# Bhanu Pratap Singh v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Writ A No. 10300 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanu-pratap-singh-v-state-of-u-p-ors-46131
- **Pages:** 13

## Headnote

A. Service Law - U. P. Recruitment of
Dependents
of
Government
Servants
Dying-in-Harness Rules, 1974 - Hindu
Adoption and Maintenance Act, 1956 -
Proviso to Section 7 - Service law -
Compassionate Appointment - Adoption
deed claimed - No wife's consent in
Adoption deed - Effect - Proviso to
Section 7 makes it imperative for a Hindu
male to secure his wife's consent to an
adoption that he makes, unless she 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 - There
is nothing in any of these three exceptions
- A wife living apart from the husband,
utterly estranged, is still a wife, until the
marital bond between the parties is
severed by a decree of divorce or nullity of
marriage - Held, the impugned order,
holding the adoption not valid, does not
suffer from any infirmity. (Para 21 and 26)
836 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Civil Law - Hindu Adoption and
Maintenance Act, 1956 - Proviso of
Section 7 -Adoption - Matrimonial law -
Judicial Separation - Husband's obligation
- A virtual or constructive divorce, as if it
were, are concepts not accepted generally
in matrimonial laws - Even a judicial
separation would not put an end to the
husband's obligation under the proviso to
Section 7 - Mere estrangement between
the man and wife without disruption of
the marital status, in accordance with law,
that may either be by a decree for divorce
or annulment or by death of the wife,
would not take the case out of mischief of
the proviso to Section 7, requiring the
wife's consent to the adoption. (Para 21
and 25)
Writ Petition dismissed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,954 of 45,645. This is a partial read: ask again with offset=39954 for what follows._

1 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
835
But, it may not be so in a case where the
employment is secured through utter fraud.
It is well known that fraud vitiates all
solemn transaction. Any transaction that is
the result of a fraud is a nullity. Fraud is
required to be undone, wherever and
whenever it is found. This is not to be
misunderstood
and
mistaken
by
the
Authorities as a licence to label any
irregularity or illegality as fraud and then
short-circuit the procedure prescribed by
law to support a particular action.

22. The present case, however, is
definitely a case where the petitioner
cannot claim that he ought to be proceeded
with against in disciplinary proceedings.
His is a case where it can safely be said that
he was never validly appointed; his
appointment is a nullity. It has rightly been
undone. Also under the circumstances, the
petitioner has been afforded sufficient
opportunity. Before this Court, whatever
ripples had been created by falsehood and
confounding numericals to capitalize on the
fraud, have been laid open and bare to the
sunshine of truth by Mr. Neeraj Kushwaha's
punctilious examination of the Board's
record, which he has scripted in his report
with commendable clarity.

23. In the result, this writ petition fails
and is dismissed with costs in the sum of
Rs.15,000/-. The petitioner is directed to
deposit the costs awarded in the Account of
the Secretary, Board of High School and
Intermediate Education, U.P., Prayagraj
within six weeks of date. In the event, the
costs are not deposited within the time
allowed, on a certification to this effect
made by the Secretary, Board of High
School and Intermediate Education, U.P.,
Prayagraj to the Collector, Basti, the
Collector, Basti is ordered to recover the
aforesaid sum of money from the petitioner
as arrears of land revenue and credit it
immediately upon recovery into the Board's
Account.
----------
(2021)01ILR A835
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 10300 of 2017

Bhanu Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Lal Behari Yadav, Sri Kamla Kant
Srivastava, Sri Kshitij Shailendra, Sri Rajesh
Kumar Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - U. P. Recruitment of
Dependents
of
Government
Servants
Dying-in-Harness Rules, 1974 - Hindu
Adoption and Maintenance Act, 1956 -
Proviso to Section 7 - Service law -
Compassionate Appointment - Adoption
deed claimed - No wife's consent in
Adoption deed - Effect - Proviso to
Section 7 makes it imperative for a Hindu
male to secure his wife's consent to an
adoption that he makes, unless she 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 - There
is nothing in any of these three exceptions
- A wife living apart from the husband,
utterly estranged, is still a wife, until the
marital bond between the parties is
severed by a decree of divorce or nullity of
marriage - Held, the impugned order,
holding the adoption not valid, does not
suffer from any infirmity. (Para 21 and 26)
836 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Civil Law - Hindu Adoption and
Maintenance Act, 1956 - Proviso of
Section 7 -Adoption - Matrimonial law -
Judicial Separation - Husband's obligation
- A virtual or constructive divorce, as if it
were, are concepts not accepted generally
in matrimonial laws - Even a judicial
separation would not put an end to the
husband's obligation under the proviso to
Section 7 - Mere estrangement between
the man and wife without disruption of
the marital status, in accordance with law,
that may either be by a decree for divorce
or annulment or by death of the wife,
would not take the case out of mischief of
the proviso to Section 7, requiring the
wife's consent to the adoption. (Para 21
and 25)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Vikas Jauhari Vs St. of U.P. & ors. , 2011
(10) ADJ 729
2. Kamla Rani Vs Ram Lalit Rai @ Lalak Rai
(Dead) through Legal Representatives & ors. ,
(2018) 9 SCC 663
3. Brajendra Singh Vs St. of M.P. & anr., (2008)
13 SCC 161

