LexDHANRAJ versus SMT. SURAJ BAI
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DHANRAJ
v.
SMT. SURAJ BAI
April 3, 1975.
[V. R. KRISHNA IYER AND N. L. UNTWAL!A, JJ.J
Jlindu ,4._doptions and Maintenance
Act. 1956-Ss. 6(ii), 9 and 11-IJ
step-mother could give step-son in adoption in the absence of natural parents-
If a nlaior could be given in adoption.
73
A
B
Section 6(ii) of the Hindu Ao.option and Maintenance Act, 1956 states C
that no adoption shall be valid unless the person giving in adoption had the
<:apacity to do so.
Section 9(1) says that no -person except the father or
mother or the guardian of a child shall have the capacity to give a child
in adoption.
Section 11 (vi) says that the
child to be adopted must be
actually given ancl taken in
adoption
by
the parents or
guardian
con-
cerned.
The appellant, who was 21 years old, was adopted by the respondent
and her husband.
His natural parents having been dead, he was given in
D
adoption by his step-mother.
Subsequently, however, the respondent and her
husband filed a suit questioning the validity of the adoption and for declara~
tion that the adoption was illegal and invalid. The appellant claimed that
under the Hindu Adoptions and Maintenance Act, 1956 the step-mother was
-competent to give him in adoption.
'
The trial court held that the adoption was invalid on the grounds that
the appellant had been given in adoption by his step-mother, who was not E
competent to "do so.
The High Court upheld the view of the trial court.
Dismissing the appeal to this Court.
HELD : (1) T~e. 'physical
a~t of
giving and receiving was absolutely
necessary to. the vahd1ty of adoption under the Hindu Law as it existed before
the co!D-1ng into fo\ce of the Act.
Identical is the position under the Hindu F
~dopttons and Maintenance Act, 1956. Nor is it different as to the incapa-
city of the step-mother to give her step-son in adoption. [76 E].
fapa1nma V.· V. Appa .Rau and Ors., LL.R. 16, Mad. 384 and Haribhau
ttJnd Anr. v. A1abrao Ra1n1i lngale and Ors., A.I.R. 1947 Nagpur 143 referred
o .
. 1 (2) Under_ s. 9(1) of. the fl.ct. even the guardian of a child has the capa·
c1 Y to give him or her in au.option.
But the step-mother as such has not
G
~~~r:t}~~he~~n~~~~e~a~~~f~~~e:~ {7~ Fj. (1) must necessarily mean· th~
and (!~t
1
~h: ~f:;r ~~~h!r s. ~ t~~t t:0~erm 'mother' means the natural mother
tance etc., is distinct a~d. differ~nt fr~~ for tt:-1a.ny h1rposes such as inheri-
an adoptive mother takes the place of rng1tbe e~, w1{ e_, generally speaking,
The necessity of the explanation (i) t
9 r o a
intents and purposes.
mother from the expression mother 80 ~h:t
arde Jo exclude the adoptive H
competent to give the adopted son in adoptio~nt a op vbe dmother may not be
'
o some o y else. [76 HJ.
(4) Under the Jaw as engrafted in
10
f
capable of being taken in adoption if h s.
b ~he Act, a person is not
~5 Ydearlsl and that is the reason that thee ~~rJ ~ch·Jd_ .. chmplbeeted the a~e of
an
. The use of the word " ers
,, .
.!.
as
en used 1n ss.
ment of s. 10 is not for the pu!'pos on fib~· ~(u1) and at the. commence-
e o
nng1ng about any ciifference in
74
A
B
c
SUPREME COURT RF.PORTS
[1975J SUPP. S.C.R.
'
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 the absence
of the father or the mother a guardian appointed by the will of the child's father
a mother and a guarOian appointed or declare-d by a court, would be com-
petent to give the child in adoption.
But in case of a major in the absence
of the father or the mother, no body will be competent to give him in adop-
. tion because no such provision has been made in the Act to meet such a
contingency.
The scheme of the Act \Vas not to make a child of J 5 vears
of age or above fit to be taken in adoption.
Exception \:vas inade in favour
of a custom to the contrary. [77 C~F]
.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 476(N) of
1973.
From the Judgment and decree dated the 23rd August. 1973 of
the Rajasthan High Court in D. B. Civil Regular First Appeal No.
70 of 1966.
-
S. M. Jain for the appdlant.
L. M. Singhvi, Urmila Sarur, A. Gupta and .T. K. Jain
for the
D
respondent.
E
F
G
H
The Judgment of the Court was delivered by
UNTWALIA, J.-In this appeal filed byExcerpt shown. Read the full judgment & AI analysis in Lexace.