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Dhanraj v. Smt Suraj Bai .
Factual and Procedural Background
The appellant, Dhanraj, aged 21 and an orphan living with his step-mother Bhuri Bai, was adopted by Amichand on 18 November 1959 with the consent of his wife (the present respondent). A registered deed of adoption was executed the same day. In 1963 Amichand and his wife filed a civil suit challenging the validity of the adoption on multiple grounds, one of which was that the appellant had been given in adoption by his step-mother rather than by his natural parents. The trial court, treating this as a preliminary issue (Issue 1-A), ruled that a step-mother was not competent to give a child in adoption and dismissed the defence. On first appeal, the Rajasthan High Court affirmed the trial court’s view. The appellant obtained a certificate of fitness and appealed to the Supreme Court.
Legal Issues Presented
- Whether, under the Hindu Adoptions and Maintenance Act, 1956, a step-mother has the legal capacity to give her step-son in adoption.
- If the step-mother lacks such capacity, whether the adoption deed dated 18 November 1959 is void.
Arguments of the Parties
Appellant's Arguments
- Cited a purported community custom (invoking Section 10(iv) of the Act) under which persons over 15 years of age could be validly taken in adoption.
- Argued that for an adult orphan no third-party consent is required; hence the appellant’s own consent sufficed, making the physical act of giving by a qualified person unnecessary.
- Relied on Bombay High Court decisions recognising adoptions of adult orphans in certain communities without the need for a natural parent or guardian to give the adoptee.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Papamma v. Appa Rau | Under traditional Hindu law a step-mother cannot give her step-son in adoption. | Cited as historical authority confirming incapacity of a step-mother; supports the conclusion that the Act did not alter this position. |
| Haribhau v. Ajabrao Ramji Ingale, AIR 1947 Nag 143 | Same principle: step-mother lacks capacity to give the child. | Reinforces the traditional rule adopted by the Court. |
| Motilal Mansukhram v. Maneklal Dayabhai, AIR 1921 Bom 147 | Recognised community custom allowing adoption of an orphan without a natural parent’s consent. | Discussed but held irrelevant because such a custom was not pleaded in the present case. |
| Pralhad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao, AIR 1958 Bom 79 | Similar to Motilal: validity of adoption of an orphan based on community custom. | Likewise distinguished due to absence of a corresponding pleading by the appellant. |
Court's Reasoning and Analysis
Justice N. L. Untwalia began by noting that Section 5 of the Hindu Adoptions and Maintenance Act, 1956 makes adherence to the Act’s provisions mandatory and renders any contravening adoption void. Turning to Section 9(1), the Court emphasised that only the “father,” “mother,” or a court-appointed or testamentary “guardian” may validly give a child in adoption. Reading the section as a whole, together with sub-sections (2)–(4), the Court held that “mother” denotes the natural mother; a step-mother is a distinct legal status and therefore outside the statutory capacity.
The appellant’s reliance on Explanation (i) to Section 9 was rejected. The Explanation merely clarifies that “father” and “mother” exclude adoptive parents; it does not implicitly include step-parents. Historical treatises (Mayne) and pre-Act case law were cited to confirm that a step-mother never possessed this power, and nothing in the Act evidences an intention to change that rule.
The Court next dismissed the argument that because the appellant was an adult orphan, no giving was required. Sections 9 and 11(vi) still mandate the physical act of giving and taking, and Section 10 bars adoption of persons over 15 except where a valid custom is pleaded and proved. The only custom pleaded concerned age, not the dispensing with a competent giver. Since the appellant’s pleadings admitted that his step-mother purported to give him in adoption, he could not shift to a new theory before the Supreme Court.
As no statutory provision or pleaded custom authorised a step-mother to give a child in adoption, the attempted adoption contravened Sections 5, 9 and 11 and is therefore void.
Holding and Implications
Appeal Dismissed. The Supreme Court affirmed the Rajasthan High Court’s decision that a step-mother lacks capacity to give a child in adoption under the Hindu Adoptions and Maintenance Act, 1956; consequently, the adoption deed of 18 November 1959 is void. No order as to costs.
Implications: The judgment reinforces the statutory scheme limiting the power to give a child in adoption to the natural parents or a legally recognised guardian, clarifying that a step-parent is not included. It does not create new precedent but affirms consistency between traditional Hindu law and the post-1956 statutory framework.
N.L Untwalia, J.— In this appeal filed by certificate of the Rajasthan High Court we are concerned with the question of the legality and validity of the adoption of the appellant by the husband of the respondent. Amichand, respondent's husband, adopted the appellant with the consent of the respondent on November 18, 1959 and executed a registered deed evidencing the fact of adoption. The appellant at that time was 21 years of age. Both his natural father and mother were dead. He had a stepmother Bhuri Bai with whom the appellant was residing at the time of the impugned adoption. The appellant was given in adoption by his stepmother. Subsequently the respondent's husband and the respondent filed a suit in the year 1963 against the appellant impeaching his adoption on various grounds and for a declaration that the adoption was illegal and invalid. The appellant contested the suit and, inter alia, pleaded a custom applicable to the parties according to which a person being of the age of 15 years or more could be taken in adoption. The custom was pleaded in view of the provision of the law contained in clause (iv) of Section 10 of the Hindu Adoptions and Maintenance Act, 1956 — hereinafter referred to as “the Act”. The appellant also stated in his written statement that under the Act the stepmother was competent to give him in adoption.
