pecific Relief Act, 1963 — Section 34 — Suit for declaration – Concurrent findings of courts below regarding non establishment of adoption, Effect of — Plaintiff/appellant, alleging to be adoptive son of defendant no. 1, filed a suit for declaration that the gift deed alleged to have been executed by defendant No.1 in favour of defendant Nos. 2 and 3, in respect of the suit land is illegal, void, ineffective and is to be set aside — Trial court recorded its findings holding that the plaintiff is the legally adopted son of deceased defendant No.1 but suit property was not the ancestral property; hence, defendant no. 1 was entitled to alienate the property and dismissed the suit — First appellate court and High Court came to the conclusion that neither the custom has been proved nor the factum of adoption has been established by conclusive evidence — Plaintiff-appellant filed appeals by special leave — Held, evidence brought on record goes against the plaintiff-appellant on the basis of which it cannot be held that there was a valid adoption — Plaintiff-appellant impleaded his adoptive father as defendant No.1 — If the adoptive father himself asserted that he never took the appellant in adoption, the court cannot come to the conclusion that appellant was taken in adoption by defendant No.1 — Defendant No.1 adoptive father denied each and every allegation and claimed to be in cultivating possession of the land and further denied that the appellant ever resided with him in his house or helped him in cultivating the land — The evidence, goes against the appellant and, therefore, it cannot be held that there is perversity in the judgment passed by the two appellate courts — Appeals dismissed — Hindu Adoption and Maintenance Act, 1956 — Sections 10 & 11 — Adoption.
(Para 15 to 18)
HELD: The plaintiff-appellant impleaded his adoptive father Sarup Singh as defendant No.1 and alleged that he was adopted by defendant No.1. Curiously enough, defendant No.1, the so called adoptive father, contested the suit by filing written statement making an averment that he never adopted him as his son. If the adoptive father himself asserted that he never took the appellant in adoption, the court cannot come to the conclusion that appellant was taken in adoption by defendant No.1. It is strange enough that when during the pendency of the case defendant No.1 adoptive father died the plaintiff-appellant who claims himself to be the adopted son has not even performed the last ritual and other ceremonies of the deceased. It has also come in evidence that during the period when the alleged adoption took place, the appellant’s natural father was Sarpanch of the village and the register which was produced in court to show that there was some entry with regard to adoption remained with the said Sarpanch. Apart from that, defendant No.1 adoptive father in his detailed written statement has denied each and every allegation and claimed to be in cultivating possession of the land and further denied that the appellant ever resided with him in his house or helped him in cultivating the land. The evidence, in our view, goes against the appellant and, therefore, it cannot be held that there is perversity in the judgment passed by the two appellate courts.
(Para 17)
Harnek Singh v. Pritam Singh [Bench Strength 2], Civil Appeal Nos. 3895-3896/2013 (Arising out of S.L.P. (C) Nos. 33612-33613/2009) (17/04/2013), 2013(3) SCV(Civil) 128: 2013 AIR(SC) 3789: 2013(4) SCC 458: 2013(4) JT 451: 2013(6) SCALE 34: 2013(6) SLT 28 [Surinder Singh Nijjar, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 18 — Suit for maintenance — Compromise towards permanent alimony and giving up future claim for maintenance under Section 125 Cr.P.C. proceedings — Maintainability of — Compromise entered into by husband and wife under Order 23 Rule 3 of CPC, agreeing for a consolidated amount towards permanent alimony, thereby giving up any future claim for maintenance, accepted by the Court in a proceeding under Section 125 Cr.P.C. — Issue is whether it would preclude the wife from claiming maintenance in a suit filed under the Act, 1956 — Family Court held that compromise entered into between the parties would not be bar in entertaining a suit and decreed the suit holding that the respondent is entitled to monthly maintenance from the defendant husband — High court affirmed the same — Challenged by husband — Held, Court in complete agreement with the reasoning of the Family Court and confirmed by High Court that the suit under Section 18 of the Act is perfectly maintainable, in spite of the compromise reached between the parties under Order 23 Rule 3 C.P.C. — Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act — Therefore, no error in the view taken by the Family Court, which has been affirmed by the High Court — Petition dismissed in limine — Contract Act, 1872 — Section 25 — Agreement opposed to public policy — Enforceability of — Civil Procedure Code, 1908 — Order 23 Rule 3 — Compromise for permanent alimony — Criminal Procedure Code, 1973 — Section 125 — Compromise for permanent alimony, Effect of.
(Para 9 & 11)
Nagendrappa Natikar v. Neelamma [Bench Strength 2], Special Leave Petition (Civil) No. 11800/2013 (Arising Out/C.C. No. 1297/2012) (15/03/2013), 2013(2) SCV(Civil) 312: 2013 AIR(SC) 1541: 2013(4) JT 120: 2013(3) SCALE 561: 2013(2) Supreme 424: 2013(4) SLT 26: 2013 CrLJ 2060 [K.S. Radhakrishnan, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 3(a) — Custom — Distinction between general custom and special custom — Conditions for applicability of custom — Discussed — Hindu Law — Custom as source of Hindu Law — Required conditions for.
Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938, Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041; Siromani v. Hemkumar & Ors., AIR 1968 SC 1299, amalakshmi Ammal v. Sivanatha Perumal Sethuraya, 14 Moo. Ind. App. 570, Salekh Chand (Dead) thr. Lrs. v. Satya Gupta & Ors., (2008)13 SCC 119 & Bhimashya & Ors. v. Smt. Janabi @ Janawwa, (2006)13 SCC 627, Referred.
(Para 7 & 9)
HELD: Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom.
Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it.
Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence.
(Para 7)
A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See also: Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar & Ors., AIR 1968 SC 1299).
