The Division bench of the Supreme Court on Friday held that, for an adoption to be treated as valid, compliance of the conditions mentioned under Section 7 and 11 of the Hindu Adoptions and Maintenance Act, 1956 is mandatory. The bench comprising of Justice L Nageswara Rao and Justice Deepak Gupta observed that, Section 7 and 11 lays down the following conditions that need to be satisfied for an adoption to be treated as valid under law, i.e. (a) the consent of the wife before a male Hindu adopts a child; (b) proof of ceremony of actually giving and taking in adoption.
Facts of the case
In the present case the Appellant filed for a partition suit in connection with a property which has been occupied by her aunt. The actual parents of the appellant had passed away when appellant was still a child. However, it was claimed by the appellant that, after the passing of her parents, her mother’s sister and her husband took her in as their adopted child. The appellant’s uncle, whom she claimed as her adoptive father, passed away intestate back in 2003. After his death, the appellant claimed a stake of his property in her alleged capacity of adopted child. When her aunt refused to partition the property, the appellant filed a suit before the Trial Court. The suit was dismissed by both the Trial Court and the High Court. This led the appellant to approach the Apex Court.
- The Court opined that consent of the wife is mandatory for adoption of a child by a Hindu male.
- The Court also noted that, proof of ceremony of giving and taking in adoption is mandatory for the adoption to be valid under law.
- The Court cited the case of Ghisalal v. Dhapubai (Dead) by Lrs. & Ors to substantiate its observations.
The SC’s decision
In the present case the Division bench of the Supreme Court comprising of Justice L Nageswara Rao and Justice Deepak Gupta held that, Section 7 and Section 11 of the Hindu Adoptions and Maintenance Act, 1956 lays down some conditions which are to be complied with mandatorily for an adoption to be treated valid under the law. These conditions are (a) the consent of the wife before a male Hindu adopts a child; (b) proof of ceremony of actually giving and taking in adoption.
For the case in hand, the appellant could only prove that she was treated like a daughter by the man she claimed to be her adoptive father. Other than that, the wife of the alleged adoptive father, all the aunts of the appellant, even the appellant’s own grandmother, dined that the appellant was their adopted child. They just agreed to the fact that she was given to them to raise her, as her parents passed away when she was just a kid.
The Supreme Court took note of the fact that there was no evidence to show that adoption took place as per the provisions of the Hindu Adoptions and Maintenance Act, 1956, expect the statement of the appellant. The Court then focused on the judgment of Ghisalal v. Dhapubai (Dead) by Lrs. & Ors where it was held that, “consent of wife is mandatory for proving adoption.” The Apex Court further stated that, “The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption.” Therefore the Supreme Court held that there was no error in the High Court’s order and dismissed the appeal.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
1. M Vanaja v. M Sarala Devi (Dead), Civil Appeal No. 8814 of 2010.