Supreme Court: No valid adoption of child without consent of wife and actual ceremony of adoption

The Appellant relied upon a judgment of this Court

in L. Debi Prasad (Dead) by Lrs. (supra) to

submit that abundant evidence submitted by her before

Court would point to the fact that she was brought up as

the daughter of the Respondent and her husband (Late)

Narasimhulu Naidu. Such evidence can be taken into

account to draw inference that she was adopted by

them. The facts in L. Debi Prasad (Dead) by Lrs.

(supra) case are similar to those in the instant case. In

that case, Shyam Behari Lal was adopted by Gopal Das

in the year 1892 when he was an infant. Shyam Behari

Lal was unable to establish the actual adoption but has

produced considerable documentary evidence to show

that he was treated as the son of Gopal Das for a

quarter of century. This Court accepted the submission

of Shyam Behari Lal and held that there was sufficient

evidence on record to infer a valid adoption. Though

the facts are similar, we are unable to apply the law laid

down in L. Debi Prasad (Dead) by Lrs. (supra) to the

instant case. L. Debi Prasad (Dead) by Lrs. (supra)

case pertains to adoption that took place in the year

1892 and we are concerned with an adoption that has

taken place after the Act of 1956 has come into force.

Though the Appellant has produced evidence to show

that she was treated as a daughter by (Late)

Narasimhulu Naidu and the Defendant, she has not

been able to establish her adoption. The mandate of

the Act of 1956 is that no adoption shall be valid unless

it has been made in compliance with the conditions

mentioned in Chapter I of the Act of 1956. The two

essential conditions i.e. the consent of the wife and the

actual ceremony of adoption have not been established.

This Court by its judgment in Ghisalal v. Dhapubai

(Dead) by Lrs. & Ors.2 held that the consent of the

wife is mandatory for proving adoption.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8814 OF 2010

M. Vanaja Vs  M. Sarla Devi

L. NAGESWARA RAO, J.

Dated:March 06, 2020.

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Main features of Juvenile justice Act 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 has come into force from 15-January-2016  and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice (Care and Protection of Children) Bill, 2015 was passed by Lok Sabha on 7^th May, 2015; was passed by Rajya Sabha on 22^nd December, 2015 and received Presidential assent on 31^st December, 2015.

The JJ Act, 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with law. Some of the key provisions include: change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”;  inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children;  clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for inquiry by Juvenile Justice Board (JJB); special provisions for heinous offences committed by children above the age of sixteen year; separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children; inclusion of new offences committed against children; and mandatory registration of Child Care Institutions.

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Whether court should consider any evidence adduced without pleading?

In response to issue number two, we are concerned here with the custom of adopting married sons in the community of the Appellant. The only evidence, the Appellant has adduced, is his own testimony and a word of a priest who had performed the ceremony. A general custom which the Appellant intends to prove requires greater proof than the one Appellant adduced before the court. Moreover, there is no dispute with regard to the fact that the Appellant did not plead in his written statement about existence of any custom as such. Parties to a suit are always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6378 of 2013

Decided On: 22.11.2017

 Ratanlal  Vs.  Sundarabai Govardhandas Samsuka 

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Leading Judgment on Adoption of child under Hindu adoption and maintenance Act

 In the cases reported as (1) AIR 1983 SC 114
(Madhusudan Das v. Narayani Bai); (2) A.I.R. (32) 1945
Nagpur 60 (Maroti Bansi Teli v. Radhabai); and, (3) AIR
1970 SC 1286 (L. Debi Prasad v. Tribeni Devi) Shatrik
Hindu Law is discussed. In these cases it is made clear
that for proving the adoption, giving and taking are
absolutely necessary. Giving and taking is operative part
of the ceremony of adoption and so physical act of giving
and taking must be proved even if there is a deed of
adoption. In these cases, it is laid down that the evidence
on giving and taking must be free from suspicion of fraud.
It is made clear in aforesaid cases that no particular form
of adoption is required but for proving factum of adoption,
it needs to be proved that natural father was asked by
adoptive parents to give his son in adoption and then the
natural father had handed over the son and the adoptiveparents took the boy for adoption. These cases show that
the requisites of giving and taking need to be fulfilled
even in case of Sudra.
21) In the case reported as AIR 1930 PC 79 (Dal
Bahadur Singh v. Bijai Bahadur Singh) it has been made
clear that adoption must be beyond suspicion and of
unimpeachable character. It is laid down that proof should

be strict and severe. 