(Para 9)
Laxmibai v. Bhagwantbuva [Bench Strength 2], Civil Appeal No. 2058/2003 (29/01/2013), 2013(2) SCV(Civil) 357: 2013 AIR(SC) 1204: 2013(4) SCC 97: 2013(2) JT 362: 2013(2) SCALE 106: 2013(1) Supreme 418: 2013(1) SLT 644 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Adoption — Purpose of — Held, adoption is made to ensure spiritual benefit for a man after his death — The primary object of adoption was to gratify ancestors’ by means of annual offerings, and therefore it was considered necessary that the offerer, must as far as possible be a reflection of the real descendant, and must look as much like a real son as possible, and must certainly not be one, who could never have been a son.
Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781 & V.T.S. Chandrashekhara Mudaliar (Dead thr. Lrs.) & Ors. v. Kulandaivelu Mudaliar, AIR 1963 SC 185, Referred.
(Para 13)
Laxmibai v. Bhagwantbuva [Bench Strength 2], Civil Appeal No. 2058/2003 (29/01/2013), 2013(2) SCV(Civil) 357: 2013 AIR(SC) 1204: 2013(4) SCC 97: 2013(2) JT 362: 2013(2) SCALE 106: 2013(1) Supreme 418: 2013(1) SLT 644 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 16 & 3(a) — Adoption — Natural parents signed the deed as attesting witness rather than executors — Conflict between substantial justice and technical considerations, effect — Deed of adoption complying requirements under Section 16 — Adoption of son by appellant in relation to carrying the Palki and Padukas — Suit against respondents seeking a decree of perpetual injunction preventing them from causing any obstruction or interference in the exercise of their exclusive rights — Trial court decreed the suit, holding that the adoption by appellant was valid — First Appellate Court reversed the judgement — Appellants preferred Second Appeal, which was dismissed by the High Court — Challenged — Held, in view of the fact that the defendants/respondents have never made any reference with respect to the existence of a custom prohibiting the adoption of a child from outside the family, either in the notice served by them or in their written statement, the mere fact that it may only be for the sake of convenience, that a child was taken in adoption from within the same family on each of the four occasions over a period of 375 years, would not be sufficient to establish the existence of a custom in this regard, for the reason that custom cannot be proved by way of logic or analogy — Thus we hold, that the finding recorded by the Appellate Courts on this issue, is not based on any evidence, and that the appellate courts have committed an error in holding that the defendants/respondents have successfully proved the existence of such special family custom — Appellate courts have failed to appreciate that a negative fact cannot be proved by adducing positive evidence — Mere technicalities cannot defeat the purpose of adoption, particularly when the defendants/respondents have not made any attempt to disprove the document — No reference was ever made either by them, or by their witnesses, to this document i.e. registered adoption deed — Natural parents of the adoptive child had acted as witnesses, and not as executors of the document — Undoubtedly, adoption disturbs the natural line of succession, owing to which, a very heavy burden is placed upon the propounder to prove the adoption — However, this onus shifts to the person who challenges the adoption, once a registered document recording the adoption, is brought before the court — This aspect must be considered taking note of various other attending circumstances i.e., evidence regarding the religious ceremony (giving and taking of the child), as the same is a sine qua non for valid adoption — Appellate court has erred by considering the irrelevant material, while the most relevant evidence, i.e., the adoption ceremony and the adoption deed, have been disregarded on the basis of mere surmises and conjectures — The correctness or authenticity of adoption deed is not disputed — What is disputed is that the natural parents of adoptive child who were definitely executing parties of the deed have signed as witnesses alongwith 7 other witnesses — In such a fact-situation, by gathering the intention of the parties and by reading the document as a whole and considering its purport, it can be concluded that the adoption stood the test of law — We think that cause of justice would be served, instead of being thwarted, where there has been substantial compliance of the legal requirements, specified in Section 16 of the Act 1956 — When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best — Judgments and decrees of the appellate courts are set aside and judgment and decree of the trial court is restored — Consequently, appeal is allowed — Civil Procedure Code, 1908 — Section 100 — Second appeal — Hindu Law — Custom as source of Hindu Law — Proof by way of logic or analogy, scope — Practice and Procedure — Proof of negative fact — Adducing positive evidence, permissibility.
S.T. Krishnappa v. Shivakumar & Ors., (2007)10 SCC 761, Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970 SC 1286, Mst. Deu & Ors. v. Laxmi Narayan & Ors., (1998)8 SCC 701 & Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai Bapuji, AIR 2011 SC 545, Referred.
(Para 15, 23 & 40)
Laxmibai v. Bhagwantbuva [Bench Strength 2], Civil Appeal No. 2058/2003 (29/01/2013), 2013(2) SCV(Civil) 357: 2013 AIR(SC) 1204: 2013(4) SCC 97: 2013(2) JT 362: 2013(2) SCALE 106: 2013(1) Supreme 418: 2013(1) SLT 644 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 and proviso to — Adoption of child — Validity of — Consent of wife for — Existence — Determination — Decree of partition sought by appellant/plaintiff on basis of his adoption to `G’ challenging the gift deed and will executed by `G’ in favour of his wife, the respondent — Decreed upto High Court holding the adoption of appellant as valid — Justification — Held, court below misdirected themselves in deciding issue of consent of respondent- wife to adoption of appellant — Nothing to show any active participation of respondent-wife in adoption ceremonies to draw an inference of her consent to adoption — Concurrent finding of court below holding adoption as valid and with consent of respondent-wife is perverse as the same is based on unfounded assumptions and pure conjectures — Impugned order of court below is unsustainable and to be set aside and suit of appellant is dismissed — His appeal also accordingly be dismissed.
