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1995 Supreme(SC) 1161
SUPREME COURT OF INDIA
M.M.Punchhi : Sujata V.Manohar
Chandan Bilasini: Aftabuddin Khan
Versus
Aftabuddin Khan: Amaresh Sarkar
Case No. : .
Date of Decision : 11/16/95
Advocates Appeared: Benerjee Aruna : Chandrasekhar B. : Chatterjee G.S. : Das Janaranjan : Das Jayant : Dayan M.S. : Ghosh Shankar : Hegde Santosh : Tripathy K.N.
ARUNA BENERJI, B.CHANDRASEKHAR, G.S.CHATTERJEE, JANARANJAN DAS, JAYANT DAS, K.N.TRIPATHI, M.S.DAYAN, SANTOSH HEGDE, SHANKAR GOPAL PAGIRE.
Headnote:
Hindu Adoptions and Maintenance Act, 1956 - Apart from these documents, evidence - Deed of adoption – Jurisdiction - On adoption of respondent by the widow of the deceased adopted severed his ties with his natural family and became a part of the adoptive family. As such became his mother and became his deceased father. Section 12 of the Hindu Adoptions and Maintenance Act clearly provides that an adopted child shall be deemed to be the child of his adoptive father or mother tor all purposes with effect from the date of the adoption and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. As a consequence, when a widow adopts a child, the child not merely acquires an adoptive mother but also acquires other relationships in the adoptive family - unless there is anything to the contrary in the Hindu Adoptions and Maintenance Act - This position is reinforced by Section 14 which sets out that where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be step-father of the adopted child. In other words, the family relationship gets as at the date of adoption. The child will be deemed to be child of parent who adopts the child and the existing or deceased spouse of that parent (as the case may be), if any, will be considered father or mother - A spouse subsequently acquired by the adoptive parent becomes the step-parent of the adopted child - Adopted child, however, cannot divest any person of any property already vested in that person – Held, ON adoption of the respondent by the widow of the deceased adopted son severed his ties with his natural family and became a part of the adoptive family. As such became his mother and became his deceased father. Section 12 of the Hindu Adoptions and Maintenance Act clearly provides that an adopted child shall be deemed to be the child of his adoptive father or mother tor all purposes with effect from the date of the adoption and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. As a consequence, when a widow adopts a child, the child not merely acquires an adoptive mother but also acquires other relationships in the adoptive family. unless there is anything to the contrary in the Hindu Adoptions and Maintenance Act - This position is reinforced by Section 14(4 which sets out that where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child. In other words, the family relationship gets as at the date of adoption. The child will be deemed to be the child of the parent who adopts the child and the existing or deceased spouse of that parent (as the case may be), if any, will be considered the childs father or mother. A spouse subsequently acquired by the adoptive parent becomes the step-parent of the adopted child. The adopted child, however, cannot divest any person of any property already vested in that person – Appeal disposed of
Judgment
Sujata V.Manohar, J.
(1) SINCE the parties before us have already settled their property dispute, the only question which is left for us to decide is whether the respondent Amaresh Sarkar in CivilNo. 2462 of 1977 was the duly adopted son of Chandan Bilasini Dasi, the original first plaintiff.
(2) CHANDAN Bilasini Dasi was married to one Kalikrishna Sarkar who died on 11/12/1905 leaving a Will under which, inter alia, he had authorised his widow, the original Plaintiff 1 to adopt a son and in the event of the adopted sons death, to adopt a second son. The adoption had to be made with the consent of the executors. Accordingly the first plaintiff had adopted one Sudhanshu Mohan Sarkar as per the directions contained in the Will of Kalikrishna. Sudhanshu Mohan Sarkar died in an unmarried state on 7/3/1965. Thereafter, she adopted the said respondent Amaresh Sarkar on 24/8/1965. By this time all the executors were dead. She also executed a registered deed acknowledging the adoption of Amaresh Sarkar which is dated 30/9/1965. This deed, however, was not counter-signed by the natural parents of the adopted child. The natural father executed a deed acknowledging adoption which is dated 15/4/1967. This deed is also registered. Apart from these documents, evidence was led in order to prove the ceremony of giving and taking in adoption. It is necessary to bear in mind that this second adoption took place after coming into force of the Hindu Adoptions and Maintenance Act, 1956 under which the-first plaintiff Chandan Bilasini Dasi being a widow was entitled to adopt a son even otherwise than under the authority given to her under the Will of her deceased husband.
(3) PWS 1, 2 and 6 have given oral evidence relating to the adoption ceremony. Public Witness I, who is the natural father of the adopted son has given evidence to the effect that the adoption took place on 24/8/1965 and the ceremony of giving and taking in adoption was performed. A priest was also present and Kalasa Pooja Homa was performed. Public Witness 2 is the priest who performed the adoption ceremony and Public Witness 6 is an attesting witness to the deed of adoption which was executed by the adoptive mother on 30/9/1965. He was also present at the time of the adoption ceremony.
(4) THE first appellate court on the basis of the oral evidence as well as the two supporting documents held that there was a valid adoption of the respondent Amaresh Sarkar by the original Plaintiff 1. The division bench of the High court in appeal, however, held that there was no valid adoption. It appears to have drawn an adverse inference on the basis of the fact that the adoptive mother who was alive at the time when the evidence was recorded by the trial court, had not examined herself. It is accepted by both sides that at the time when the evidence was recorded, the adoptive mother was a very old lady of 86 years of age and she was too old to be produced in court tor giving evidence. The division bench failed to take into account the fact that there were three other witnesses who were present at the time of the adoption ceremony who were . examined - one of them being the priest and the other one being a person who was also present at the time when the deed of admission of adoption was executed by the first plaintiff adoptive mother and was an attesting witness to the deed. The mere fact that some other persons who were also present at the adoption ceremony were not examined, cannot be considered as making the adoption doubtful. There is clear testimony relating to the ceremony of taking and giving the respondent Amaresh Sarkar in adoption as between the natural parents and the adoptive mother. The registered document regarding this adoption which was executed within a month of the adoption by the adoptive mother should also be given its due weight as evidence of adoption. There is also a second document executed by the natural father after
