Holding

A married Hindu woman who has not obtained a dissolution of marriage lacks the capacity to adopt under Section 8(c) of the Hindu Adoption and Maintenance Act, 1956, rendering the adoption void.

Summary

Mishri Bai, a crippled Hindu woman married to Padam Singh, lived separately from her husband and in 1970 claimed to have adopted Brajendra Singh, seeking to treat them as a joint family to retain excess agricultural land under the Madhya Pradesh Ceiling on Agricultural Holdings Act. The trial court and first appellate court upheld the adoption, but the High Court reversed, holding that a married Hindu woman cannot adopt unless her marriage is dissolved or she falls within the limited exceptions under Section 8(c) of the Hindu Adoption and Maintenance Act, 1956. The Supreme Court examined the statutory provisions, noting that mere separation does not dissolve a marriage and therefore Mishri Bai lacked the capacity to adopt. Consequently, the adoption was declared void, and the declaration sought by the appellant was denied. The Court dismissed the appeal but allowed the appellant to remain in possession of the land for six months pending a governmental decision on the surplus land.

Issues considered

The validity of an adoption made by a married Hindu woman who is living separately from her husband under the Hindu Adoption and Maintenance Act, 1956.
Whether the absence of a formal divorce or dissolution of marriage negates the capacity of a wife to adopt.
The effect of an invalid adoption on the claim of joint family status for purposes of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960.

Legislation cited

Code of Civil Procedure, 1908s. 100
Hindu Adoption and Maintenance Act, 1956s. 11, s. 6(1), s. 8(c)
Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960s. 10

Subjects

adoptionHindu lawcapacity of married womanjoint familyland ceilingsurplus landvoid adoptionHindu Adoption and Maintenance ActMadhya Pradesh Ceiling Act

Judgment

[2008] 1 S.C.R. 593

'~ BRAJENDRA SINGH
V.
A

STATE OF M.P. AND ANR.
(C.A. No. 7764 of 2001)
JANUARY 11, 2008
B
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

Hindu Adoption and Maintenance Act, 1956:
ss. B(c) rlw ss. 6(1) and 11- Hindu wife living separately
from her husband claiming to have adopted a son and seeking c
a declaration to that effect- HELD: There being no dissolution
of marriage, in law the wife was not entitled to declaration sought
for - M. P. Ceiling on Agricultural Holdings Act, 1960 - s. 10.
Madhya Pradesh Ceiling on Agricultural Holdings Act, D
1960:
-{
s.10 - Notice indicating surplus land - Noticee, a Hindu
wife living separately from her husband for a long time,
claiming to have adopted a son - Consequently, claiming to
have constituted joint family with the son, seeking to assess E
the prescribed limit accordingly - HELD: Adoption not being
permissible under the law, the land declared as in excess vests
in Government - Hindu Adoption and Maintenance Act, 1956
- ss. B(c) 6(1) and 11.
~
, The appellant was stated to have been adopted in F
1970 by one 'M', a crippled woman, practically having no
legs, who soon after her marriage started living with her
parents. She was given 32 acres of land by her parents
for her maintenance. She was served a notice under s.10
of the M.P. Ceiling on Agricultural Holdings Act, 1960 G
stating that her holding was more than the prescribed limit.
She filed objections contending that since the appellant
was her adopted son and both of them constituted a joint
family, they were entitled to retain 54 acres of land. Her
593 H
594 SUPREME COURT REPORTS [2008] 1 S.C.R.

