Issue Whether the adoption of appellant is in

Issue (1): To whom administration may be
granted, where the deceased is a Hindu, under Indian Succession Act, 1925?

From
the evidences it’s clear that the appellant had been residing with the deceased
and she was brought up by the deceased lady. Malati is well-acquainted with the
estate and despite the fact that she may not have any heritable or other
interest, but by virtue of her staying in the house with the deceased lady she
can certainly administer the property left by her. She cannot be called as a
stranger; therefore she is competent to apply for the grant of letters of
administration.

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Issue (2): Whether the adoption of appellant is in
compliance with Hindu Adoption and Maintenance Act 1956?

It was contended
that various evidences such as the proof of the adoption of Malati by the
deceased in presence of the husband, with him raising no objections against the
same, showed implied consent by him to the event which proves the adoption
under section 7 of the Act. There is also a proof of the presence of other
independent persons, and Malati’s age had also been proved by the voluntary
approach of one person among the independent persons to prove the factum of the
adoption ceremony to the court. Moreover the acceptance of the fact of the
mother-daughter relationship by the deceased and her acknowledgment of the same
is proved through the declarations made by the mother in the school records. On
the death of the adoptive mother Malati had performed the funeral ceremony of
the deceased and has been taking care of the estates and properties of the
deceased. These facts are sufficient proof of adoption and are in complete
compliance of the provisions of the Hindu Adoption and Maintenance Act,
1956.The counsel justified his arguments through the case of Lalitha
Ubhaykar Vs. Union of India1 in
which it was held that the objective of section 7 is the benefit of not just
the husband alone but the benefit of both the parents involved.

Issue (3): Whether trial Judge has dismissed application of
appellant rightly or wrongly?

The trial judge has wrongly
dismissed the application for the grant of the administration because, though
her adoption was rightly held to be invalid, in spite of that she cannot be
said to be a total stranger to the estate as per the prevailing circumstances.

Hence she was competent to apply for grant of letters of administration.

Decision :

The Calcutta High Court was in total consonance
with the perspectives and judgment of the educated Trial Judge in connection to
the confirmation of selection being lacking. It was inferred that the suit will
stand acknowledged just for the letter of organization which was allowed to the
appealing party. She was conceded the organization of the homes and properties
of the perished and was permitted to gather every one of the obligations
receivable by the domain of the expired and was coordinated to pay off every
one of the loan bosses and finish the organization inside a time of a half year
alongside the recording of the concerned records under the steady gaze of the
court. It was additionally proclaimed that the legitimate beneficiaries and
delegates of the perished could at whenever apply for the evacuation of the
litigant, if the circumstance requested.

 

Rationale:

The rationale behind the decision given by the
High Court of Calcutta was that the documentary evidences only proved that the
appellant merely used the surname of the family and no convincing document in
relation to proving otherwise could be found. Admission of the appellant to a
school by the deceased does not logically frame a proof of parental
relationship with the appellant.

Considering
legal provisions, section 7 does not justify the adoption. Section 7 of the
Act, bears adoption made by a Hindu Male, while adoption made by Hindu female
is dealt with in Section 8 of the Act and hence, the relationship established
in the case with section 7 is void. 
Section 7 clearly states the right of a male to adopt and in case he is
a married man, he is entitled to do so only with the consent of the wife and
not vice versa. A wife has no discretion to adopt even with the consent of her
husband under section 7, hence
concluding the case to be in disagreement with the adoption of the appellant by
the deceased and declaring the appellant was not a legal heiress or
representative of the deceased. Granting the letter of administration was
upheld by virtue of the appellant being well versed with the estate of the
deceased and her stay with the deceased ruling out the total stranger
applicability to her. Furthermore, there had been no claim for the same by any
legal heir or heiress of the deceased concluding the appeal for granting of the
letter of administration valid and granted.

