important point
A married woman cannot adopt at all during the subsistence of the marriage if the husband is not disqualified under the law.

judgment

Dr. Arijit Pasayat, J. —

1.The present appeal involves a very simple issue but when the background facts are considered it projects some highly emotional and sensitive aspects of human life.

2.Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at Jabalpur in a Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the C.P.C.).

3.Background facts sans unnecessary details are as follows:

Sometime in 1948, one Mishri Bai, a crippled lady having practically no legs was given in marriage to one Padam Singh. The aforesaid marriage appears to have been solemnized because under the village custom, it was imperative for a virgin girl to get married. Evidence on record shows that Padam Singh had left Mishri Bai soon after the marriage and since then she was living with her parents at Village Kolinja. Seeing her plight, her parents had given her a piece of land measuring 32 acres out of their agricultural holdings for her maintenance. In 1970, Mishri Bai claims to have adopted appellant Brajendra Singh. Padam Singh died in the year 1974. The Sub-Divisional Officer, Vidisha served a notice on Mishri Bai under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960 (in short the Ceiling Act) indicating that her holding of agricultural land was more than the prescribed limit. Mishri Bai filed a reply contended that Brajendra Singh is her adopted son and both of them constituted a Joint family and therefore are entitled to retain 54 acres of land. On 28.12.1981, the Sub Divisional officer by order dated 27.12.1981 disbelieved the claim of adoption on the ground inter alia that in the entries in educational institutions adoptive fathers name was not recorded. On 10.1.1982, Mishri Bai filed Civil Suit No. SA/82 seeking a declaration that Brajendra Singh is her adopted son. On 19.7.1989, she executed a registered will bequeathing all her properties in favour of Brajendra Singh. Shortly thereafter, she breathed her last on 8.11.1989. The trial court by judgment and order dated 3.9.1993 decreed the suit of Mishri Bai. The same was challenged by the State. The first appellate court dismissed the appeal and affirmed the judgment and decree of the trial court. It was held concurring with the view of the trial court that Mishri Bai had taken Brajendra Singh in adoption and in the will executed by Mishri Bai the factum of adoption has been mentioned. Respondents filed Second Appeal No. 482 of 1996 before the High Court. A point was raised that the adoption was not valid in the absence of the consent of Mishri Bais husband. The High Court allowed the appeal holding that in view of Section 8(c) of Hindu Adoption and Maintenance Act, 1956 (in short the Act) stipulated that so far as a female Hindu is concerned, only those falling within the enumerated categories can adopt a son.

4.The High Court noted that there was a great deal of difference between a female Hindu who is divorced and who is leading life like a divorced woman. Accordingly the High Court held that the claimed adoption is not an adoption and had no sanctity in law. The suit filed by Mishri Bai was to be dismissed.

5.In support of the appeal learned counsel for the appellant submitted that as the factual position which is almost undisputed goes to show, there was in fact no consummation of marriage as the parties were living separately for a very long period practically from the date of marriage. That being so, an inference that Mishri Bai ceased to be a married woman, has been rightly recorded by the trial court and the first appellate court. It was also pointed out that the question of law framed proceeded on a wrong footing as if the consent of husband was necessary. There was no such stipulation in law. It is contented that the question as was considered by the High Court was not specifically dealt with by the trial court or the first appellate court. Strong reliance has been placed on a decision of this Court in Jolly Das (