A claim was rejected disbelieving her case of adoption. 'M'
then filed a suit seeking declaration that the appellant was
,,,
her adopted son. During the pendency of the suit she died
after executing a registered will bequeathing all her
properties in favour of the appellant. The suit was decreed.
B The first appellate court affirmed the decree. The High
Court, in the second appeal filed by the respondent-
defendants held that in absence of the consent of M's
'f
husband, the adoption was not valid.
In the instant appeal it was contended for the
c appellant that since 'M' was living separately for a very
long period from the date of the marriage, the trial court
and the first appellate court rightly drew the inference that
she ceased to be a married woman.
Dismissing the appeal, the Court
D
HELD: 1.1 In view of s.8 of the Hindu Adoption and .,._
Maintenance Act, 1956, a married woman cannot adopt at
all during the subsistence of the marriage except when ... -
the husband has completely and finally renounced the
E world or has ceased to be a Hindu or has been declared
by a court of competent jurisdiction to be of unsound
mind. If the husband is not under such disqualification,
the wife cannot adopt even with the consent of the
husband whereas the husband can adopt with the
F consent of the wife. [para 18) [603-D & E] )r

1.2 In view of the provisions of ss.8(c), 11 and 6(1),
only a female Hindu who is married and whose marriage
'
has been dissolved, i.e. who is a divorcee, has the capacity
to adopt. Any adoption made by a female Hindu who does
G not have requisite capacity to take in adoption or the right
to take in adoption is null and void. [para 1OJ [599-E & F]
+- J:
~

1.3 Admittedly, in the instant case, there is no
dissolution of the marriage. All that the evidence led points
out is that the husband and the wife were staying
H
BRAJENDRA SINGH v. STATE OF M P. AND ANR. 595

·' ~ separately for a very long period and the wife was living a A
life like a divorced woman. There is a conceptual and
contextual difference between a divorced woman and one
who is leading life like a divorced woman. Both cannot
be equated. Therefore, in law the wife was not entitled to
the declaration sought for. [para 10] [599-F & G] B
Jolly Das (Smt.) Alias Moulick v. Tapan Ranjan Das
1 [1994(4) sec 363 - distinguished.
V. TS. Chandrasekhara Mudaliar v. Kulandaivelu
Mudaliar AIR 1963 SC 185; Hem Singh v. Harnam Singh AIR c
1954 SC 581; Amarendra Man Singh Bhramarbar v. Sanatan
Singh AIR 1933 PC 155; Kishori Lal v. Chaltibai AIR 1959
SC 504 - referred to.
Hindu Law by S.V. Gupte, 3rd Edn., at pp. 899-900;
Manu, by Sir W. Jones Chapter IX, pp. 141-42 ; Mayne's D
Hindu Law and Usage, 12th Edn., p. 329 - referred to.
2. However, keeping in view the peculiar facts and
circumstances of the case, the appellant is permitted to
be in possession of the IC1nd for a 'period of six months by
which time the Government may be moved for an E
appropriate decision in the matter. It is made clear tha.t by
giving this protection the Court has not expressed any
opinion on the acceptability or otherwise of the appellant's
request to the State Government to allot the land to him.
[para 20] [604-F & G] F
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 7764
of 2001.
From the final Judgment and Order dated 25.9.2000 of
the High Court of Madhya Pradesh at Jabalpur in Second G
Appeal No. 482 of 1996.
Raju Ramachandran, Prakash Shrivastava, Pradipti
Shrivastava and P. Mahapatra for the Appellant.
Dr. N.M. Ghatate, C.D. Singh, Merusagar Samantaray, H
596 SUPREME COURT REPORTS [2008] 1 S.C.R.

A Vairagya Vardhan and Sunny Chowdhary for the Respondents. f /-
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. The present appeal involves
a very simple issue but when the background facts are
B considered it projects some highly emotional and sensitive
aspects of human life.
2. Challenge in this appeal is to the judgment of the
Madhya Pradesh High Court at Jabalpur in a Second Appeal
under Section 100 of the Code of Civil Procedure, 1908 (in
C short the 'C.P.C.').

3. Background facts sans unnecessary details are as

D
follows:
Sometime in 1948, one Mishri Bai, a crippled lady having
practically no legs was given in marriage to one Padam Singh.
-
The aforesaid marriage appears to have been solemnized
because under the village custom, it was imperative for a virgin
girl to get married. Evidence on record shows that Padam Singh
had left Mishri Bai soon after the marriage and since then she
E was living with her parents at Village Kolinja. Seeing her plight,
her parents had given her a piece of land measuring 32 acres
out of their agricultural holdings for her maintenance. In 1970
Mishri Bai claims to have adopted appellant Brajendra Singh.
Pa dam Singh died in the year 1974. The Sub-Divisional Officer,
Vidisha served a notice on Mishri Bai under Section 10 of the
F M.P. Ceiling on Agricultural Holdings Act, 1960 (in short the
'Ceiling Act') indicating that her holding of agricultural land was
•
more than the prescribed limit. Mishri Bai filed a reply contended
that Brajendra Singh is her adopted son and both of them
constituted a Joint family and therefore are entitled to retain 54
G acres of land. On 28.12.1981, the Sub Divisional officer by order
dated 27 .12.1981 disbelieved the claim of adoption on the
ground inter alia that in the entries in educational institutions
adoptive father's name was not recorded. On 10.1.1982, Mishri
Bai filed Civil Suit No. SA '32 seeking a declaration that
H Brajendra Singh is her adopted son. On 19.7.1989, she
BRAJENDRA SINGH v. STATE OF M.P. AND ANR. 597
[PASAYAT, J.]
; ~ ..--I executed a registered will bequeathing all her properties in A
favour of Brajendra Singh. Shortly thereafter, she breathed her
last on 8.11.1989. The trial court by judgment and order dated
3.9.1993 decreed the suit of Mishri Bai. The same was
challenged by the State. The first appellate court dismissed the
appeal and affirmed the judgment and decree of the trial court. B
It was held concurring with the view of the trial court that Mishri
Bai had taken Brajendra Singh in adoption and in the will
executed by Mishri Bai the factum of adoption has been
mentioned. Respondents filed Second Appeal No. 482 of 1996
before the High Court. A point was raised that the adoption was c
not valid in the absence of the consent of Mishri Bai's husband.
The High Court allowed the appeal holding that in view of Section
8(c) of Hindu Adoption and Maintenance Act, 1956 (in short the
'Act') stipulated that so far as a female Hindu is concerned, only
those falling within the enumerated categories can adopt a son.
D
4. The High Court noted that there was a great deal of
~
difference between a female Hindu who is divorced and who is
I 'leading life like a divorced woman. Accordingly the High Court
· held that the claimed a'doption is not an adoption and had no
sanctity in law. The suit filed by Mishri Bai was to be dismissed. E
5. In support of the appeal learned counsel for the appellant
submitted that as the fact~al position which is almost undisputed
goes to show, there was in fact no consummation of marriage
as the parties were living separately for a very long period
1 practically from the date of marriage. That being so, an inference F
• that Mishri Bai ceased to be a married woman, has been rightly
recorded by the trial court and the first appellate court. It was
also pointed out that the question of law framed proceeded on
a wrong footing as if the consent of husband was necessary.
There was no such stipulation in law. It is contented that the G
question as was considered by the High Court was not
·1 specifically dealt with by the trial court or the first appellate court.
Strong reliance has been placed on a decision of this Court in
Jolly Das (Smt.) Alias Moulick v. Tapan Ranjan Das [1994(4)
SCC 363] to highlight the concept of "Sham Marriage". H
598 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 6. It was also submitted that the case of invalid adoption ~ t

was specifically urged and taken note of by the trial court.
Nevertheless the trial court analysed the material and evidence
on record and came to the conclusion that Mishri Bai was living
like a divorced woman.
B 7. Learned counsel for the respondents on the other hand
submitted that admittedly Mishri Bai did not fall into any of the
enumerated categories contained in Section 8 of the Act and
therefore, she could not have validly taken Brajendra Singh in
adoption.
c
8. It is to be noted that in the suit there was no declaration
sought for by Mishri Bai either to the effect that she was not
married or that the marriage was sham or that there was an~
divorce. The stand was that Mishri Bai and her husband wer
living separately for very long period.
D
9. Section 8 of the Act reads as follows:
~
"8. Capacity of a female Hindu to take in adoption - Any
female Hindu -
E (a) who is of sound mind,
(b) who is not minor, and
(c) who is not married, or if married, whose marriage
has been dissolved or whose husband is dead or has
F completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind, has capacity to take a
son or daughter in adoption."
10. We are concerned in the present case with clause (c)
G of Section 8. The Section brings about a very important and far
reaching change in the law of adoption as used to apply earlier
\.·
in case of Hindus. It is now permissible for a female Hindu who
is of sound mind and has completed the age of 18 years to take
a son or daughter in adoption to hP.rself in her own right provided
H that (a) she is not married; (b) or is a widow; (c) or is a divorcee
BRAJENDRA SINGH v. STATE OF M.P. AND ANR. 599
[PASAYAT, J.]
. ~- .J or after marriage her husband has finally renounced the world A
or is ceased to be a Hindu or has been declared to be of unsound
mind by a court having jurisdiction to pass a declaratory decree
to that effect. It follows from Clause (c) of Section 8 that Hindu
wife cannot adopt a son or daughter to herself even with the
consent of her husband because the Section expressly provides B
for cases in which she can adopt a son or daughter to herself
during the life time of the husband. She can only make an
adoption in the cases indicated in clause (c). It is important to
note that Section 6(1) of the Act requires that the person who
wants to adopt a son or a daughter must have the capacity and c
also the right to take in adoption. Section 8 speaks of what is
described as 'capacity'. Section 11 which lays down the
condition for a valid adoption requires that in case of adoption
of a son, the mother by whom the adoption is made must not
have a Hindu son or son's son or grand son by legitimate blood
D
relationship or by adoption living at the time of adoption. It follows
...f from the language of Section 8 read with Clauses (i)& (ii) of
Section 11 that the female Hindu has the capacity and right to
I have both adopted son and adopted daughter provided there
is compliance of the requirements and conditions of such
E
adoption laid down in the Act. Any adoption made by a female
Hindu who does not have requisite capacity to take in adoption
or the right to take in adoption is null and void. It is clear that only
a female Hindu who is married and whose marriage has been
dissolved i.e. who is a divorcee has the capacity to adopt.
...f Admittedly in the instant case there is no dissolution of the F
~
marriage. All that the evidence led points out is that the husband
and wife were staying separately for a very long period and Mishri
Bai was living a life like a divorced woman. There is conceptual
and contextual difference between a divorced woman and one
who is leading life like a divorced woman. Both cannot be G
equated. Therefore in law Mishri Bai was not entitled to the
1 declaration sought for. Here comes the social issue. A lady
because of her physical deformity lived separately from her
husband and that too for a very long period right from the date
of marriage. But in the eye of law they continued to be husband H
600 SUPREME COURT REPORTS (2008] 1 S.C.R.

A and wife because there was no dissolution of marriage or a ). ,
divorce in the eye of law. Brajendra Singh was adopted by Mishri
Bai so that he can look after her. There is no dispute that
Brajendra Singh was in fact doing so. There is no dispute that
the property given to him by the will executed by Mishri Bai is to
B be retained by him. It is only the other portion of the land originally
he~ld by Mishri Bai which is the bone of contention.
,._
11. Section 5 provides that adoptions are to be regulated
in terms of the provisions contained in Chapter II. Section 6 deals
with the requisites of a valid adoption. Section 11 prohibits
c adoption; in case it is of a son, where the adoptive father or
mother by whom the adoption is made has a Hindu son, son's
son, or son's son's son, whether by legitimate blood relationship
or by adoption, living at the time of adoption. Prior to the Act
under the old Hindu law, Article 3 provided as follows:
D "3. (1) A male Hindu, who has attained the age of discretion
and is of sound mind, may adopt a son to himself provided
he has no male issue in existence at the date of the
,.
adoption.