HELD: In our view, the trial Court, the lower appellate Court and the learned Single Judge of the High Court misdirected themselves in deciding the issue relating to Dhapubai’s consent to the adoption of Ghisalal by Gopalji. All the Courts held that the consent of Dhapubai can be presumed because she was present in the ceremonies of adoption. The learned Single Judge went a step further and observed that failure of Dhapubai to challenge the adoption deed is a strong circumstance which goes to show that she had consented to the adoption of Ghisalal by her husband. Unfortunately, all the Courts completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant. Neither Ghisalal nor any of the witnesses examined by him stated that before taking Ghisalal in adoption, Gopalji had consulted Dhapubai or taken her in confidence and the latter had given her consent or agreed to the adoption of Ghisalal or that she had taken prominent part in the adoption ceremonies. All of them made a parrot like statement that Dhapubai was sitting with other women below the platform (chabutra). By no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the Courts to draw an inference that she had given consent for the adoption of Ghisalal.
Another grave error committed by all the Courts is that they have presumed the consent of Dhapubai by relying upon the contents of the deed of adoption (Exhibit P-1) in which Gopalji is said to have recorded that it was his and his wife’s esteemed desire to take Ghisalal in adoption. It was neither the pleaded case of Ghisalal nor any evidence was produced by him to prove that Dhapubai was a signatory to Exhibit P-1 or that she was present at the time of execution and/or registration of Exhibit P-1. Therefore, the contents of Exhibit P-1 could not be made basis for assuming that Dhapubai was a party to the adoption of Ghisalal.
The so called failure of Dhapubai to challenge Exhibit P-1 cannot be used against her because Ghisalal did not adduce any evidence to show that after execution of the deed of adoption, Dhapubai was made aware of the same or a copy thereof was made available to her. In the absence of such evidence, it cannot be assumed that Dhapubai was aware of the execution and registration of the deed of adoption and she deliberately omitted to challenge the same.
While analyzing and evaluating the evidence of the parties, the Courts below failed to notice an important lacuna in Ghisalal’s case, that is, non examination of Kishanlal who, as per Ghisalal’s own version had not only taken active part in the ceremonies of adoption but was also a signatory to the deed of adoption. The statements of PW-7 Ramchander Sharma, Advocate and his clerk PW-8 Imdad Ali show that the written statement in the suit filed by Pannalal was drafted under the instructions of Kishanlal and he had signed the same as guardian of Ghisalal. This shows that Kishanlal had played the most pivotal role in the adoption of Ghisalal by Gopalji. Therefore, he was the best person who could support Ghisalal’s plea that he was taken in adoption by Gopalji and Dhapubai had given consent for the same. No explanation has been given why Kishanlal was not examined despite the fact that he was not only actively involved at various stages of the adoption but was also instrumental in Ghisalal’s admission in the school and defending the case filed by Pannalal. If the statements of Ghisalal and Devram are read in conjunction with the fact that written statement in Suit No.76A of 1964 Pannalal v. Ghisalal and another was filed by Kishanlal in February, 1966, there remains no doubt that testimony of Kishanlal was most crucial and yet he was not examined. The trial Court did take cognizance of this omission but brushed aside the same with a cryptic observation that no objection was raised from the side of the defendants that plaintiff was not given in adoption by his natural father. The lower appellate Court and the learned Single Judge of the High Court did not even advert to this important lacuna which, in our view, would have made any person of reasonable prudence to doubt the bona fides of Ghisalal’s claim that he was adopted by Gopalji with the consent of Dhapubai.
In view of the above discussion, we hold that the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the learned Single Judge of the High Court that Gopalji had adopted Ghisalal with the consent of Dhapubai is perverse inasmuch as the same is based on unfounded assumptions and pure conjectures. We further hold that Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act. As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable and the findings recorded by the trial Court, the lower appellate Court and/or the High Court on the validity of Gift Deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be set aside.
In the result, Civil Appeal Nos.6375-6376 of 2002 are allowed. The judgments and decrees passed by the trial Court, the lower appellate Court and the High Court are set aside and the suit filed by Ghisalal is dismissed. As a sequel to this, Civil Appeal Nos.6373-6374 of 2002 are dismissed.
Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 — Adoption by male Hindu — Consent of wife — Existence of — Requirements and presumption of — Discussed.
HELD: The consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject matter of challenge before the Court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption. The wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption.
Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 8 & 11 — Adoption by a female Hindu — Permissibility of — Scope — Held, a female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right. A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son’s daughter living at the time of adoption — However, if she is married, a female Hindu cannot adopt a son or a daughter during the lifetime of her husband unless the husband is of unsound mind or has renounced the world.
(Para 19)
Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 7 — Adoption by male Hindu — Consent of wife for — Necessity — Scope and object of — Discussed.
HELD: By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The mandatory requirement of the wife’s consent enables her to participate in the decision making process which vitally affects the family. If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family then she can veto his discretion.
By incorporating the requirement of wife’s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution.
Ghisalal v. Dhapubai [Bench Strength 2], Civil Appeal Nos. 6373-6374/2002 (12/01/2011), 2011(1) SCV(Civil) 342: 2011 AIR(SC) 644: 2011(2) SCC 298: 2011(1) JT 213: 2011(1) SCALE 325: 2011(1) Supreme 297: 2011(1) SLT 348 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 10 & 16 — Adoption of person more than 15 years — Validity of — Cogent and reliable evidence that there is a custom in “Kamma” community of Andhra Pradesh for adoption of a boy even above age of 15 years — Said custom and said adoption also recorded in a registered deed of adoption — Said registered adoption deed went unrebutted and unchallenged — Above said custom has been recognised by Andhra Pradesh High Court — Thus the adoption of respondent is legal and valid — Evidence Act, 1872 — Section 57.
