Case: Abhiraj Kuer Vs. Debendra Singh

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."13. It is clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayanas 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.14. 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 very 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.15. Our attention was drawn to a decision of the Madras High Court in Minakshi v. Ramanada, ILR 11 Mad 49 (FB), where the learned judges observed :"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 adoptees mother was a sagotra of the adoptive father, and so, there could be no legal marriage between them. It was not necessary therefore for the learned judges in the Minakshis case ILR 11 Mad 49 (FB), to consider whether the Viruddha Sambandha rule against marriage was mandatory or not.16. We are not aware of any decision in any of the High Courts where Nanda Pandits 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 Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son is invalid.17. 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 wifes sisters daughter. Assuming for the present that it is no 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 wifes sisters daughter. For the 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 Ashvalayanas 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.18. As 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 exists 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 wifes sister, or even with her niece or her aunt."Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol. 1, also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wifes sisters daughter (already quoted above) : "Instances of marriage with wifes sisters daughter, and wifes brothers daughter, are also not unknown in Bengal, though Hindu sentiment is strong against such marriages." The question was directly raised in Ragavendra Rau v. Jayaram Rau, ILR 20 Mad 283. Mr. Justice Subramania Ayyar and Mr. Justice Benson relying on Dr. Gooroodas Banerjees statement of the law and also on Syama Charan Sarkars Vyavastha-Darpan, Dr. Bhattacharyas commentaries on Hindu Law and certain other text books held that marriage between a man and his wifes sisters 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".19. In our opinion a marriage of a Hindu with his wifes sisters daughter is not invalid in law even though it may not be liked by certain people. Mr. Jhas 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.

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

Explanation:
0[ds]There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to 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 Pandits views to unfavourable criticism.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 son should be adopted the Dattaka Chandrika observed at p. 14 (Reflection of a son-the resemblance of a son, or in other words the capability to have been begotten, by the adopter, through appointment, and so forth). (Sutherlands translation). The Dattak Mimansa adopts this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.5. 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 mandatorydo 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 inare 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 Viruddhacan find no justification either in the modern rules of interpretation or in the miles of interpretation of the old Hindu Shastras for such a view.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 clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayanas 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.14. 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 very 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.We are not aware of any decision in any of the High Courts where Nanda Pandits 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 Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son isfor the present that it is no 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 wifes sisters daughter. For the 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 Ashvalayanas 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.In our opinion a marriage of a Hindu with his wifes sisters daughter is not invalid in law even though it may not be liked by certain people. Mr. Jhas 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.