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Rajasthan High Court
Beri & Joshi, JJ.
Dhanraj Jain - Appellant
Versus
Suraj Bai - Respondents
D.B. Civil Regular First Appeal No. 70 of 1966
Decided On : August 23, 1972
The step-mother is not a competent person to give a child ( which term means adult as well as a minor ) in adoption. We are, therefore, disposed to hold that it is only the natural parents who are competent to give an adult in adoption and not the step-mother. ( para 7 )
The word "child" has been used in sec ll(g) with a wider amplitude with flexibility to include major as well as minor, so as to conform to both the situations, that is, adoption by the parents and by a guardian. Road in relation to the parents we are undoubtedly of opinion that the word "child" will include major as well as the minor persons and when read in relation 10 the guardian it will include, of course, minor persons only. The argument appears to suffer from infirmity when it seeks to give the meaning to the word child" in the context of the guardian only and conveniently overlooks the use of the word child" used in sec. 11(g) in relation to parents. If we were to accept the contention that physical giving and taking was not necessary in case of adoption of an adult, it is likely to lead to absurd situations, inasmuch as an adoptive person even having infirm or impecunious parents could go in adoption to an affluent person without the consent of his parents and by his unilateral act severe his ties with the natural family and avoid the liability of maintenance statu-torily laid under the provision of sec. 20 of the Act. This, could never have been the intention of the legislature. All the four conditions or requisites including the condition of giving by a competent person are cumulative and each must be complied with and are equally applicable to case of adoption of an adult ( where permissible ) and a minor. ( para 8 )
The Act is a codifying and amending one. The legislature must be aware of the legal impediment in the way of the adoption of an orphan. The legislature introduced certain reforms in the Act for the benefit of orphan minor who could now be taken in adoption. What the legislature has done is to remove the disability attaching to the adoption of a minor orphan and thus cleared the hurdle in the way of his/her adoption. It may be noticed that a minor may not be able to look after his interest and in some cases there might be no person even to maintain him but the same cannot be said for adult orphan who being suit juris could look after himself. The legislature, therefore appears to have made a remedial provision in favour of the minor orphan permitting his giving in adoption by a duly appointed guardian with the sanction of the court. The orphan minors as a class are different from orphan-adults who could look after their own interest. There Is no discrimination inter so a class. It may-be pointed. out that the parliament may bring reforms at stages and if no provision has been made for the adoption of the orphan-adults that cannot be taken to be a case or discrimination. Morever, Article 15(3) of the Constitution empowers the legislature to make special provisions for minors for their welfare. In anyview of the matter, therefore, it cannot be said that the impugned provisions of the Act are in any way repugnant to Art. 14 of the Constitution, (para 9)
2. In order to appreciate the controversy raised in this appeal relevant facts which are not in dispute may be given. Both the parties are Porwal Jains and are the residents of Pindwara in the District of Sirohi formerly Sirohi State. Amichand, the plaintiff took Dhanraj, the defendant in adoption with the consent of his wife Smt. Surajbai on 18th November, 1959 and executed a registered deed evidencing the factum of adoption. At that time Dhanraj was twentyone years old. He had no natural parents but had a step-mother Smt. Bhuribai with whom be was residing at the relevant time. Dhanraj was given in adoption by Smt. Bhuribai, his step mother and Amichand took him in adoption. The recital of the fact of giving and taking ceremony, of course, finds place in the said registered adoption deed. In short, it is not in dispute that Dhanraj was given in adoption by his step mother Smt. Bhuribai. Sometime after the adoption in question, the adoptive parents did not reconcile themselves with the behaviour of the defendant-appellant and they wanted to disown the adoption. They consequently brought a suit for a declaration impeaching the defendant-appellants adoption on the various grounds out of which one ground was that Dhanraj having been given in adoption by his step-mother his adoption to the plaintiffs was invalid.
3. The defendant resisted the plaintiffs suit and contended in the written statement that his adoption was valid as the step-mother was competent to give him in adoption under the law. In all, six issues were raised on the pleadings of the parties out of which issue No. 1 -A came to be framed on 27 4-1966 Formerly, the case was fixed for the evidence of the parties but on account of the framing of issue No. 1 -A on 27-4 66 this issue was taken as a preliminary issue Counsel for both the parties expressed that they did not propose to lead evidence presumably on the ground that the issue was a legal issue. It is desirable to re-produce issue No. 1-A for ready reference—
"Whether the adoption of Dhanraj is invalid on the ground that he has been given in adoption by his step-mother Mst. Bhuri Bai."
4. The learned Civil Judge, after hearing the parties on this issue came to the conclusion that under the Hindu Law only natural parents of the adoptive son could give him in adoption and that the step mother was not at all competent to give a person in adoption. The finding of this issue was recorded by the learned trial judge on 18th August, 1966. Thereafter the learned judge took up the issue No. 5 in respect of the recovery of ornaments of the value of Rs. 5700/- and called upon the parties to lead their evidence on that issue and fixed the case for recording their evidence on 23rd September, 1966. The plaintiffs-respondents instead of leading their evidence on the point filed an application in writing on 20th August, 1966 in the trial court intimating that they did not intend to press that issue and therefore that issue was decided against the plaintiffs. Eventually, the trial judge passed a decree for declaration in favour of the plaintiffs to the effect that the defendant-appellants adoption is invalid and not binding upon the plaintiffs-respondents. However, the claim for the recovery of ornaments was dismissed for want of evidence.
5. Being aggrieved by the judgment and decree of the learned Civil Judge the appellant has brought this appeal impeaching the decree of the trial court. It may be stated here that Amichand plaintiff respondent died during the pendency of the appeal on 26th
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