Case: Dhanraj Vs. Suraj Bai

coming into force of the Act : vide para 489 at page 554 of Mullas Hindu Law, Fourteenth Edition. Identical is the position under the Act. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. Section 9 of the Act enumerates the persons capable of giving in adoption. Sub-section (1) says :"No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption."The departure in the law is that under the Act even the guardian of a child has the capacity to give him or her in adoption. But, the step-mother as such has not. The father or mother mentioned in sub-section (l) must necessarily mean the natural father and the natural mother. Explanation (i) amended to Section 9 was pressed into service to say that the step-mother is included in the term "mother" because the said explanation says "the expressions "father" and "mother" do not include an adoptive father and "an adoptive mother." Learned counsel for the appellant submitted that step-mother has not been excluded from the expression "mother" and only an adoptive mother has been so excluded. By necessary implications, therefore, it was submitted that it ought to be held that the word "mother in sub-section (1) includes a step-mother. We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother, means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is distinct and different from mother : while, generally speaking an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebody else.8. Learned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption no consent was necessary of and person except the adoptee himself. No body could be available to give him in adoption. The use of the word "child" in clause (vi) of Section l1 and in Section 9 (l) read in contra-distinction of the use of word "person" in clause (iii) of Section 6 would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult. We see no substance in this argument. Under the law as engrafted in Section l0 of the Act a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in Sections 9 and 11. The use of the word "person" in Section 6 (iii) and at the commencement of Section l0 is not for the purpose of bringing about any difference in law in regard to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. Child would not necessarily mean in that context a minor child if the child is a minor, in absence of the father or the mother, a guardian appointed by the will of the childs father to mother and a guardian appointed or declared by a Court would be competent to give the child in adoption. But in case of a major in absence of the father or the mother nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to the contrary.9. Learned counsel for the appellant then attempted to argue on the basis of the decisions of the Bombay High Court in the cases of Motilal Mansukhram v Maneklal Davabhai. AIR 1921 Bom 147 (l) and Pralhad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao. AIR l958 Bom 79. that even under the old Hindu Law the adoption of an orphan was not valid except by custom ; but if the custom permitted it, and in the case of Porwal Jains it did permit then an orphan who was not minor could go in adoption by his own consent without the consent of and the giving by any body else. We think that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would save such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our inclement it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother, means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is distinct and different from mother : while, generally speaking an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebodysee no substance in this argument. Under the law as engrafted in Section l0 of the Act a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in Sections 9 and 11. The use of the word "person" in Section 6 (iii) and at the commencement of Section l0 is not for the purpose of bringing about any difference in law in regard to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. Child would not necessarily mean in that context a minor child if the child is a minor, in absence of the father or the mother, a guardian appointed by the will of the childs father to mother and a guardian appointed or declared by a Court would be competent to give the child in adoption. But in case of a major in absence of the father or the mother nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to thethink that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would save such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our inclement it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon.