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GAUHATI HIGH COURT
J.N.Sarma, J.
Boken Jabir -Appellant
Versus
Tabur Jabir -Respondent
Civil Revision No. 380 of 1996
Decided On : 08-04-1999
ADOPTION - ADOPTION OF A CHILD OF THE SAME SEX - ASSAM FRONTIER (ADMINISTRATION OF JUSTICE) REGULATION, 1945 - SECTION 44, 46 - CUSTOMARY LAW - ADOPTION OF A CHILD OF THE SAME SEX - NO SUCH CUSTOM FOUND - DEPUTY COMMISSIONER ERRED IN HOLDING THAT THE ADOPTION WAS VALID - DECISION OF THE DEPUTY COMMISSIONER QUASHED.
Fact of the Case:
A dispute arose between Boken Jopir and Smti Tabur Jopir over a piece of land. The Kebang (village council) initially decided that the land would not be divided between the parties and that Boken Jopir would take possession of it as the absolute owner. However, a subsequent Kebang decision reversed the earlier decision and awarded the land to Smti Tabur Jopir. Boken Jopir appealed to the Deputy Commissioner, who held that the adoption of Boken Jopir by the husband of Smti Tabur Jopir was not valid under Adi customary law and that the land should be returned to Boken Jopir.
Finding of the Court:
The court found that there was no evidence to support the Deputy Commissioner's finding that the adoption was invalid. The court also found that the Deputy Commissioner had erred in not giving Boken Jopir a hearing before making his decision.
Issues: 1. Whether the adoption of a child of the same sex is valid under Adi customary law. 2. Whether the Deputy Commissioner erred in holding that the adoption was invalid. 3. Whether the Deputy Commissioner erred in not giving Boken Jopir a hearing before making his decision.
Ratio Decidendi: The court held that there is no such custom as adoption of a child of the same sex under Adi customary law. The court also held that the Deputy Commissioner erred in holding that the adoption was invalid and in not giving Boken Jopir a hearing before making his decision.
Final Decision: The court quashed the Deputy Commissioner's decision and ordered that the land be returned to Boken Jopir.
Based on the legal document provided, here are the key points regarding the case of Boken Jabir vs. Tabur Jabir:
Case Overview and Procedural History * The case is a Civil Revision No. 380 of 1996 filed under Section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, challenging an order dated 30.9.1996 passed by the Deputy Commissioner, Upper Siang District (!) . * The dispute originated from a land conflict between Boken Jopir and Smti Tabur Jopir, where the initial Kebang (village council) decision awarded possession to Boken Jopir, but a subsequent decision reversed this and awarded the land to Smti Tabur Jopir (!) (!) . * The Deputy Commissioner disposed of the appeal by holding that the adoption of Boken Jopir by the husband of Smti Tabur Jopir was invalid under Adi customary law and ordered the land returned to Boken Jopir (!) (!) .
Issues Regarding Adoption and Customary Law * The core issue is whether the adoption of a child of the same sex is valid under Adi customary law [judgement_subject]. * The Deputy Commissioner relied on the established rule that a person does not adopt a child of the same sex if they already have a child, especially a male one (!) . * The court found that there is no evidence or custom supporting the validity of adopting a child of the same sex under Adi customary law [judgement_subject]. * However, the court also noted that the Deputy Commissioner erred in concluding the adoption was invalid and in not providing a hearing to Boken Jopir before making the decision [judgement_subject] (!) .
Legal Framework and Jurisdiction of the Kebang * Section 44 of the Assam Frontier (Administration of Justice) Regulation, 1945, mandates that village authority decisions be made in open Darbar with the presence of parties and at least three independent witnesses (!) . * Section 46 allows appeals to the Assistant Commissioner or Deputy Commissioner and requires the appellate court to examine parties if necessary (!) . * The "Kebang" is defined as a tribal council or village council acting as a court of tribal justice, composed of responsible members including village headmen (Gams) (!) . * The Kebang hierarchy includes sub-councils, Dolung Kebang (village council), Bonggo Kebang (covering multiple villages), Area Kebang, and the supreme Bogum Bokang Kebang (!) . * The Adi Kebang of the Deputy Commissioner acts as a bridge between National Law and Adi Customary Law, functioning as a high court of justice for the Adi territory (!) . * Inheritance among Adis is matrilineal, with no preference for primogeniture; daughters and widows generally do not inherit landed property, and in the absence of male issues, property goes to the nearest male kinsman (!) (!) . * There is no specific mention of an adoption custom for same-sex children in the referenced literature on Adi inheritance and customary laws (!) .