(Delivered by Hon'ble J.J. Munir, J.)

1. In this writ petition, parties have
exchanged affidavits, pending admission.
These include a supplementary affidavit
filed on behalf of the petitioner.

2. Admit.

3. Heard forthwith.

4. Mr. Kshitij Shailendra, Advocate,
appears on behalf of the petitioner, whereas
all the three respondents, who are the State
and its officers, are represented by Mr.
Manvendra
Dixit,
learned
Standing
Counsel.

5. The question involved in this
petition is :

" Whether the words "If he has a wife
living" occurring in the proviso to Section
7 of The Hindu Adoptions and Maintenance
Act, 19561 include an estranged wife living
apart from her husband, but not divorced ?
"

6. Rajendra Singh and Raj Narayan
Singh were brothers. They were both sons
of one Uday Raj Singh. Both brothers were
married. Rajendra Singh was married to
Smt. Phulmati, whereas Raj Narayan Singh
was married to Smt. Kamla Devi. Both the
brothers
were
natives
of
Village
-
Mirzapur, Post - Kajha, District - Mau.
Rajendra Singh and Smt. Phulmati were an
issueless couple, whereas Rajendra Singh's
brother, Raj Narayan Singh had a son,
Bhanu Pratap Singh. Bhanu Pratap Singh is
the petitioner here. Rajendra Singh was a
Gardener, in the employment of the Forest
Department. He was posted in the control
of respondent no. 3. Rajendra Singh, being
issueless, adopted his brother's son, Bhanu
Pratap Singh, the petitioner here, on
07.02.2001. The adoption was purportedly
made in accordance with Hindu rites, with
all ceremonies of giving and taking being
observed. A deed of adoption was,
however,
executed
much
later,
on
14.12.2009. It was admitted to registration
on 15.12.2009. The deed of adoption shows
that parties to the adoption were Raj
Narayan Singh and his wife Smt. Kamla
Devi on the one hand, described as the first
party, and Rajendra Singh alone on the
other, described as the second party.
Rajendra Singh represented himself as an
unmarried man, according to the recitals
carried in the adoption deed. This was
done, as it appears, because Rajendra Singh
and his wife Smt. Phulmati were an
1 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
837
estranged couple. Rajendra Singh, for
obvious reasons, could not secure Smt.
Phulmati's
consent
to
the
adoption.
Rajendra Singh died in harness on
03.06.2016, leaving behind him his wife
Smt. Phulmati, a fact acknowledged in the
writ petition, and the much disputed
adopted son of his, Bhanu Pratap Singh, the
petitioner. Bhanu Pratap Singh obtained a
succession certificate of sorts from a
nondescript officer, called an Officer InCharge
(Certificates),
acting
for
the
Collector of Mau. This certificate is dated
25.10.2016.

7. It must be remarked that this
certificate dated 25.10.2016 is more an
expression of hesitation than certification.
It says that this certificate is not valid for
the purpose of any case relating to
inheritance or income tax. Words to this
effect are scribed at the head of the
document. At the foot of it, there is a note,
which says that the certificate is founded on
an administrative inquiry alone. It would
not apply to a case relating to succession in
Court. It would have no effect under the
various laws, where a requirement is there
to produce a succession certificate from a
Judge. It is then mentioned in the note that
for claims up to the value of Rs. 5,000/-,
the certificate would be valid. The last
limitation indicated is that the certificate is
not to be used in a foreign country.

