Case: Abhiraj Kuer Vs. Debendra Singh

The plaintiffs who would succeed to the properties left by Babu Ram Singh on the death 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 Singhs 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.2. The main ground on which the adoption is attacked as invalid is based on the fact that Devendra Singh is Babu Ram Singhs widows sisters daughters son. The other ground raised in the plaint based on the plaintiffs 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 wifes sisters 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.

Court's reasoning:
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.