Critical Analysis:

A short time later in the post colonial period, on
understanding the desperate need to sanction or legalize the adoption and
guardianship rules and to make them be governed by a uniform set of laws , the
Hindu Adoptions and Maintenance Act was established in 1956. It endeavored to
expel a wide range of sexual orientation inclination and attempted to build up
uniformity. After the institution of this, a mother began to have rise to state
in the issues of adoption. As indicated by sec 7 of Hindu Adoption and Maintenance
Act, 1956 a man can’t embrace or adopt a child without the assent of the lady
is legitimately married to. This gives the ladies equivocal rights to choose
whether or not they ought to adopt another child or not. However, women were
still mistreated in the eyes of law and were not on same footing as men when it
came to their motherhood also. In particular, sections 7 and 8 of the act need
a lot of grooming so as to remove such biased notion of equality given to women
with respect to men. Section 7 of the Act reads that only a male Hindu has the
capacity to take in adoption with consent of the wife and it cannot be solely
her decision. During the subsistence of marriage, a wife has no right to adopt,
but can only give consent in adoption if taken by her husband.

The section 8
of the un-amended act was highly biased. It read that only a Hindu woman who
was of sound mind and not a minor, not married, or if married, marriage should
be dissolved to make her single or a widow has the capacity to take a son or a
daughter in adoption. It denied the adoption rights to a married woman. Provided that,
if he has a wife living, he shall not adopt except with the consent of his wife
unless the wife has 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.

Then it was
substituted by the amendment made in 2010 and any Hindu woman had the right to
adopt children, if woman is married then with the consent of husband. It is to
be noted that though the new amended law has become little liberal, by allowing
any Hindu woman to adopt the children, but on the other hand it still has imposes
a limitation by not allowing a married woman to allow the adoption solely based
on her initiative, a mandatory consent with the husband was required, thereby
still holding its biased feature.

 In one of the case of Brajendra Singh v. State of
Madhya Pradesh2 it was
observed that there is a difference between a divorce woman and a woman living
her life like a divorce woman. So the wife lived separately from the husband
and adopted a child without the husband’s consent. In this case, as the
marriage was not dissolved, it was held that the marriage stands valid and the
adoption stands invalid. Similarly in our Malati Roy’s case all the evidences
which were presented by the appellant clearly showed that it is
an admitted position that Malati was adopted by the mother Tripti not by the
father, therefore the adoption was not valid. But in this case criticisms were
raised regarding the ‘consent’ of the husband, because the whole ceremony of
adoption took place in the presence of the husband, which implies husband’s
consent. But the judgment of this case was passed in the year 2006, when the
adoption by a married woman was strictly prohibited. And the amendment to
section 8 took place in the year 2010, so if this case would have taken place
after the year 2010, then Malti Roy would have got the justice on the ground
that the presence of the father during the adoption ceremonies implies
‘consent’ to adoption. Since the amended act does not stand retrospectively,
therefore for Malti Roy it wouldn’t be of any help.

Conclusion:

This
judgment was highly criticized as it was biased against the females. If we look
back into the history of the rights of the adoptive female , in the beginning
the Shastras strictly prohibited the
adoption and only natural child begotten by man and woman was considered their
own and the child gotten by all other secondary means, were strictly
condemned. The condemnation can even be evidenced through the following extract
from Rig Veda: “Oh Agni, no son is he who
spring from others,”3 Then the
adoption rules which were practiced by the Dharmashastras
became more complicated as they partially allowed this practice involving all
the ritualistic obligations that are to be performed before adopting

Though
the Act has tried to eradicate gender biasness but still not able to do that
fully. Adoption should be with the consent of both the parents, both parents
should equally participate; otherwise it will be the child only who is going to
suffer. The children are vulnerable and totally dependent on the adults who are
making their life decisions, and hence safeguarding their rights and interests
is of prime importance. Adoption not only fulfills the desire of the parenthood
on part of the adoptive parents but also provides a family to the child.

1 AIR  1991 Karnataka 186

2
(2008) 13 SCC 161

3 Paras Diwan,
Law of Adoption, Minority, Guardianship and Custody 2 (Universal  Law Publishers)