Bhagwan Singh vs Bhagwan Singh1 did recognise that both the Dattak Mimansa and Dattak Chandrika had been received in courts of law including the Privy Council as high authorities and after drawing attention to Lord Kingsdown s statements as regards these in Rungama vs Atchama 2 and Sir James Colvile s statement in Collector of Madura vs Moottoo Ramlinga Sathupathy3 stated thus  To call it ie Dattak Mimansa infallible is too strong an expression and the estimates of Sutherland and of West and Buhler seem nearer the true mark but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law
 While saying this mention must also be made of the observations of the Privy Council in Sri Balusu Gurulingaswami vs Sri Balasu Ramalakshmamma4 decided on the same date March 11 1899 but immediately before Bhagwan Singh s Case was decided expressing their concurrence with the view that caution was required in accepting the glosses in Dattaka Mimansa and Dattak Chandrika where they deviate from or added to the Smirities
There can be no doubt that in laying down the rule that the adoption of the son of a woman who could not have been married by the adoptive father because of incongruous relationship Viruddha Sambandha Nanda Pandit was adding to the existing state of law
It is interesting to notice here that commenting on what Saunaka had said in describing the  ritual of adoption that a 1 1899 LR 26 IA 153 161
2 1846 TA 1 97
3 1863 12 MIA 397 437
4 1899 LR 26 IA 113136
632 son should be adopted the Dattaka Chandrika observed at p 14  Reflection of a son The resemblance of a sonor in other words the capability to have been begotten by the adopter through appointment and so forth
Sutherland s translation
The Dattak Mimansa adopts this view and introduces the further doctrine of Viruddha Sambandha relationship as a bar to adoption
It is unnecessary for us to examine what authority should be attached to this serious addition to the texts for determining who can be adopted as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority Nanda Pandit has stated this merely as a recommendation and not as a mandatory prohibition
For many years now courts have recognised the position that not only the Dharma Sutras and Grihya Sutras but also the commentaries thereon and digests mingle without hesitation statements of law which are intended to be recommendations merely with statements which are intended to be mandatory
In Balu Gurulingaswami s case to which reference has just been made the Privy Council pointed out that recent extension of the study of Sanskrit had strengthened the view of Sir William Macnaughten that it by no means follows that because an act has been prohibited it should therefore be considered illegal
The distinction between the vinculum juris and the vinculum pudoris is not always discernible and adding to the previous statement of the Board in Rao Balwant Singh vs Rani Kishori1 decided in the previous year the Privy Council observed these words of caution in Balusu Gurulingaswami s case  lm15 They now add that the further study of the subject necessary for the decision of these 1 1898 LR 25 IA 69
633 appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion morality and law lest foreign lawyers accustomed to treat as law what they find in authoritative books and to administer a fixed legal system should too hastily take for strict law precepts which are meant to appeal to the moral sense and should thus fetter individual judgments in private affairs should introduce restrictions into Hindu society and impart to it an inflexible rigidity never contemplated by the original law givers
 The importance of this caution has by no means decreased in the years that have gone by
It is therefore necessary to examine the words used by Nanda Pandit himself in laying down this rule against Viruddha Sambandha adoption
It has to be noticed that while he says One who if begotten by the adopter would have been the son of a prohibited connection must be excepted Sutherland s translation he does not say anything about what would happen if Viruddha Sambandha Putra was adopted
If the rule was intended to be mandatory it is reasonable to expect that the author who as the treatise itself shows was a master of logic and well acquainted with the rules of logic and other rules which deal with the question of mandatory injunctions would give clear indication of that view
This was all the more reasonable to expect as he was introducing a new rule
But he contents himself with saying that We do not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid in law
Notice has necessarily to be taken in this connection of the fact that the only authority mentioned by Nanda Pandit himself against 634 Viruddha Sambandha marriage from which he deduces his rule of Viruddha Sambandha in matters of adoption is to be found in the text of Ashvalayana The bridegroom duly qualified should marry a duly qualified maiden who is younger in years is not a sapinda is not of the same gotra and whose marriage does not involve a viruddha sambandha contrary relationship
It is followed a little later by this comment Viruddha Sambandha is that Sambandha relation which is viruddha contrary or im proper owing to the relationship existing between the bride and the bridegroom before their marriage being similar to that of a father or mother
As for instance the daughter of the wife s sister and the sister of the maternal uncle s wife
Is this rule mandatory In other words would a marriage of a girl standing in the Viruddha Sambandha relationship to the bridegroom be invalid