Court's Final Decision * The Gauhati High Court quashed the Deputy Commissioner's decision [judgement_subject]. * The court ordered that the land be returned to Boken Jopir [judgement_subject]. * The matter was ultimately placed before the Hon'ble Chief Justice to be heard by a Division Bench due to its significance regarding questions of custom (!) .
2. The first Kebang decision was on 12.5.96 in a dispute between Boken Jopir and Smti Tabur Jopir. The decision was that the disputed land at Kome will not be divided in between the parties. From this day onwards, Shri Boken Jopir shall take the possession of the disputed land as absolute owner. Subsequently the decision was communicated to the Circle Officer, Jengging and that communication is as follows:
“From now onwards Smti Tabur Jopir shall continue to cultivate the land which was cultivated by her. Shri Boken Jopir is stopped from cultivating the said land (disputed land). Smti Tabur Jopir shall not sell or dispose the said land without prior consultation with the Jopir Clan members.”
3. An appeal was filed before the Deputy Commissioner and that was disposed of by the Deputy Commissioner by the impugned order. The Deputy Commissioner held as follows:
“(i) As per Adi Customary Law, it is well established rule and practice that a person does not adopt a child at least of the same sex as long as he has one child (especially) male one). Therefore, I am not inclined to agree with the contention of the appellant that the husband of the respondent No. 1 had adopted late Boni Jopir as his own son.
(ii) It is established beyond doubt that Mithun was sacrificed by late Anyok Jopir husband of respondent No. I in exchange/consideration for the disputed land.
(iii) The land was developed by late Anyok Jopir, husband of respondent No. 1 into WRC/TRC in the year 1964 ie., more than 30 years ago.
(iv) An amount of Rs. 2,500 which has been spent as fees in earlier meeting by the appellant be returned to Boken Jopir (appellant No.1) since it was not an accepted Kebang decision. The fees has been returned to the appellant in my presence.
(v) The Gaoburas have agreed upon the verdict and signed in a separate list in my presence.”
Hence, this revision petition.
4.1 have heard Mr. C. Baruah, learned counsel for petitioners and Mr. BK Sharma, learned counsel for respondents.
5. Mr. C. Baruah, learned counsel for petitioner makes the following submissions:
(i) There is no material on record to allow the opposite party to retain the
possession of the disputed land.
(ii) No independent Witness has been examined to arrive at the conclusion,
(iii) The subsequent Kebang decision is against the earlier Kebang decision
dated 12.5.96 in respect of the same disputed land between the same parties. The learned Deputy Commissioner did not apply his mind to that aspect of the matter,
(iv) No hearing was given to the petitioner by the Deputy Commissioner.
6. Section 44 of the Assam Frontier (Administration of Justice) Regulation, 1945 provides inter alia as follows:
44. (1) All suits tried by the village authorities shall be decided in open Darbar in the presence of the parties and atleast three independent witnesses.
(2) The Deputy Commissioner or an Assistant Commissioner may direct a village authority to report their proceedings in any case or class of cases in any way which may appear to him to be suitable. Save as required such direction, no record of any proceedings shall be maintained.
(3) After hearing both parties and their witnesses if any, the village authority shall forthwith pronounce a decision.”
Section 46 of the same Act provides for appeals from village authorities and that is quoted below :
“46. (1) Any person aggrieved by a decision of a village authority may appeal to the Assistant Commissioner in suits not exceeding Rs 500 in value and to the Deputy Commissioner in suits exceeding that value (2) If such an appeal is filed, a record shall be made of the matter in dispute and of the decision of the village authority
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