8. This Court must make it bold to
remark
that
the
document
dated
20.10.2016, purporting to be a succession
certificate, or whatever it is, is the
embodiment of an absolutely unauthorized
act by the Collector's office. There is no
provision under any law that authorizes the
Collector of a district to issue a succession
certificate of any kind. The learned
Standing Counsel has not been able to
show any law, authorizing the Collector to
issue a succession certificate of any worth,
relating either to movable or immovable
property. This Court must deprecate the
tendency of citizens to readily rush to
authorities
administrative,
instead
of
approaching the Judge or Court of ordinary
original civil jurisdiction, who commands
wide powers in matters affecting civil
rights of parties and to determine civil
questions. It is well-reputed that succession
certificates, letters of administration to
estates of deceased and probates of Will are
all matters that are specifically entrusted
under the Succession Act to Judges,
including this Court. The Collectors ought
not issue certificates partaking the colour of
succession certificates, which have a
tendency of confounding rights of parties.
No more is required to be said about this
matter.

9.

Now,
the
certificate
dated
25.10.2016 mentions that Bhanu Pratap
Singh is the adopted son of the late
Rajendra Singh. It also mentions that his
status is founded on a registered adoption
deed. It also certifies that apart from Bhanu
Pratap Singh, Rajendra Singh did not leave
any other heir entitled. Acting on the
certificate dated 25.10.2016, Bhanu Pratap
Singh
staked
his
claim
before
the
respondent-Authorities, under the The Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying-in-Harness
Rules, 19742, asking to be appointed on
compassionate basis, due to death of the
late Rajendra Singh, his adoptive father
while still in service. This application
appears not to have been attended to by
respondent no. 3, and remained pending for
some time. Bhanu Pratap Singh preferred
Writ - A No. 53860 of 2016, complaining
of inaction on the third respondent's part in
the matter. He sought a direction for the
838 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration
of
his
claim
to
a
compassionate appointment. This Court, by
order dated 17.11.2016 made in Writ - A
No. 53860 of 2016, disposed of the
aforesaid
writ
petition,
ordering
the
Divisional
Director,
Social
Forestry
Division, Mau, respondent no. 3 to consider
and decide the petitioner's claim in
accordance with law, preferably within a
month of the date of production of a
certified copy of the order.

10. In deference to that direction
made by this Court, the Divisional
Director, Social Forestry Division, Mau,
respondent no. 3, by his order dated
17.12.2016, rejected the petitioner's claim,
holding that he was neither the sole heir nor
a dependent of Rajendra Singh, within the
meaning of the Rules of 1974. It was held
that Smt. Phulmati was the deceased's wife
and his sole heir-dependent. The petitioner,
Bhanu Pratap Singh, was his brother's son,
whose father and mother, Raj Narayan
Singh and Smt. Kamla Devi, were alive.
The adoption was not found valid on facts
and in law, for the reasons indicated in the
order.

11. Aggrieved, this writ petition has
been preferred.

12. Notice, pending admission, was
issued to the respondents on 17.03.2017,
and they have filed a counter affidavit
jointly on behalf of respondent nos. 2 and 3
on 22.08.2017, to which, a rejoinder
affidavit has been filed on behalf of the
petitioner on 05.08.2017. A supplementary
affidavit dated 07.02.2019 has also been
filed.

13. A perusal of the impugned order
shows that the third respondent, the
Divisional
Director,
Social
Forestry
Division,
Mau,
has
disbelieved
the
adoption and held it to be a sham. The third
respondent,
while
considering
the
petitioner's claim, also had before him, the
deceased Rajendra Singh's widow Smt.
Phulmati, who objected to the claim
founded on adoption. She stated that she
was the sole heir and dependent of the
deceased. Amongst the many reasons that
the third respondent has assigned to reject
the petitioner's claim for a compassionate
appointment under the Rules of 1974, is the
compromise decree in O.S. No. 145 of
1994, passed by learned Civil Judge
(Senior Division), Mau dated 06.08.1994.
This decree acknowledges the fact that
Smt. Phulmati is Rajendra Singh's wife. It
also embodies the fact that Rajendra Singh,
who was an employee of the Forest
Department, had got a nomination recorded
in his Service Book and Group Insurance
Scheme (G.I.S.) in favour of Smt. Kamla
Devi, owing to strained relations with his
wife. It has been covenanted by the terms
of the compromise embodied in the decree
that now, the name of Smt. Phulmati,
Rajendra Singh's wife, be substituted as his
legal heir in the service record, in place of
Smt. Kamla Devi. There is also a covenant
about Smt. Kamla Devi receiving a sum of
Rs. 500/- per month towards maintenance,
which would be chargeable to his pension
and property also.