E (2) A Hindu who is competent to adopt may authorize
either his ( i ) wife, or ( ii ) widow (except in Mithila) to
adopt a son to himself."
12. Therefore, prior to the enactr;len.t of the Act also
adoption of a son during the lifetime of a male issue was
F prohibited and the position continues to be so after the ,..
enactment of the Act. Where a son became an outcast or
renounced the Hindu religion, his father became entitled to adopt
another. The position has not changed after the enactment of
the Caste Disabilities Removal Act (21 of 1850), as the outcast
G son does not retain the religious capacity to perform the
obsequial rites. In case parties are governed by Mitakshara law,
additionally adoption can be made if the natural son is a
.,,.
congenital lunatic or an idiot.
13. The origin of custom of adoption is lost in antiquity.
H The ancient Hindu law recognized twelve kinds of sons of whom
BRAJENDRA SINGH v. STATE OF M.P. AND ANR. 601
[PASAYAT, J.]
.....-ii
five were adopted. The five kinds of adopted sons in early times A
must have been of very se.condary importance, for, on the whole,
they were relegated to an inferior rank in the order of sons. Out
of the five kinds of adopted sons, only two survive today, namely,
the dattaka form prevalent throughout India and the kritrima form
confined to Mithila and the adjoining districts. The primary object B
of adoption was to gratify the means of the ancestors by annual
i offerings and, therefore, it was considered necessary that the
offerer should be as much as possible a reflection of a real
descendant and had to look as much like a real son as possible
and certainly not be one who would never have been a son. c
Therefore, the body of rules was evolved out of a phrase of
Saunaka that he must be "the reflection of a son". The restrictions
flowing from this maxim had the effect of eliminating most of the
forms of adoption .. (See Hindu Law by S.V. Gupte: 3rd Edn., at
pp. 899-900.) The whole law of dattaka adoption is evolved from
D
two important texts and a metaphor. The texts are of Manu and
_,, Vasistha, and the metaphor that of Saunaka. Manu provided
for the identity of an adopted son with the family into which he
"" was adopted. (See Manu, Chapter IX, pp. 141-42, as translated
by Sir W. Jones.) The object of an adoption is mixed, being
religious and secular. According to Mayne, the recognition of E
the institution of adoption in the early times had been more due
to secular reasons than to any religious necessity, and the
religious motive was only secondary; but although the secular
.., motive was dominant, the religious motive was undeniable. The
religious motive for adoption never altogether excluded the F
• secular motive. (See Mayne's Hindu Law and Usage, 12th
Edn., p. 329.)

14. As held by this Court in VT S. · Chandrasekhara
Mudaliar v. Kulandaivelu Mudaliar (AIR 1963 SC 185)
G
substitution of a son for spiritual reasons is the essence of
-+ adoption, and consequent devolution of property is mere
accessory to it; the validity of an adoption has to be judged by
spiritual rather than temporal considerations and devolution of
property is only of secondary importance.
H
602 SUPREME COURT REPORTS [2008] 1 S.C.R.