We are not satisfied that this is the position in law
It is striking that though the numerous Dharma Sutras and Grihya Sutras deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say about Viruddha Sambandha
Coming to more recent times the only Digest in which any reference to this Virudha Sambandha of Ashvalayana can be traced is in Nirnaya Sindbu late 16th century
There is no reference to this however in Raghunandana s exhaustive treatise on marriage udhvahatattva which was written in the early 16th century
In Nirnaya Sindhu there is only bald reference to this in these words 635 There is also the bar to marriage by sayings of sages
As in the Grihyaparishistha should not marry a girl of Viruddha Sambandha incongruous relationship Viruddha Sambandha was illustrated thus  As in the case of wife  sister s daughter father s brother s wife s sister without any comments whatsoever
It is reasonable to think that the numerous Smritikars and commentators who have dealt with the subject of marriage were acquainted with Ashvalayana s text but lid not think it necessary to refer to it as it was a recommendatory rule not considered to be of much importance
Mr Jha argues that when a positive statement is followed by a negative statement the negative statement should always be held to contain a prohibitory mandate
Thus he says that as after saying says next the rules contained in this latter portion should be held to be mandatory
We can find no justification either in the modern rules of interpretation or in the rules of interpretation of the old Hindu Shastras for such a view
One instance where a negative rule following a positive direction on this very subject of marriage cannot possibly be I considered to be mandatory can be found in Yajnavalkaya s text  Let him whose life as bachelor is unsullied marry a wife who possesses good qualities who has not been enjoyed by another who is beautiful who is not his sapinda who is younger than himself who is not suffering 636 from any complaints who has brothers and who does not belong to the family descended from the same primitive guide Quite clearly the rule that a girl suffering from disease should not be married is not a mandatory rule even though it follows some positive rules about marriage
That this is the position has been pointed by Vigyaneshwar
It is interesting to notice in this connection Ashvalayana s own statement about marriage rules in the fourth section of the first Chapter of his Grihaya Sutra
After saying a daughter should be given to a man of understanding he says in the next text that one should marry a girl of understanding good looks good conduct and good qualities and one who is not suffering from any disease
This also is a case of a positive statement that a person should marry a girl of understanding good looks good conduct and good qualities followed by a rule that a person should not marry a girl suffering from disease
Even so it cannot be imagined for a moment that this rule that one should not marry a girl suffering from disease is a mandatory rule implying that marriage with such a girl would be invalid
In any case argues the learned counsel when we find the three rules against marriage to a sapinda girl and sagotra girl and Viruddha Sambandha girl in the same text as here and admittedly the first two are mandatory and marriage to a sapinda girl or a sagotra girl would be invalid there is no reason why the same result should not follow on breach of the third rule against marrying a Viruddha Sambandha girl
The reasons why marriage to a sapinda girl or a sagotra girl has always been held to be invalid are succinctly stated by Raghunandana in his Udhvahatattva in a passage which has been translated thus by Dr Jogendra Nath Bhattacharyya in his Commentaries on Hindu Law Third Edition Vol
I at P 188 637 The negative ordinances prohibiting marriage with girls of the same gotra pravara etc are parudasa exceptional clauses having reference to a vidhi they are also prohibitions proper like the prohibitory rule about the sexual union on parva days because they forbid such marriages by the accompaniment of condemnatory and penance clauses See Texts of Apastamba
and Sumantu cited on p 187 and in view also of the fact that such marriages may spring from natural inclination
The term wife is like the terms yupa sacrificial post ahavaniya sacrificial fire and denotes a female taken in marriage with occult ceremonies
Therefore where a sapinda or a sagotra girl is taken in marriage she does not become a wife
 It is a clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayana s text viz the rules against marriage of a sapinda girl or a sagotra girl should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule which is against marrying a Viruddha Sambandha girl
It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition
This must have been even more clear to Nanda Pandit and so when extending Viruddha Sambandha to adoption on the  cry basis of Ashvalayanas rule against Viruddha Sambandha marriage Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition
Our attention was drawn to a decision of the Madras High Court in Minakshi vs Ramanada where the learned judges observed 1 Mad 49 638 In the case of marriage
 there are three prohibitions viz 1 The couple between whom marriage is proposed should not be sapindas 2 They should not be sagotras and 3 There should be no Viruddha Sambandha or contrary relationship as would render sexual connection between them incestuous The real question which was before the Full Bench Was whether there can be valid adoption under the Hindu law if a legal marriage is not possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state