 It can
be said that in view of provision of section 60 of the
Evidence Act, direct evidence on adoption must be given
when it is available. 

 proof of the adoption must be free
from all suspicion of fraud and so consistent and probable
as to leave no occasion for doubt of its truth, and the
evidence in support of the same should be of"unimpeachable character." 

Privy Council held that the adoption to
be not proved observing as follows :-
"All the witnesses seem to have been friends or relations of
the parties and there is no corroboration of their testimony
such as is often found in cases of disputed adoption. No priest
or local official who might be regarded as disinterested was
called; no cards of invitation to the ceremony were produced,
and there was no photograph of the ceremony. The direct
evidence in support of the ceremony was therefore weak ...."
From these judgments of the highest Court, it is, therefore,
clear that since adoption displaces the normal order of
succession, Courts, must insist upon strict and even severe

standards of proof, and the evidence by which the adoption
is sought to be proved must be beyond suspicion and of
unimpeachable character."

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995

Saraswati Keshav Mandve, Vs  Chandrabhan s/o Baliram Kale,

 CORAM: T.V. NALAWADE, J.

 DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668

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What approach the court should adopt while appreciating evidence of adoption of child?

 In the cases reported as (1) AIR 1983 SC 114

(Madhusudan Das v. Narayani Bai); (2) A.I.R. (32) 1945

Nagpur 60 (Maroti Bansi Teli v. Radhabai); and, (3) AIR

1970 SC 1286 (L. Debi Prasad v. Tribeni Devi) Shatrik

Hindu Law is discussed. In these cases it is made clear

that for proving the adoption, giving and taking are

absolutely necessary. Giving and taking is operative part

of the ceremony of adoption and so physical act of giving

and taking must be proved even if there is a deed of

adoption. In these cases, it is laid down that the evidence

on giving and taking must be free from suspicion of fraud.

It is made clear in aforesaid cases that no particular form

of adoption is required but for proving factum of adoption,

it needs to be proved that natural father was asked by

adoptive parents to give his son in adoption and then the

natural father had handed over the son and the adoptive

parents took the boy for adoption. These cases show that

the requisites of giving and taking need to be fulfilled

even in case of Sudra.

21) In the case reported as AIR 1930 PC 79 (Dal

Bahadur Singh v. Bijai Bahadur Singh) it has been made

clear that adoption must be beyond suspicion and of

unimpeachable character. It is laid down that proof should

be strict and severe. This decision is reiterated in many

cases by various High Courts including Bombay High

Court and the Supreme Court in the cases like AIR 1983

SC 114 (cited supra) and 1977 Mh. L.J. 68 (Laxman

Ganpati Khot v. Anusuyabai) (Bombay High Court). In

these cases provision of section 101 of the Evidence Act is

referred and provision of section 3 of the Evidence Act for

the purpose of definition of proof is also referred. It can

be said that in view of provision of section 60 of the

Evidence Act, direct evidence on adoption must be given

when it is available.

 In dealing with the question of

the extent of onus, Lord Buckmaster laid down the legal

position in the following terms (at page 81, Cols.1-2):--

 "Their Lordships’ Board think it would be impossible to rely

on this piece of evidence and this piece of evidence alone for

the purpose of satisfying the very grave and serious onus that rests upon any person who seeks to displace the natural succession of property by the act of an adoption. In such a case the proof requires strict and almost severe scrutiny, and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is, having regard to the fallibility of human memory and the uncertainty of evidence given after the lapse of such time, to see that the evidence is sufficient and strong." proof of the adoption must be free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubt of its truth, and the evidence in support of the same should be of "unimpeachable character."

"All the witnesses seem to have been friends or relations of

the parties and there is no corroboration of their testimony

such as is often found in cases of disputed adoption. No priest

or local official who might be regarded as disinterested was

called; no cards of invitation to the ceremony were produced,

and there was no photograph of the ceremony. The direct

evidence in support of the ceremony was therefore weak ...."

From these judgments of the highest Court, it is, therefore,

clear that since adoption displaces the normal order of

succession, Courts, must insist upon strict and even severe standards of proof, and the evidence by which the adoption is sought to be proved must be beyond suspicion and of unimpeachable character."

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Second Appeal No. 45 of 1995

Saraswati w/o Keshav Mandve,

V

Chandrabhan s/o Baliram Kale,

 CORAM: T.V. NALAWADE, J.

 DATE : 11th JANUARY 2016

Citation: 2016 (6) MHLJ 668

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Whether court can draw inference of adoption if party had performed last rites of the deceased (adoptive parents)?