)<- ..
A 15. In Hem Singh v. Hamam Singh (AIR 1954 SC 581) it
was observed by this Court that under the Hindu law adoption
is primarily a religious act intended to confer spiritual benefit on
the adopter and some of the rituals have, therefore, been held
to be mandatory, and compliance with them regarded as a
B condition of the validity of the adoption. The first important case
on the question of adoption was decided by the Privy Council in
the case of Amarendra Man Singh Bhramarbar v. Sanatan t-
Singh (AIR 1933 PC 155). The Privy Council said:
Among the Hindus, a peculiar religious significance has
c attached to the son, through Brahminical influence, although
in its origin the custom of adoption was perhaps purely
secular. The texts of the Hindus are themselves instinct
with this doctrine of religious significance. The foundation
of the Brahminical doctrine of adoption is the duty which
D every Hindu owes to his ancestors to provide for the
continuance of the line and the solemnization of the
necessary rites. "" ,,.
16. With these observations it decided the question before
it viz. that of setting the limits to the exercise of the power of a
E widow to adopt, having regard to the well-established doctrine
as to the religious efficacy of sonship. In fact, the Privy Council
in that case regarded the religious motive as dominant and the
secular motive as only secondary.
17. The object is further amplified by certain observations ~
F
of this Court. It has been held that an adoption results in changing
the course of succession, depriving wife and daughters of their
rights, and transferring the properties to comparative strangers
or more remote relations. [See: Kishori Lal v. Chaltibai (AIH
1959 SC 504)]. Though undeniably in most of the cases, motive
G
is religious, the secular motive is also dominantly present. We
are not concerned much with this controversy, and as observed
by Mayne. it is unsafe to embark upon an enquiry in each case
as to whether the motives for a particular adoption were religious
or secular and an intermediate view is possible that while an
H
BRAJENDRA SINGH v. STATE OF M.P. AND ANR. 603
[PASAYAT, J.]
~·~
adoption may be a proper act, inspired in many cases by A
religious motives, courts are concerned with an adoption, only
as the exercise of a legal right by certain persons. The Privy
Council's decision in Amarendra Man Singh's case (supra) has
reiterated the well-established doctrine as to the religious
efficacy of sonship as the foundation of adoption. The emphasis B
has been on the absence of a male issue. An adoption may
either be made by a man himself or by his widow on his behalf .
with his authority conveyed therefor. The adoption is to the male
and it is obvious that an unmarried woman cannot adopt, for the
purpose of adoption is to ensure spiritual benefit for a man after
his death and to his ancestors by offering of obl.ations of rice
c
and libations of water to them periodically. A woman having no
spiritual needs to be satisfied, was not allowed to adopt for
herself. But in either case it is a condition precedent for a valid
adoption that he should be without any male issue living at the
time of adoption. D
·~
18. A married woman cannot adopt at all during the
~
subsistence of the marriage except when the husband has
completely and finally renounced the world or has ceased to be
a Hindu or has been declared by a court of competent jurisdiction
E
to be of unsound mind. If the husband is not under such
disqualification, the wife cannot adopt even with the consent of
the husband whereas the husband can adopt with the consent
of the wife. This is clear from Section 7 of the Act. Proviso thereof
~ makes it clear that a male Hindu cannot adopt except with the
consent of the wife, unless the wife has completely and finally F
• renounced the world or has ceased to be a Hindu or has been
declared by a Court of competent jurisdiction to be of unsound
mind. It is relevant to note that in the case of a male Hindu the
consent of the wife is necessary unless the other contingency
exists. Though Section 8 is almost identical, the consent of the G
husband is not provided for. The proviso to Section 7 imposes
a restriction in the right of male Hindu to take in adoption. In this
respect the Act radically depicts from the old law where no such
bar was laid down to the exercise of the right of a male Hindu to
adopt oneself, unless he dispossess the requisite capacity. As H
604 SUPREME COURT REPORTS [2008] 1 S.C.R.

)l._ ...
A per the proviso to Section 7 the wife's consent must be obtained
prior to adoption and cannot be subsequent to the act of
adoption. The proviso lays down consent as a condition ~
precedent to an adoption which is mandatory and adoption
without wife's consent would be void. Both proviso to Sections
B 7 and 8(c) refer to certain circumstances which have effect on
the capacity to make an adoption.

19. At this juncture it would be relevant to take note of Jolly
Das's case (supra). The decision in that case related to an
entirely different factual scenario. There was no principle of law
c enunciated. That decision was rendered on the peculiar factual
background. That decision has therefore no relevance to the
present case.
20. Learned counsel for the appellant submitted that in any
event, the land which is declared to be in excess of the
D
prescribed limit vests in the Government to be allotted to persons
selected by the Government. It was submitted that in view of the ~
peculiar background, the Government may be directed to ..,
consider the appellant's case for allotment of the land from the
surplus land so that the purpose for which adoption was made
E and the fact that the appellant nourished a crippled lady treating
her to be his own mother would set a healthy tradition and
example. We express no opinion in that regard. It is for the State
Government to take a decision in the matter in accordance with

F
law. But while dismissing the appeal, we permit the appellant to
be in possession of land for a period of six months by which
.• )I
...
time the Government may be moved for an appropriate decision
in the matter. We make it clear that by giving this protection we
have not expressed any opinion on the acceptability or otherwise
of the appellant's request to the State Government to allot the

.. l
G land to him.
21. The appeal is dismissed subject to the aforesaid
observations.
R.P. Appeal dismissed.
H