In the case before the Full Bench the adoptee s mother was a sagotra of the adoptive father and so there could be no legal marriage between them
It was not necessary there ore for the learned judges in the Minakshi s case to consider whether the Viruddha Sambandha rule against marriage was mandatory or not
We are not aware of any decision in any of the High Courts where Nanda Pandit s rule against Viruddha Sambandha adoption has been considered to be a mandatory prohibition
For the reasons discussed above we are of opinion that this rule introduced by Wanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wife s sister s daughter s son is invalid
Mr Jha then tried to take advantage of the rule which has been accepted by almost all the High Courts except Bombay that there can be no valid legal adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state by urging that there can be no legal marriage between a person and his wife s sister s daughter
Assuming for the present that it is no 630 longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned we are still of the opinion that this argument is of no avail for the simple reason that we see no reason to think that there can be no legally valid marriage between a person and his wife s mister s daughter
Forthe only argument in support of the contention that there can be no such legal marriage between persons thus related the learned counsel had to fall back upon Asvalayana s Viruddha Sambandha rule
That however as we have already shown is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid
An early as 1878 Dr Gooroodas Banerjee whose erudition equalled his orthodoxy dealing with this question in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan observed thus p 64 The prohibition by reason of affinity which exsts in other systems has no place in Hindu Law
But the prohibition of marriage with sapindas to some extent supplies its place and so did the prohibition of widow marriage
The Hindu Law however does not prohibit marriage with the wife s sister or even with her niece or her aunt Dr Jogendra Nath Bhattacharya in his Commentaries on Hindu Law Third Edition Vol
I also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wife s sister s daughter already quoted above  Instances of marriage with wife s sister s daughter and wife s brother s daughter are also not unknown in Bengal though Hindu sentiment is strong against such marriages
 The question was directly raised in Ragavendra Rau vs Jayaram Rau 1
Mr Justice Subramania Ayyar and Mr Justice Benson relying on Dr Gooroodas Banerjee s statement of the law 1 Mad
640 and also on Syama Charan Sarkar s VyavasthaDarpan Dr Bbattacharyya s commentaries on Hindu Law and certain other text books held that marriage between a man and his wife s sister s daughter is valid
The learned judges pointed out that in South India at least there was little to indicate that such marriages are disapproved of by the members of any section of the community In our opinion a marriage of a Hindu with his wife s sister s daughter is not invalid in law even though it may not be liked by certain people
Mr Jha s second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state must therefore fail
We therefore hold that the High Court was right in its conclusion that the adoption of a wife s sister s daughter s son is valid in law
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
The appellant as reversioner sued for a declaration that the adoption of respondent 1 by respondent 2 to her deceased husband was invalid in law and respondent 1 acquired no right to the properties left by the husband of respondent 2
The parties were governed by the Banaras School of Mitakshal a Hindu law and respondent 1 was the sister s daughter s son of respondent 2
The question was whether a wife s sister s daughter s son could be validly adopted to a person governed by the Banaras School of Mitakshara Hindu Law
The High Court answered it in the affirmative and dismissed the suit
Reliance wag placed on behalf of the appellant in this Court on Nanda Pandit s Dattak Mimansa which specifically excluded a wife s sister s daughter s son for the purpose of adoption on the ground of incongruous relationship Viruddha Sambandha as also on the text of Ashvalayana interdicting marriage with a sapinda sagotra and viruddha sambandha girl such as a wife s sister s daughter on which the author of Dattak Mimansa had relied
It was contended that when a positive statement in the text was followed by a negative one the latter 628 containing the prohibition must be held to be mandatory and that in any case since the prohibition against marriage to a sapinda or sagotra girl was mandatory the prohibition against marriage to a Viruddha Sambandha girl must also be equally go
Held that the contentions were without substance and must fail
Adoption of a wife s sister s daughter s son is legally valid under the Banaras School of Mitakshara Hindu law
None of the reasons which rendered marriage to a sapinda or sagotra girl invalid were present in the case of a marriage to a Viruddha Sambandha girl and the rule against marrying a Viruddha Sambandha girl was not intended by its author to be mandatory
The extension of the rule of Viruddha Sambandha to adoption made by Nanda Pandit was not meant by him to be mandatory
Minakshi vs Ramanada Mad 49 distin guished
Held further that the marriage of a Hindu with his wife s sister s daughter is not invalid in Hindu law
Ragavendra Rau vs
Jayaram Rau Mad 283 referred to
Case law reviewed