(Paras 13 to 17)
Atluri Brahmanandam v. Anne Sai Bapuji [Bench Strength 2], Civil Appeal No. 9714/2010 (Arising out of SLP (C) No. 28504/2008) (18/11/2010), 2011 AIR(SC) 545: 2010(14) SCC 466: 2010(12) JT 441: 2010(12) SCALE 157: 2010(7) Supreme 868: 2010(8) SLT 398 [Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Document recording an adoption — Registration thereof — Presumption by court in case of — Held, If there is any document purporting to record an adoption made and is signed by the person giving as well as the person taking the child in adoption and is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disproved.
(Para 12)
Atluri Brahmanandam v. Anne Sai Bapuji [Bench Strength 2], Civil Appeal No. 9714/2010 (Arising out of SLP (C) No. 28504/2008) (18/11/2010), 2011 AIR(SC) 545: 2010(14) SCC 466: 2010(12) JT 441: 2010(12) SCALE 157: 2010(7) Supreme 868: 2010(8) SLT 398 [Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 10 — Person capable of being adopted — Requirement of — Held, by virtue of section 10(iv), a person to be adopted should not have completed the age of 15 years. But there is also an exception provided therein to the aforesaid required qualification which provides that if there is a custom or usage applicable to the parties permitting persons who have completed the age of 15 years being taken in adoption, such a person could also be validly adopted.
(Para 12)
Atluri Brahmanandam v. Anne Sai Bapuji [Bench Strength 2], Civil Appeal No. 9714/2010 (Arising out of SLP (C) No. 28504/2008) (18/11/2010), 2011 AIR(SC) 545: 2010(14) SCC 466: 2010(12) JT 441: 2010(12) SCALE 157: 2010(7) Supreme 868: 2010(8) SLT 398 [Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — Custody order — Alteration and modification of — Permissibility of — Scope — Held, custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child — Guardians and Wards Act, 1890 — Sections 7 & 17 — Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 13.
(Para 16)
Vikram Vir Vohra v. Shalini Bhalla [Bench Strength 2], Civil Appeal No. 2704/2010 (Arising out of SLP (C) No. 19935/2009) (25/03/2010), 2010 AIR(SC) 1675: 2010(3) SCR 775: 2010(4) SCC 409: 2010(3) JT 213: 2010(3) SCALE 187: 2010(2) Supreme 557: 2010(2) SLT 688 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 26 — Custody of child — Determination — Consideration required for — Held, the welfare of child’s is of paramount consideration in matters relating to child custody and to be given a primacy even over statutory provisions — Guardians and Wards Act, 1890 — Sections 7 & 17 — Hindu Adoption and Maintenance Act, 1956 — Sections 6 & 13.
Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673, Referred.
(Para 14)
Vikram Vir Vohra v. Shalini Bhalla [Bench Strength 2], Civil Appeal No. 2704/2010 (Arising out of SLP (C) No. 19935/2009) (25/03/2010), 2010 AIR(SC) 1675: 2010(3) SCR 775: 2010(4) SCC 409: 2010(3) JT 213: 2010(3) SCALE 187: 2010(2) Supreme 557: 2010(2) SLT 688 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Compassionate employment — Denial of, valid, adoption of respondent by deceased, lack of proof of, effect of — Succession certificate — CS, an employee posted as had master was died unmarried — `GS’ is the brother of deceased employee — `GS’ and his son obtained succession certificate — Application of respondent for compassionate appointment by claiming himself as adopted son of deceased-employee — Rejection of claim for compassionate appointment — Despite of rejection order for compassionate appointment passed — Subsequent cancellation of order — Validity — Application for grant of succession certificate was not filed by respondent alone — Factum of adoption was mentioned in application for succession certificate — Even in High Court certificate of respondent’s father name was not mentioned as `CS’ — Adoption of respondent not proved — Succession certificate neither confers any status nor prove any relationship between deceased and the applicant — Cancellation of appointment order is valid — Hindu Adoption and Maintenance Act, 1956 — Section 16 — Evidence Act, 1872 — Section 106.
HELD: We have noticed hereinbefore that in the application for grant of succession certificate, G.S. Sengar was described as his father. Even in the mark sheets which had been drawn up on the basis of the record maintained in the school in which he was studying, his father’s name was G.S. Sengar. It may be correct that for the purpose of proving that the respondent was adopted son of the deceased, a registered deed of adoption was not imperative in character, but then, he was required to prove that datta homan ceremony or compliance of the other statutory conditions for a valid adoption had taken place.
In terms of Section 106 of the Indian Evidence Act, the respondent having special knowledge in regard thereto, the burden of proving the fact that he was adopted by Chittaranjan Singh Sengar was on him. He did not furnish any evidence in that behalf. Even the records clearly show to the contrary.
Legality of grant of a valid appointment was dependant upon the proof that the respondent was the adopted son of Chittaranjan Singh Sengar. He not only failed to do so, the materials brought on record by the parties would clearly suggest otherwise. His application for grant of appointment on compassionate ground was rejected by the Joint Director of Education. He did not question the legality or validity thereof. He, it can safely be said, by suppressing the said fact obtained the offer of appointment from an authority which was lower in rank than the Joint Director, viz., the Deputy Director. When such a fact was brought to the notice of the Deputy Director that the offer of appointment had been obtained as a result of fraud practiced on the Department, he could, in our opinion, cancel the same.
Respondent keeping in view the constitutional scheme has not only committed a fraud on the Department but also committed a fraud on the Constitution. As commission of fraud by him has categorically been proved, in our opinion, the principles of natural justice were not required to be complied with.
The High Court, therefore, must be held to have committed a serious error in passing the impugned judgment.
The very fact that the respondent had filed an application for grant of succession certificate along with his father, showing themselves to be the heirs and legal representatives of the deceased, is itself sufficient proof to show that he did not claim any benefit in regard to the debts of the deceased as his adopted son or otherwise.
