LexBRAJENDRA SINGH versus STATE OF M.P. AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 1 S.C.R. 593
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BRAJENDRA SINGH
A
V.
STATE OF M.P. AND ANR.
(C.A. No. 7764 of 2001)
JANUARY 11, 2008
B
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
Hindu Adoption and Maintenance Act, 1956:
ss. B(c) rlw ss. 6(1) and 11- Hindu wife living separately c
from her husband claiming to have adopted a son and seeking
a declaration to that effect- HELD: There being no dissolution
of marriage, in law the wife was not entitled to declaration sought
for - M. P. Ceiling on Agricultural Holdings Act, 1960 - s. 10.
Madhya Pradesh Ceiling on Agricultural Holdings Act, D
1960:
-{
s.10 - Notice indicating surplus land - Noticee, a Hindu
wife living separately from her husband for a long time,
claiming to have adopted a son - Consequently, claiming to
have constituted joint family with the son, seeking to assess E
the prescribed limit accordingly - HELD: Adoption not being
permissible under the law, the land declared as in excess vests
in Government - Hindu Adoption and Maintenance Act, 1956
- ss. B(c) 6(1) and 11.
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The appellant was stated to have been adopted in
F
,
1970 by one 'M', a crippled woman, practically having no
legs, who soon after her marriage started living with her
parents. She was given 32 acres of land by her parents
for her maintenance. She was served a notice under s.10
of the M.P. Ceiling on Agricultural Holdings Act, 1960 G
stating that her holding was more than the prescribed limit.
She filed objections contending that since the appellant
was her adopted son and both of them constituted a joint
family, they were entitled to retain 54 acres of land. Her
593
H
594
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A claim was rejected disbelieving her case of adoption. 'M' ,,,
then filed a suit seeking declaration that the appellant was
her adopted son. During the pendency of the suit she died
after executing a registered will bequeathing all her
properties in favour of the appellant. The suit was decreed.
B The first appellate court affirmed the decree. The High
Court, in the second appeal filed by the respondent-
defendants held that in absence of the consent of M's
'f
husband, the adoption was not valid.
c
In the instant appeal it was contended for the
appellant that since 'M' was living separately for a very
long period from the date of the marriage, the trial court
and the first appellate court rightly drew the inference that
she ceased to be a married woman.
D
Dismissing the appeal, the Court
HELD: 1.1 In view of s.8 of the Hindu Adoption and
.,._
Maintenance Act, 1956, a married woman cannot adopt at
all during the subsistence of the marriage except when
... -
the husband has completely and finally renounced the
E world or has ceased to be a Hindu or has been declared
by a court of competent jurisdiction to be of unsound
mind. If the husband is not under such disqualification,
the wife cannot adopt even with the consent of the
husband whereas the husband can adopt with the
F consent of the wife. [para 18) [603-D & E]
)r
1.2 In view of the provisions of ss.8(c), 11 and 6(1),
'
only a female Hindu who is married and whose marriage
has been dissolved, i.e. who is a divorcee, has the capacity
to adopt. Any adoption made by a female Hindu who does
G not have requisite capacity to take in adoption or the right
to take in adoption is null and void. [para 1 OJ [599-E & F]
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J:
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1.3 Admittedly, in the instant case, there is no
dissolution of the marriage. All that the evidence led points
H out is that the husband and the wife were staying
BRAJENDRA SINGH v. STATE OF M P. AND ANR.
595
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separately for a very long period and the wife was living a A
life like a divorced woman. There is a 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 the wife was not entitled to
the declaration sought for. [para 10] [599-F & G]
B
Jolly Das (Smt.) Alias Moulick v. Tapan Ranjan Das
1
[1994(4) sec 363 - distinguished.
V. TS. Chandrasekhara Mudaliar v. Kulandaivelu
Mudaliar AIR 1963 SC 185; Hem Singh v. Harnam Singh AIR c
1954 SC 581; Amarendra Man Singh Bhramarbar v. Sanatan
Singh AIR 1933 PC 155; Kishori Lal v. Chaltibai AIR 1959
SC 504 - referred to.
Hindu Law by S.V. Gupte, 3rd Edn., at pp. 899-900;
Manu, by Sir W. Jones Chapter IX, pp. 141-42 ; Mayne's D
Hindu Law and Usage, 12th Edn., p. 329 - referred to.
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