RATANLAL @ BABULAL CHUNILAL SAMSUKA versus SUNDARABAI GOVARDHANDAS SAMSUKA(D) TH. LRS.& ORS.

Citation: [2017] 11 S.C.R. 28 · Decided: 22-11-2017 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Dismissed

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Judgment (excerpt)

(2017] l l S.C.R. 28 
A 
RATANLAL @ BABULAL CHUNILAL SAMSUKA 
B 
v. 
SUNDARABAIGOVARDHANDASSAMSUKA(D)TH.LRS.& 
ORS. 
(Civil Appeal No. 6378 of2013) 
NOVEMBER 22, 2017 
[N. V. RAMANA AND AMITAVA ROY, JJ.] 
Hindu Adoption and Maintenance Act, 1956: 
C 
ss.2(a), 3 and JO - Adoption - Of a married man aged 32 
years - Challenged - Held: A person, if married, cannot be adopted, 
unless there is 47 custom or usage, as defined ins. 3(a), permits so -
For establishinff a valid custom, there should be continuity, certainty, 
long usage anc( reasonability - Customs, at variance with general 
D 
law must be proved strictly - Appel/a/If, in the present case has 
failed to prove that the custom on which he was relying had attained 
the status of general custom prevalent among the concerned 
communizv - The burden to prove adoption is also hea>y- ln absence 
qf documentary evidence in support thereof, court should be cautious 
in relying upo11 oral evidence - Appellant, in the fi'1cts of the case, 
E failed lo plead and prove the factum of adoption - Trial court 
wrong(v placed the burden of proving the adoption on the plaintiff 
which is contrary to law - Evidence. 
F 
G 
H 
Evidence: 
Proof of custom - Held: Custom, at variance with general 
law, should be strictly proved - There is presumption in favour of 
law- When the claim of custom is against such general presumption, 
onus of provinft such custom lied on who sets up the plea of its 
existence - Val,dity of a custom cannot be measured solely by the 
elemenl of e.1ptess sanction accorded by courts of law - Judicial 
decision recognizing a custom, may he relevant. but these are not 
indispensable for its establishment. 
Proof of adoption - Burden to prove - Held: Burden of proving 
adoption is heavy - Court to be cautious in relying an oral evidence 
in absence of documentary evidence - Placing burden to prove 
adoption, on the person who is challenging it, is contrary to law. 
28 
RATANLAL@BABULAL CHUNlLAL SAMSUKAv. SUNDARABAI 
29 
GOVARDHANDAS SAMSUKA(D)TH. LRS. 
Pleadings: 
A 
Absence of pleadings - Affect - Held: Parties to a suit are 
governed by their pleadings - In absence of proper pleading, any 
amount of evidence is of no conseq11e11ce. 
Dismissing the appeal, the Court 
HELD: I.I It is clear from ss. 3 and IO of Hindn Adoption 
and Maintenance Act, 1956 that a person cannot be adopted if he 
or she is a married person, unless there is a custom or usage, as 
defined under Section 3(a), applicable to the parties which permits 
persons who arc married being taken in adoption. [Para 11][36-
C] 
1.2 Custom commands legitimacy not by an authority of law 
formed by the State, rather from the public acceptance and 
acknowledgment. As per the settled law under Section 3(a) of 
the Act, the following ingredients arc necessary for establishing 
a valid custom- continuity, certainty, long usage and rcasonability. 
As customs, when pleaded arc mostly at variance with the general 
law, they should be strictly proved. Generally, there is a 
presumption that law prevails and when the claim of custom is 
against such general presumption, then, whoever sets up the pica 
of existence of any custom has to discharge the onus of proving 
it, with all its requisites to the satisfaction of the Court in a most 
clear and unambiguous manner. There are many types of customs 
to name a few-general customs, local customs and tribal customs 
etc. and the burden of proof for establishing a type of custom 
depends on the type and the extent of usage. It must be shown 
that the alleged custom has the characteristics of a genuine 
custom viz., that it is accepted willfully as having force of law, and 
is not a mere practice more or less common. The acts required 
for the establishment of customary law ought to be plural, uniform 
and constant. [Paras 12, 13)(36-E; 37-B-E] 
Thakur Gokal Chand v. Pravin Kumari AIR 1952 SC 
231 : [1952] SCR 825; The Collector of Madura v. 
Moottoo Ramalinga Sathupathi 12 MIA 397 (1868) -
relied on. 
1.3 Custom evolves by conduct, and it is therefore a mistake 
B 
c 
D 
E 
F 
G 
to measure its validity solely by the element of express sanction H 
30 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[ 20 l 7] 11 S.CR. 
accorded by courts oflaw. The characteristic of the great majority 
of customs is thut they arc essentially non-litigious in origin. They 
arise not from any conllict of rights adjusted, but from practices 
prompted by ~he convenience of society. A judicial decisio

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