The aforesaid discussion on law shows that
ordinarily when direct evidence is available, the Court
must insist for proof of factum of adoption on the basis of
direct evidence. Even when there is a document of
adoption, the Court is expected to insist for proof of
factum of valid adoption when direct evidence is available.
There may be surrounding circumstances in existence,
which may be consistent or inconsistent with the direct
evidence. In such cases it becomes the duty of the Court
to ascertain as to whether the witnesses who have given
direct evidence on adoption are trustworthy or not and
that needs to be done on the basis of the surrounding
circumstances.
26) The facts of the aforesaid reported case
indicate that there may be surrounding circumstances like

mutation made in favour of a party claiming rights as
adopted son or there may be circumstances that such a
party had performed last rites of the deceased (adoptive
parents) or the marriage of such party was solemnized by
deceased. On the basis of such circumstances only the
Court is not expected to draw inference that these things
were done only due to adoption. When the Court comes to
the conclusion on the basis of so called direct evidence
that there was no valid adoption, surrounding
circumstances cannot help in proving valid adoption. In
the cases (cited supra) the other probabilities available for
explaining such circumstances are discussed. In one case
it is observed that when no son was born from deceased,
performance of last rites by brother of the deceased or
son of such brother is possible under Hindu law and so
such circumstance cannot weigh much for proving
adoption. Thus, the Court is expected to start with
presumption that the proof of factum of adoption must be
strict and severe.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995
Saraswati w/o Keshav Mandve,

V
Chandrabhan s/o Baliram Kale,

 CORAM: T.V. NALAWADE, J.

 DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668

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What is importance of surrounding circumstances for ascertaining trustworthiness of witnesses?

The learned counsel for the respondent,
plaintiff submitted that to ascertain as to whether the
witnesses to adoption are trustworthy, surrounding
circumstances also need to be considered. On this point
he placed reliance on the case reported as AIR 1968
Mysore 309 (Govinda v. Chimabai). The High Court
referred a case of the Supreme Court reported as AIR
1965 SC 354 (Ramchandra v. Champabai) for discussing
the importance of surrounding circumstances for
ascertaining the trustworthiness of witnesses. The
observations are at paragraph 20 of the case of the
Mysore High Court and they are as under :-
“20. ….. “In order to judge the credibility of the witnesses,
the Court is not confined only to the way in which the
witnesses have deposed or to the demeanour of witnesses,
but it is open to it to look into the surrounding
circumstances as well as the probabilities, so that it may
be able to form a correct idea of the trustworthy of the
witnesses. The issue … cannot be determined by
considering the evidence adduced in the court separately
from the surrounding circumstances which have also been
brought out in the evidence, or which appear from the
nature and contents of the document itself … “

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995
Saraswati w/o Keshav Mandve,

V
Chandrabhan s/o Baliram Kale,

 CORAM: T.V. NALAWADE, J.

 DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668

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Guidelines Governing Adoption of Children 2015

http://pib.nic.in/newsite/PrintRelease.aspx?relid=123778

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Whether juvenile justice Act shall prevail over Hindu adoption and maintenance Act?

"The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act, 2000 must be harmoniously construed. The Hindu Adoptions and Maintenance Act, 1956 deals with conditions requisite for adoption by Hindus. The Juvenile Justice Act of 2000 is a special enactment dealing with children in conflict with law and children in need of care and protection. While enacting the Juvenile Justice Act 2000 the legislature has taken care to ensure that its provisions are secular in character and that the benefit of adoption is not restricted to any religious or social group. The focus of the legislation is on the condition of the child taken in adoption. If the child is orphaned, abandoned or surrendered, that condition is what triggers the beneficial provisions for adoption. The legislation seeks to ensure social integration of such children and adoption is one method to achieve that object. The religious identity of the child or of the parents who adopt is not a precondition to the applicability of the law. The law is secular and deals with conditions of social destitution which cut across religious identities. The legislature in its wisdom clarified in sub-section (6) of Section 41 that the Court may allow a child to be given in adoption to parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters. This provision is intended to facilitate the rehabilitation of orphaned, abandoned or surrendered children. The condition must apply to all persons irrespective of religious affiliation who seek to adopt children of that description. The object of rehabilitation and providing for social reintegration to orphaned, abandoned or surrendered children is a matter of high legislative policy. It is in effectuation of that policy that the legislature has stipulated that adoption of such a child must proceed irrespective of the marital status of a person taking in adoption and irrespective of the number of living biological children of the parents seeking adoption. Consequently, where the child which is sought to be adopted falls within the description of an orphaned, abandoned or surrendered child within the meaning of sub-section (2) of Section 41 or a child in need of care and protection under Clause (d) of Section 2, the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 must prevail. In such a case the embargo that is imposed on adopting a child of the same sex by a Hindu under Clauses (i) and (ii) of Section 11 of the Hindu Adoptions and Maintenance Act, 1956 must give way to the salutary provisions made by the Juvenile Justice Act. Where, however, the child is not of a description falling under the purview of Chapter IV of the Juvenile Justice Act, 2000, a Hindu desirous of adopting a child continues to be under the embargo imposed by Clauses (i) and (ii) of Section 11 of the Act of 1956. If the two pieces of legislation, both of which are enacted by Parliament are harmoniously construed, there is no conflict of interpretation. Resolution of Conflicting provisions the alternate hypothesis.

