Literal Meaning
Filiation cannot be proved.
Explanation & Origin
Origin – Filiations means relationship especially of a son to his father or the adjudication of paternity. Its Latin term meaning some relation can’t be proved.
Explanation- Filiatio non potest probari is Latin term which means filiation cannot be proved. The presumption is always in favour of the legitimacy of children; and filiation cannot be proved.
Illustration
A son and father have adjudication of paternity.
Case Reference
In the case of Sivakami Achi vs S.P.R.M.A.L.S. Somasundaram[1] The real difficulty, however, lies elsewhere: where a person has no wife in existence at the date of adoption, can his deceased wife be said to be the adoptive mother? This question requires much more consideration than it has received. Where an adoption is made by a widow, it relates back to her husband’s death; but where the adoption is made by a widower, there is no reason or principle why it should date back to an earlier date such as the death of his wife. The Dattaka Mimamsa contemplates a living wife and not one who is dead. It is imposing a fiction upon a fiction to say, either that the wife must be deemed to be alive at the date of the adoption, or that the adoption should relate back to the moment of her death. For the legal fiction of maternity, there must be a wife in existence at the time of the adoption to whom the law can point as the mother. For the adoption is to the husband, and not to her. But ‘ in consequence of the superiority of the husband, by his mere act of adoption, the filiation of the adopted as son of the wife, is complete in the same manner as ‘ her property, in any other thing accepted by the husband.’ This passage is conclusive to show that the acquirer of the property in the son must be a living person. So too, if a bachelor makes an adoption as he is entitled to do the fiction of maternity has no scope and it is impossible to constitute the wife he may marry thereafter, as the legal mother of the adopted boy. She might not have been in existence at the date of adoption. The simpler and more logical conclusion appears to be that a person can be the mother of the adopted boy when she is in existence as a wife at the date of the adoption, whether or not, she consents to it.
In the case of Moulvi Mohammed And Ors. vs S. Mohaboob Begum [2] Mr. S. N. Amjad Nainar learned counsel for the petitioners; contends that Muslim Personal Law recognize does not adoption as a mode of filiations and the Court below in law in recognising, custom as enabling the respondent, herein, to plead and prove such a custom to substantiate her claim as the adopted daughter of the deceased appellant, Zaina:16,1AR, against this, Mr. M. S Subramanium, learned counsel for the respondent, submits that though the Muslim Personal Law does not recognise adoption as a mode of filiation, there is a custom the locate to which the parties belong and amongst the parties concerned, recognising adoption a mode of filiation and that custom stands preserved in spite of the Muslim Personal Law (Shariat) Application Act 26 of 1937, hereinafter referred to as the ShariatAct. Learned counsel for- the respondent drew my attention to Section 2, as amended by the Madras Shariat (Amendment) Act 18 of 1949 and Section 3 (1) of the Shariat Act.
In the case of Thirumaleshwara Bhatta Being vs Kashmutt Ganapayya And Ors[3] A wife has no place in the ceremonies connected therewith though ultimately she will participate in the spiritual welfare assured to the husband by ‘Tilothaka’ and ‘Pinda’ offered by the adopted boy after her demise. The adoption is to the husband and not to the wife but in consequence of the superiority of the husband, by his mere act of adoption, the filiation of the adopted as the son of the wife, is complete in the same manner as her property in any other thing accepted by the husband: Vide Dat. Mima I, 22 cited on page 244 of Mayne on Hindu Law and Usage, 11th Edn. The principle deduced from these citations is that the adoption by the husband is to himself and he could filiate as he likes that son to his wife and make that son succeed to her properties.
Edited by Vigneshwar Ramasubramania
Approved & Published – Sakshi Raje
[1] (1956) 1 MLJ 441
[2] AIR 1984 Mad 7
[3] AIR 1953 Mad 132