State of Chhatisgarh v. Dhirjo Kumar Sengar [Bench Strength 2], Civil Appeal No. 3242/2009 [Arising out of SLP (Civil) No. 6230/2007 (05/05/2009), 2009 AIR(SC) 2568: 2009(7) SCR 1016: 2009(13) SCC 600: 2009(8) JT 407: 2009(8) SCALE 713: 2010(6) SLT 123: 2009 LIC 3011: 2009(7) SLR 140 [S.B. Sinha, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Adoption — Presumption — Unregistered adoption deed, not carry any presumption of its validity as envisaged under section 16.
State of Chhatisgarh v. Dhirjo Kumar Sengar [Bench Strength 2], Civil Appeal No. 3242/2009 [Arising out of SLP (Civil) No. 6230/2007 (05/05/2009), 2009 AIR(SC) 2568: 2009(7) SCR 1016: 2009(13) SCC 600: 2009(8) JT 407: 2009(8) SCALE 713: 2010(6) SLT 123: 2009 LIC 3011: 2009(7) SLR 140 [S.B. Sinha, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 16 — Valid adoption — Proof — Registered deed of adoption not imperative for the purpose of providing adoption — Person claiming adoption required to prove taking place of `Datta Haman Ceremony’ or compliance of other statutory conditions.
State of Chhatisgarh v. Dhirjo Kumar Sengar [Bench Strength 2], Civil Appeal No. 3242/2009 [Arising out of SLP (Civil) No. 6230/2007 (05/05/2009), 2009 AIR(SC) 2568: 2009(7) SCR 1016: 2009(13) SCC 600: 2009(8) JT 407: 2009(8) SCALE 713: 2010(6) SLT 123: 2009 LIC 3011: 2009(7) SLR 140 [S.B. Sinha, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 13(1)(a) & 13-B — Divorce petition — Transfer of, disposal of matter in terms of settlement — Settlement between parties in Mediation and Conciliation proceedings — Parties to file a joint petition u/s. 13-B of the Act for grant of a decree of divorce on ground of mutual consent — Husband agreed to pay a sum of Rs. 7,00,000/- to the wife towards all her claims — Petition disposed of in terms of settlement arrived at between the parties — Civil Procedure Code, 1908 — Section 24 — Hindu Adoption and Maintenance Act, 1956 — Section 8.
Mitali v. Dababrata [Bench Strength 2], TP (C ) No. 624/2008 (24/04/2009), 2009(6) SCR 1020: 2009(14) SCC 199: 2009(6) SCALE 647 [Arijit Pasayat, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Sections 24 & 13 — Interim maintenance — Enhancement of, disposal of petition for, before disposal of suit for divorce, necessity of — When application for enhancement of maintenance of amount to wife/appellant is pending in the Court, it is the duty of court to go into that question and dispose of the said application before disposal of suit for divorce — Original order granting Rs. 4000/- per month as maintenance to wife — After five years, finding the amount not sufficient for her sustenance, wife filed application seeking enhancement of amount — Parties were married in year 1978 — Husband, a scientist earning more than Rs. 40,000/- per months filed a divorce petition — Wife although highly educated, being housewife, having no source of income — By order dated 30.5.2003, her application u/s 24 was partly allowed — Trial Court awarded her a sum of Rs. 4,000/- per month — In revision, High Court directed the lower court to dispose of matter as expeditiously as possible and also directed the wife not to press enhancement in amount of maintenance till disposal of suit — Held, direction given by High Court to wife not sustainabel — It was the duty of Court to go into the question of maintenance and dispose of the said application before disposal of suit for divorce — Wife held entitled to Rs. 7,000/- per month from the date of filing application u/s 24 — Constitution of India — Article 227 — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 18.
HELD: The High Court was not justified in passing the impugned order in the manner it has done. It is not disputed that the application under Section 24 of the Act was partly allowed by the trial Court in the year 2003 i.e. at least five years back. She has already filed an application before the trial Court for enhancement of her maintenance from Rs. 4000/- per month.
In the application for enhancement, the wife has also claimed that since the husband has been earning more than Rs. 80,000/- per month now, the maintenance amount should also be increased. After examining the impugned order of the High Court, we have no other alternative but to say that virtually, the application filed by the wife/appellant for enhancement of the maintenance, which is pending, has been rejected. Furthermore, it is common experience that in spite of directions given by the High Court, for the reasons best known, directions made by it cannot be carried out. In any view of the matter, when the application for enhancement of the maintenance of the amount to the wife/appellant was pending in the Court, it was its duty to go into that question and dispose of the said application before the suit for divorce is disposed of by it. Mr. Ranjan Mukherjee, appearing on behalf of the husband/respondent, submits that if the impugned order of the High Court at this stage is set aside, the disposal of the Matrimonial Suit shall be unnecessarily delayed. Considering this aspect of the matter, we therefore, dispose of this appeal in the following manner:
(1) The wife/appellant shall be entitled to Rs. 7000/- per month instead of Rs. 4000/- per month from the date of filing the application under Section 24 of the Act.
(2) The arrears of maintenance i.e. difference of Rs. 3000/- per month i.e. from Rs. 4000/- to Rs. 7000/- would be paid/deposited by the husband/respondent within three months from this date to the wife/appellant. Till the decision of the suit, the husband shall go on paying/depositing @ Rs. 7000/- per month to the wife/appellant subject to any further order that may be passed in the event, the suit is not decided by the Court within the time specified herein below or increase of the said maintenance of Rs. 7000/- per month is necessitated for any reason whatsoever.
The Trial Court is directed to dispose of the suit positively within a year from the date of supply of a copy of this order to it without granting any unnecessary adjournments to either of the parties.
