AUTHOR: Mansi Soni, 3rd Year, Prestige Institute of Management and Research Department of Law, Indore

Ankush Nayak Shingate vs Janabai Kom Rama Sawat and Ors.

APPELLANT- ANKUSH NAYAK SHINGHATE

DEFENDANT- JANABAI KOM RAMA SAWAT AND ORS.

DATE OF JUDGEMENT- 23 APRIL, 1965

BENCH- K DESAI, PALEKAR

COURT- BOMBAY HIGH COURT

CITATION- AIR 1966 Bom 174, (1965) 67 BOM LR 864

 

FACTS OF THE CASE:

  • On about 40 years prior to the date of the suit (1957), Narayan died (1917) intestate at the village named Mardhe. He left his two widows respectively, senior Laxmibai and the junior Tanubai and Laxmibai’s daughter Janabai.
  • He had 23 properties in Mardhe.
  • The senior widow Laxmibai died in 1948.
  • The junior widow Tanubai adopted a nine year old son in December,1957 named Ankush.
  • The estate, after the death of Laxmibai, was in the hands of Tanubai, and Tanubai claimed that she alone was entitled to the property.
  • On December 31, 1957, Ankush sued his adoptive mother and step-sister for the possession of the property.

 

ISSUES:

  • The main issue was whether the adoption of the child was valid or not.

    ARGUMENT ON BEHALF OF APPELLANT:

Appellant relied on the sections:-11(4), 12, 14(1)(2) and (3) of the Hindu adoption and maintenance Act, 1956. [1] (Act)

  • 11(4) provides – If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted.
  • 12 provides- an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family of his the birth shall be deemed to be served and replaced by those created by the adoption in the family.

 Provided that (c) the adopted child shall not divest any person of ant estate which vested in him or her before the adoption.

  • 14(1) provides – where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
  • 14(2) provides – where an adoption has been made with consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.
  • 14(3) provides- 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.
  • The child should not have any tie with the family of birth and this tie correspondingly gets replaced by the adoptive family.
  • The result of this position in connection with the adoption by a widow would be that the adopted child will become absorbed in the adoptive family to which the widow belongs. In this case, this family would be the family of the deceased husband.

 

ARGUMENTS ON BEHALF OF DEFENDANT:

  • Respondents relied upon the provisions of the sections: 5, 6 & 7 of the Act.
  • 5 provides- 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.
  • 5(2) provides- An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
  • Adoption shall not be valid unless:
  • The person who is adopting has the capacity to adopt, and also the right to take in adoption.
  • The person giving in adopting has the capacity to perform the same.
  • The person adopted is capable of being taken in adoption, and
  • The adoption is made in compliance with the other conditions mentioned in this Chapter.
  • 7 & 8 deals with the capacity of male Hindu and female Hindu to take in adoption.

Any female Hindu – who is of sound mind, who is not a minor and who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by court of competent jurisdiction to be of unsound mind Has the capacity to take a son or daughter in adoption. [2]

 

JUDGEMENT:

It was held that a widow can adopt a son but the son cannot be the son of her deceased husband. The judgment was in favour of the defendant.

Also, the Sec. 8 relating to the capacity of a female Hindu to take in adoption shows that the female takes a child for adoption to herself alone.

 

ANALYSIS:

  • The interpretation of Sec.8 has been done correctly.
  • A female can only adopt a child to herself either a daughter or a son. A widow can also adopt a child but that adopted child will only be the child of herself and not to her deceased husband, the child can become the child of her second husband if she remarries and the father will be the stepfather of the child.
  • A widow does not become the sole owner of the property left by her husband but of some portion.
  • In case, Gowli Buddanna v. Commissioner of Income Tax, Mysore, Bangalore [3], the court held that the sec. 11 and 12 of the Act is that when a widow adopts a child that child becomes absorbed in the adoptive family. (the family to which the widow belongs). Whereas sec.14 of the Act is not clearly expressing that when a child adopted by a widow becomes the adopted child of the deceased husband.
  • In another case, Chandrasekhra v. Kulandaivalu, 4, the court held that the assent of sapinda is necessary because of the supposed incapacity of the widow for independent action.

 

REFERENCES

  • Sawan Ram & others v. Kala Wanti & others 1967.
  • Sitabai & Anr. v. Ram Chandra, [1970] 2 S.C.R.
  • Narinderjit kaur v. union of india, AIR P&H 280.

 

[1] Hindu Adoption and maintenance Act, 1956.

[2] Id.

[3]Gowli Buddanna v. Commissioner of Income Tax, Mysore, Bangalore, [1966] 3 S.C.R. 224.

4 Chandrasekhra v. Kulandaivalu, AIR 1963SC185.