Case: Dhanraj Vs. Suraj Bai

Amichand, respondents husband, adapted the appellant with the consent of the respondent an the 18th November, 1959 and executed a registered deed evidencing the fact of adoption. The appellant at that time was 21 years of age. Both his natural father and mother were dead. He had a step-mother Bhuri Bai with whom the appellant was residing at the time of the impugned adoption.The appellant was given in adoption by his step-mother. Subsequently the respondents husband and the respondent filed a suit in the year 1963 against the appellant impeaching his adoption on various grounds and for a declaration that the adoption was illegal and invalid. The appellant contested the suit and, inter alia, pleaded a custom applicable to the parties according, to which a person being of the age of 15 years or more could be taken in adoption. The custom was pleaded in view of the provision of the law contained in clause (iv) of Section 10 of the Hindu Adoptions and Maintenance Act, 1956 - hereinafter referred to as the Act. The appellant also stated in his written statement that under the Act the step-mother was competent to give him in adoption.2. Several issues were framed including an issue regarding the custom as pleaded. Issue No. 1-A by agreement of the parties without the adducing of any evidence was tried as a preliminary issue by the trial Court. The said issue runs as follows :"whether the adoption of Dhanraj is invalid on the ground that he has been given in adoption by his step-mother Mst. Bhuri Bai."The trial Court decided the issue in favour of the plaintiffs and against the defendant. The latter filed a first appeal in the High Court. During the pendency of the appeal, plaintiff No. 1 died. The only respondent left was his widow. The High Court has held that the step-mother was not competent to give the appellant in adoption and maintained the dismissal of the suit on that preliminary issue. Hence this appeal.

Reasoning: 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.