2. Several issues were framed including an issue regarding the custom as pleaded. Issue 1-A by agreement of the parties without the adducing of any evidence was tried as a preliminary issue by the trial court. The said issue runs as follows:
“Whether the adoption of Dhanraj is invalid on the ground that he has been given in adoption by his stepmother Mst Bhuri Bai.”
The trial court decided the issue in favour of the plaintiffs and against the defendant. The latter filed a first appeal in the High Court. During the pendency of the appeal, Plaintiff 1 died. The only respondent left was his widow. The High Court has held that the stepmother was not competent to give the appellant in adoption and maintained the dismissal (sic) of the suit on that preliminary issue. Hence this appeal.
3. The only point, therefore, which falls for determination in this appeal is whether the stepmother was competent to give the appellant in adoption. If not, whether the adoption is void?
4. In Mayne on Hindu Law and Usage, 11th Edn., is found a passage at p. 226 to say:
“No other relation but the father or mother can give away a boy. For instance, a stepmother cannot give away her stepson, a brother cannot give away his brother. Nor can the paternal grandfather, or any other person. Nor is a woman competent to give in adoption her illegitimate son born of adulterous intercourse. It is well settled that the parents cannot delegate their authority to another person, for instance, a son, so as to enable him, after their death, to give away his brother in adoption, for the act when done must have parental sanction. And, therefore, even an adult orphan cannot be adopted, because he can neither give himself away, nor be given by anyone with authority to do so.”
In Papamma v. Appa Rau Muttusami Ayyar and Best, JJ. have held that under the Hindu law the stepmother could not give her stepson in adoption. An identical view has been expressed in the case of Haribhau v. Ajabrao Ramji Ingale AIR 1947 Nag 143.
5. The question for consideration is whether the law that a stepmother could not give a stepson in adoption is changed after coming into force of the Act.
6. Section 4(1) of the Act provides:
“Save as otherwise expressly provided in this Act,—
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.”
Section 5(1) says:
“No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.”
No adoption shall be valid as mentioned in Section 6 unless—
“(ii) the person giving in adoption has the capacity to do so;”
Other conditions for a valid adoption under the Act are stated in Section 11 which provides:
“In every adoption, the following conditions must be complied with:
* * *
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:”
The physical act of giving and receiving was absolutely necessary to the validity of an adoption under the Hindu law as it existed before coming into force of the Act: vide para 489 at p. 554 of Mulla's Hindu Law, Fourteenth Edn. Identical is the position under the Act. Nor is it different as to the incapacity of the stepmother to give her stepson in adoption. Section 9 of the Act enumerates the persons capable of giving in adoption. Sub-section (1) says:
“No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.”
The departure in the law is that under the Act even the guardian of a child has the capacity to give him or her in adoption. But the stepmother as such has not. The father or mother mentioned in sub-section (1) must necessarily mean the natural father and the natural mother. Explanation (i) appended to Section 9 was pressed into service to say that the stepmother is included in the term “mother” because the said explanation says “the expressions ‘father’ and ‘mother’ do not include an adoptive father and an adoptive mother”. Learned counsel for the appellant submitted that stepmother has not been excluded from the expression “mother” and only an adoptive mother has been so excluded. By necessary implications, therefore, it was submitted that it ought to be held that the word “mother” in sub-section (1) includes a stepmother. We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term “mother” means the natural mother and not the stepmother. A stepmother for many purposes such as inheritance etc. is distinct and different from mother; while, generally speaking, an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebody else.
7. Learned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption, no consent was necessary of any person except the adoptee himself. Nobody could be available to give him in adoption. The use of the word “child” in clause (vi) of Section 11 and in Section 9(1) read in contra-distinction of the use of word “person” in clause (iii) of Section 6 would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult. We see no substance in this argument. Under the law as engrafted in Section 10 of the Act, a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word “child” has been used in Sections 9 and 11. The use of the word “person” in Section 6(iii) and at the commencement of Section 10 is not for the purpose of bringing about any difference in 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 absence of the father or the mother, a guardian appointed by the will of the child's father or mother and a guardian appointed or declared by a court, would be competent to give the child in adoption. But in case of a major in absence of the father or the mother, nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to the contrary.
8. Learned Counsel for the appellant then attempted to argue on the basis of the decisions of the Bombay High Court in the cases of Motilal Mansukhram v. Maneklal Dayabhai AIR 1921 Bom 147 and Pralhad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao AIR 1958 Bom 79 that even under the old Hindu law the adoption of an orphan was not valid except by custom; but if the custom permitted it, and in the case of Porwal Jains it did permit, then an orphan who was not minor could go in adoption by his own consent without the consent of and the giving by anybody else. We think that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would have such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our judgment it does not arise at all in this case. In para 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of para 4 of the written statement was that under the Act the stepmother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon.
9. For the reasons stated above, we dismiss this appeal. No costs.
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