Sipra Bhattacharyya v. Apares Bhatacharyya [Bench Strength 2], CA No. 307/2009 (19/01/2009), 2009(4) SCC 366: 2009(1) SCALE 662: 2009(2) SLT 589: 2009(2) SCC(Cr) 296 [Tarun Chatterjee, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 18 & 3(b) — Maintenance to wife — Scope, maintenance encompasses a provision for residence also — Suit by respondent-husband for declaration of title in respect of property where defendant-wife was residing and for recovery of possession thereof decreed by trial court and upheld by first appellate court — Second appeal dismissed by High Court, holding that when relationship between husband and wife is estranged, wife cannot claim a right of residence in matrimonial home so as to resist decree of possession — Justification — Held, maintenance encompasses a provision for residence also — Said aspect has not been considered by High Court — Matter to be remitted to High Court for fresh consideration in light of judgment in Mangat Mal’s case, 1995(6) SCC 88 — Appeal disposed of, accordingly — Hindu Succession Act, 1956 — Section 14(1) — Transfer of Property Act, 1882 — Section 39.
B.P. Achala Anand Vs. S. Appi Reddy and Anr., 2005(2) SCALE 105, Relied on.
Komalam Amma v. Kumara Pillai Raghavan Pillai [Bench Strength 2], Civil Appeal No. 6658/2008 (14/11/2008), 2009 AIR(SC) 636: 2008(16) SCR 76: 2008(14) SCC 345: 2008(12) JT 157: 2008(14) SCALE 470: 2008(9) SLT 227 [Arijit Pasayat, J.: Mukundakam Sharma, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Sections 36 & 37 — “Maintenance” and “Support” — Meaning of — Suit for a decree of divorce — Application for reimbursement of medical expenses during pendency of, maintainable — Held, the two expressions “maintenance” and “support” in 1954 Act are comprehensive and of wide amplitude and they would take within their sweep medical expenses — No infirmity in order of court below in said respect — Appeal therefore, to be dismissed — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 3(b) — Hindu Marriage Act, 1955 — Sections 24 & 25 — Dissolution of Muslim Marriages Act, 1939 — Section 2 — Muslim Women (Protection of Rights on Divorce) Act, 1986 — Sections 3 & 4 — Parsi Marriage and Divorce Act, 1936 — Sections 39 to 40 — Words and Phrases — Maintenance and support — Meaning of.
HELD: The right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained finality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act, 1956, in our considered opinion, the two expressions, `maintenance’ and `support’ in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses.
On the basis of material on record, the trial Court, after hearing the parties, held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right to get medical reimbursement from her husband. We see no infirmity in the decision or reasoning of the Courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under Article 136 of the Constitution. The appeal in our view, therefore, has no substance and must be dismissed.
For the foregoing reasons, the appeal deserves to be dismissed and is accordingly dismissed with costs.
The learned counsel for the appellant-husband at this stage prayed for instalments or extension of time to make payment as per the order of the High Court. In our opinion, the prayer is reasonable. On the facts and in the circumstances of the case, ends of justice would be met if we grant some time to the appellant-husband to pay the amount. Let the said amount be paid by the husband latest by December 31, 2008.
Ordered accordingly.
Rajesh Burmann v. Mitul Chatterjee (Barman) [Bench Strength 2], Civil Appeal No. 6443/2008 (04/11/2008), 2009 AIR(SC) 651: 2008(15) SCR 264: 2009(1) SCC 398: 2008(12) JT 145: 2008(14) SCALE 372: 2008(8) SLT 688: 2009(1) SCC(Cr) 506 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Special Marriage Act, 1954 — Sections 27, 36 & 37 — Medical expenses — Remedy to claim, suit for decree of divorce u/s 27 filed, application u/s 151 CPC claiming for medical reimbursement, maintainable — Proceedings have been initiated under 1954 Act and matrimonial suit was pending — In such circumstances, it was open to applicant-wife to institute such an application — Even otherwise, the provisions of C.P.C. would apply to court exercising power under the 1954 Act — Therefore, objection to jurisdiction of trial court has no substance and to be rejected — Civil Procedure Code, 1908 — Section 151 — Criminal Procedure Code, 1973 — Section 125 — Hindu Adoption and Maintenance Act, 1956 — Section 3(b).
Rajesh Burmann v. Mitul Chatterjee (Barman) [Bench Strength 2], Civil Appeal No. 6443/2008 (04/11/2008), 2009 AIR(SC) 651: 2008(15) SCR 264: 2009(1) SCC 398: 2008(12) JT 145: 2008(14) SCALE 372: 2008(8) SLT 688: 2009(1) SCC(Cr) 506 [C.K. Thakker, J.: D.K. Jain, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Section 115 — Revision petition — Dismissal of, without going into the merit of the case merely on the ground of non-payment of some of the amount of maintenance, when improper — Petitioner liable to pay to respondent a total sum of Rs. 4,62,000/- @ Rs. 7000/- per month — Direction of High Court to pay maintenance @ Rs. 10,000/- p.m. — Petitioner paid a total of Rs.3,86,000/- @Rs. 7000/- per month and only Rs. 76,000/- was still due — High Court rejected revision only on the ground of non-payment of maintenance @ Rs. 10,000/- per moth without going into merit of the case — Impugned order therefore unjustified and to be set aside — Matter remitted back to High Court to decide on merits — Hindu Marriage Act, 1955 — Sections 24 & 25 — Hindu Adoption and Maintenance Act, 1956 — Sections 18 to 20.