Alternatively, even if there were to be a conflict between the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the latter Act which would prevail. This is on the well settled principle that when there are two special Acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail. The Supreme Court applied this principle in the context of a conflict between the Companies Act 1956 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in its decision in Allahabad Bank v. Canara Bank,MANU/SC/0262/2000 : (2000) 4 SCC 406. Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them. Bennion on Statutory Interpretation (5th ed., 2008) § 80: Implied amendment.

Here, the 1956 Act prohibits a Hindu from adopting a child when he or she already has a child of the same gender, and the 2000 Act creates a general right to adopt abandoned, surrendered, or orphaned children. While there is a presumption against implied amendment or repeal under Indian law, the Supreme Court has recognized that "this presumption may be rebutted where the inconsistency cannot be reconciled." Municipal Council, Palai v. T.J. Joseph MANU/SC/0032/1963: AIR 1963 SC 156, 1, 1564. If the 2000 Act is held to be inconsistent with the 1956 Act, when passing the later Act Parliament impliedly amended the Hindu Adoptions and Maintenance Act, 1956, to permit adoption of children in the specified subclass, irrespective of whether a person has children of the same sex."

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

Darshana Gupta Vs. None & Anr.

S.B. CIVIL MISC. APPEAL NO. 144/15
DATE OF JUDGMENT:
February 9, 2015.
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Reportable
Citation;AIR 2015 Raj105

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Whether Person belonging to any community can adopt children under juvenile justice Act?

The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 470 OF 2005

SHABNAM HASHMI Vs UNION OF INDIA & ORS.

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Whether it is mandatory to perform the ceremony of giving and taking for valid adoption of the child?

In Hindu Law in the celebrated decision of this Court reported in Lakshman Singh Kothari (supra), thel has been succinctly stated in paragraph 10 which reads as under:

“10. The law may be briefly stated thus: Under the Hindu law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.”

Supreme Court of India

Mst.Param Pal Singh Tr.Father vs M/S National Insurance Co.& Anr. on 14 December, 2012

Bench: T.S. Thakur, Fakkir Mohamed Kalifulla

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Whether it is permissible to adopt second child of same sex?

 In my view clause (b) of sub-section (6) of section 41 of the Juvenile Justice Act is permissive and not restrictive. It permits parents to adopt a child of the same sex even if they have a living biological child of the same sex. It is  often thought that a subtle differentiation may be made by the parents between a biological child and an adoptive child of the same sex. The legislature has therefore expressly permitted adoption of a child of the same sex even if the parents have a biological child or children of the same sex living on the date of adoption. Section 6(b) or any other provision of the Juvenile Justice Act does not prevent adoption of a child where the adoptive parents have another living adopted child of the same sex. Though this issue has not been specifically considered, there are precedents where this Court has allowed adoption of a child even if the proposed adoptive parents, or person in case of an adoption by an individual, already have a living adopted child of the same sex. In Indian Adoption Petition No. 70 of 2009 (decided on 13th January 2010, Coram: V.M. Kanade, J.), this Court permitted an adoptive mother to adopt a female child though she already had a living adopted daughter. Similarly in Foreign Adoption Petition No. 44 of 2011 (Coram: Smt. R.S. Dalvi, J.), by an order dated 10th August 2011 this Court permitted adoption of a female child by a couple though the couple already had another living adopted daughter.

6. I, therefore, hold that the adoptive parents are entitled to adopt a child of the same sex irrespective of the fact that they already have a living adoptive child of the same sex.

Indian Association For Promotion ... vs Unknown on 13 January, 2012

Bench: D.G. Karnik

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION FOREIGN ADOPTION PETITION NO. 1 OF 2012 WITH

JUDGE'S ORDER NO. 2 OF 2012

Indian Association for Promotion of

Adoption & Child Welfare .. Petitioner And

1) Christopher Drury

2) Shenaz Drury .. Proposed Adopters

CORAM: D.G. KARNIK, J

DATED : 13TH JANUARY 2012

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