Sanjay Narain v. Monika [Bench Strength 2], Civil Appeal No. 5647/2008 (15/09/2008), 2008(16) SCC 503: 2008(12) SCALE 490: 2008(8) SLT 67 [Tarun Chatterjee, J.: Aftab Alam, J.] <<LAWPACK SUPREME COURT>>
Hindu Succession Act, 1956 — Section 14(1) — Applicability of — Scope, mere possession does not automatically attract s.14; suit for declaration and possession, failure to frame issue regarding nature of property, lead evidence and file counter claim etc., effect of — Property possessed by Hindu widow — Suit for declaration and recovery of possession — Property in question jointly purchased by plaintiff and his uncle `TKVM’ in the year 1963 — Relinquishment of share by `TKVM’ in favour of plaintiff vide registered release deed — Defendant is the widow of `TKVM’s son who was permitted to reside in the suit property as a licensee — Refusal to vacate the premises despite of requests — Plaintiff filed suit for declaration of his absolute ownership and for recovery of possession — Defendant claims to be in possession of property in lieu of maintenance and it is a joint family property — No specific issue regarding nature of property framed — No issue relating to section 14(1) framed nor evidence led — No counter-claim filed by defendant — Defendant cannot said to become absolute owner of property pursuant to section 14(1) — Hindu Adoption and Maintenance Act, 1956 — Section 19 — Specific Relief Act, 1963 — Sections 5, 6 & 34.
V. Tulasamma and Ors. v. Sesha Reddy (D) by LRs., 1977(3) SCC 99, Sadhu Singh v. Gurdwara Sahib Narike and Ors., 2006(8) SCC 75, Sharad Subramanyan v. Soumi Mazumdar and Ors., JT 2006(11) SC 535 : 2006(8) SCC 91, Eramma v. Verrupanna and Ors., 1966(2) SCR 626, Referred.
G. Rama v. T.G. Seshagiri Rao [Bench Strength 2], Civil Appeal No. 4215/2008 (07/07/2008), 2008(10) SCR 152: 2008(12) SCC 392: 2008(7) JT 479: 2008(9) SCALE 666: 2008(7) SLT 425 [Arijit Pasayat, J.: Lokeshwar Singh Panta, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 83, 84, 85 & 439(2) — Attachment of properties and cancellation of bail — Order of, when invalid — Complaint against husband and parents-in-law — Grant of bail by trial court subject to condition of not leaving India but father-in-law left India for treatment — Cancellation of bail by High Court directing concerned M.M. to issue standing warrant of arrest against appellants as and when they return to India — Appellant No. 2 also declared absconder on an application of complainant-wife and a public proclamation also issued attaching their properties if not present within 30 days — Order of attachment also passed as they failed to present within 30 days — Application for cancellation of said standing warrants by appellants after returning to India allowed by Trial Court on condition of not leaving India without permission of court and surrendering of passport but set aside by session judge — High Court also dismissed the petition challenging said order — High Court committed a manifest illegality in directing cancellation of bail in so far as it failed to take into consideration that the factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different — Further application for cancellation of bail was filed on a misstatement that passport has not been surrendered — Order of attachment against property of appellants also not permissible — Thus in view of entire facts and circumstances, order of High Court unjustified and to be set aside — Hindu Adoption and Maintenance Act, 1956 — Sections 3(b), 4, 18, 19 & 28 — Protection of Women From Domestic Violence Act, 2005 — Sections 17 & 20 — Penal Code, 1860 — Sections 406 & 114 — Constitution of India — Article 21.
HELD: The High Court committed a manifest illegality in directing cancellation of bail in so far as it failed to take into consideration that the factors relevant for setting aside an order granting bail and directing cancellation of bail are wholly distinct and different.
The learned Metropolitan Magistrate in passing the order dated 27th June, 2006 while granting bail took into consideration all the relevant factors. He imposed a fine on them. Even the passports had been surrendered. Application for cancellation of bail was filed on a mis-statement that the passports had not been surrendered. Various contentions, as noticed hereinbefore, in regard to purported suffering of the wife appears to have been taken into consideration which were wholly irrelevant. We have noticed hereinbefore that such contentions have also been raised before us not on the basis that there exists and legal principle behind the same but as an argument of desperation.
Keeping in view the entirety of the facts and circumstances of the case we are of the opinion that gross injustice has been caused to the appellant. She did not deserve such harsh treatments at the hands of the High Court. Respondent No.3 speaks of her own human rights, forgetting the human rights of the appellant, far less the fundamental right of life and liberty conferred on an accused in terms of Article 21 of the Constitution of India.
We are at a loss to understand as to on what premise such a contention has been raised. If we accept the contention of the learned counsel the same would mean that we send the old couple to jail or deprive them of their lawful right of a valuable property and/or ask them to meet obligations which statutorily are not theirs. Such a direction, in our opinion, should also not be passed, keeping in view the conduct of the 3rd respondent. She not only filed a large number of cases against her in- laws, some of which have been dismissed for default or withdrawn but also have been filing applications for cancellation of their bail on wholly wrong premise.
Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel [Bench Strength 2], Civil Appeal No.2003/2008 with Criminal Appeal No.502/2008 (14/03/2008), 2008 AIR(SC) 2675: 2008(4) SCR 1077: 2008(4) SCC 649: 2008(3) JT 530: 2008(4) SCALE 601: 2008(2) Supreme 413: 2008(3) SLT 630: 2008(2) Crimes 45(SC): 2008(2) JCC 1127 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Section 4 — Overriding effect of Act — Scope — Held, by virtue of said provision, any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid — In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable.
Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel [Bench Strength 2], Civil Appeal No.2003/2008 with Criminal Appeal No.502/2008 (14/03/2008), 2008 AIR(SC) 2675: 2008(4) SCR 1077: 2008(4) SCC 649: 2008(3) JT 530: 2008(4) SCALE 601: 2008(2) Supreme 413: 2008(3) SLT 630: 2008(2) Crimes 45(SC): 2008(2) JCC 1127 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 4, 18, 19 & 3 — Maintenance of married and widowed wife — Liability of, on whom lies — Held, maintenance of a married wife during subsistence of marriage, is on the husband — Obligation on parent in laws to maintain daughter-in-law arise only when the husband has died — Such an obligation can be met from properties of which the husband is a co-sharer and not otherwise.
HELD: Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.
Wholly un-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in-law.
Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise.
Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel [Bench Strength 2], Civil Appeal No.2003/2008 with Criminal Appeal No.502/2008 (14/03/2008), 2008 AIR(SC) 2675: 2008(4) SCR 1077: 2008(4) SCC 649: 2008(3) JT 530: 2008(4) SCALE 601: 2008(2) Supreme 413: 2008(3) SLT 630: 2008(2) Crimes 45(SC): 2008(2) JCC 1127 [S.B. Sinha, J.: V.S. Sirpurkar, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 3 to 5, 6 & 11 — Adoption by custom — Custom, existence of, lack of sufficient proof of — Partition suit by appellant in respect of property jointly owned by `J’, `DN’ `AS’ and `BM’ all the son of one `PR’ on the ground that he acquired right in said property by sale-deed executed by widow of `CB’ who was adopted by `J’ being son of `J’s real sister — Reliance placed on evidence of three witness to prove adoption — PW1 and PW2 did not speak about any custom of adoption — Appellant-P3 also accepted that he did not have personal knowledge about the custom — Evidence of DW-3 referred by first appellate court to hold that he had accepted the existence of custom also not acceptable being contrary to existence of custom — Thus suit of appellant rightly dismissed by trial court and High Court — Appeal meritless and to be dismissed.
HELD: Coming to the facts of the case P.W.1 did not speak any thing on the position either of a local custom or of a custom or usage by the community, P.W.2, Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the Court. He did not speak a word either with regard to the local custom or the custom of the community. P.W.3 as observed by the lower appellate Court was only 43 years’ old at the time of his deposition where as the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by P.W.2, Murari Lal. He himself did not speak of such a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom prevalent either in township of Hapur and around it or in the community of Vaish. The evidence of D.W.3 refers only to one instance. From his evidence it cannot be inferred that Om Prakash had adopted Munna Lal who was his real sister’s son. As already pointed out above, the trial court found that the evidence of D.W.3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real sister of Om Prakash. Besides, this solitary instance of adoption of his sister’s son cannot amount to long usage, which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved.
So far as the evidence adduced is concerned, reliance was placed on the evidence of three witnesses. As noted above PW 1 did not speak about any custom. Similarly, PW 2 did not speak about any custom though he claimed to be present at the time of adoption. The present appellant was PW 3. He is outsider of the family. He also accepted that he did not have personal knowledge about the custom. He only stated that PW2 told him about the custom. Significantly PW2 did not speak about any existence of any custom. Appellant PW 3 also accepted that he did not find out as to what was the custom if any and also that he does not know any other instance. Though the Appellate Court had referred to evidence of DW3 to hold that he had accepted that the custom was in existence. As a matter of fact, his evidence is contrary to and is specific that there was no custom. The First Appellate Court had relied on the evidence of Munna Lal to conclude that the son of Reba Saran was given in adoption. Munna Lal specifically stated that the son of Jagannath who was taken in adoption is not the son of sister of Saran.
In view of the aforesaid factual situation and the principles of law enumerated above, the inevitable conclusion is that the appeal is sans merit, deserves dismissal, which we direct.
Sulekh Chand v. Satya Gupta [Bench Strength 2], CA No. 1380/2002 (04/03/2008), 2008(3) SCR 833: 2008(13) SCC 119: 2008(4) SCALE 377: 2008(3) SLT 746 [Arijit Pasayat, J.: P. Sathasivam, J.] <<LAWPACK SUPREME COURT>>
Hindu Adoption and Maintenance Act, 1956 — Sections 8(c), 6, 7, 11(i) & (ii) — Adoption by a female Hindu who is leading life like a divorced women — Validity of, determination, conceptual and contextual difference between a divorced women and one who is leading life like a divorced women — One `MB’ leading life like a divorced women was given 32 acres of land by her parents for her maintenance — Notice u/s 10 of M.P. Ceiling Act — Reply by `MB’ pleading appellant as the adopted son and both constituting joint family entitled to retain the land disbelieved by Sub-Divisional Officer — Held, there is a conceptual and contextual difference between a divorced women and one who is leading life like a divorced women and both cannot be equated — Therefore as per section 8(c) `MB’ was not entitled to declaration that appellant is her adopted son — However, in view of submission of appellant that in view of peculiar back ground, the Government may be directed to consider appellant’s case for allotment of land from the surplus land, appellant was permitted to be in possession of land for six months by which time Government may be moved for an appropriate decision in said respect — Appeal to be dismissed subject to said observation — M.P. Ceiling on Agricultural Holdings Act, 1960 — Section 10.
HELD: It follows from Clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself even with the consent of her husband because the Section expressly provides for cases in which she can adopt a son or daughter to herself during the life time of the husband. She can only make an adoption in the cases indicated in clause (c).
It follows from the language of Section 8 read with Clauses (i) & (ii) of Section 11 that the female Hindu has the capacity and right to have both adopted son and adopted daughter provided there is compliance of the requirements and conditions of such adoption laid down in the Act. Any adoption made by a female Hindu who does not have requisite capacity to take in adoption or the right to take in adoption is null and void. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no dissolution of the marriage. All that the evidence led points out is that the husband and wife were staying separately for a very long period and Mishri Bai was living a life like a divorced woman. There is conceptual and contextual difference between a divorced woman and one who is leading life like a divorced woman. Both cannot be equated. Therefore in law Mishri Bai was not entitled to the declaration sought for. Here comes the social issue. A lady because of her physical deformity lived separately from her husband and that too for a very long period right from the date of marriage. But in the eye of law they continued to be husband and wife because there was no dissolution of marriage or a divorce in the eye of law. Brajendra Singh was adopted by Mishri Bai so that he can look after her. There is no dispute that Brajendra Singh was in fact doing so. There is no dispute that the property given to him by the will executed by Mishri Bai is to be retained by him. It is only the other portion of the land or