14. This Court has looked into that
decree, annexed to the counter affidavit.
The impugned order further shows that the
adoption has been disbelieved for other
reasons as well. It has been noticed that the
extract of the family register filed by the
petitioner, along with his application,
shows that the name of his father, indicated
therein, is Raj Narayan Singh, and that of
his mother, Kamla Devi, whereas Smt.
Phulmati Devi's husband is shown as
1 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
839
Rajendra Singh. It has next been noticed in
the order impugned that Rajendra Singh
has described himself in the deed of
adoption as unmarried, whereas his wife
Smt. Phulmati Devi is alive. It has also
been recorded by the third respondent that
while the date of adoption deed relied upon
by the petitioner is 27.11.2009 (in fact, it is
14.11.2009), the petitioner's mark-sheets
relating to his B.A. degree for the first year,
the second year and the third year, vis-à-vis
the examinations of 2011, 2012 and 2013,
show the name of the petitioner's father as
Raj Narayan Singh, and that of his mother,
Smt. Kamla Devi. The inference appears to
be that in case the petitioner were adopted
in terms of the registered adoption deed of
2009 (which, in fact, embodies an adoption
of the year 2001), there was no occasion for
the petitioner's father and mother's name to
be mentioned in his educational records as
Raj Narayan Singh and Smt. Kamla Devi,
who
are
his
natural
parents.
The
educational documents would have borne
his adoptive father's name. On these
grounds, the third respondent has held the
adoption to be a sham, and the petitioner
not at all the adoptive son of the deceased,
entitling
him
to
compassionate
appointment.

15. Mr. Kshitij Shailendra, learned
counsel for the petitioner, has been at pains
to assail the impugned order. He has
submitted that there is nothing wrong about
the adoption. He asserts that the third
respondent has remarked in error that
reference to the adoptee in the deed of
adoption as "ek ladke ko god lena chahte
hain", whereas the adoptee is Rajendra
Singh's nephew, raises suspicion. Mr.
Shailendra says that the exception taken by
the third respondent to a reference about his
nephew by Rajendra Singh as a boy, is not
at all misplaced, inasmuch as it is
permissible in law to take a nephew in
adoption. He also submits that remarks by
the third respondent that the petitioner's
father and mother are alive, also inform the
impugned
order
with
irrelevant
considerations, for it is no disqualification
under the law that the adopted boy has both
his natural parents alive. Mr. Kshitij
Shailendra has placed reliance upon a
decision of this Court in Vikas Jauhari v.
State of U.P. and Others3 to support his
submission that an adopted son is as much
a son as a natural son, for the purposes of
the Rules of 1974. He has drawn the
attention of this Court towards Paragraph 9
of the report in Vikas Jauhari (Supra),
where it is held :

"9. In view of the above, I am of
the considered view that the adopted son
also falls within the definition of family
defined
under
section
2(c)
of
U.P.
Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974 and
entitled for the claim of compassionate
appointment."

16. Mr. Kshitij Shailendra has further
submitted that so far as the validity of the
adoption is concerned, even in cases where
the adoption is not strictly proved with the
establishment of a ceremony of giving and
taking, the long duration of time during
which a person is treated as adopted, has to
be given due weight. He submits that in this
case, the petitioner was adopted way back
in the year 2001, whereas the adoptive
father died in the year 2016. The adoption,
that was completed in the year 2001, was
recorded in the deed of adoption, bearing a
specific reference to the date in the year
2001, when the petitioner was adopted.
This deed has been duly admitted to
registration. It is the learned counsel's
submission, therefore, that such long-
840 INDIAN LAW REPORTS ALLAHABAD SERIES
standing adoption, which is also natural in
its choice, given the fact that the adoptee is
the adopter's nephew, the third respondent
has erred in holding the adoption to be
sham. Mr. Shailendra has placed reliance,
in support of this part of his contention,
upon a decision of the Supreme Court in
Kamla Rani v. Ram Lalit Rai alias Lalak
Rai
(Dead)
through
Legal
Representatives and Others4 where it
was held :

"6. We cannot lose sight of the
principle that though the factum of
adoption and its validity has to be duly
proved and formal ceremony of giving and
taking is an essential ingredient for a valid
adoption, long duration of time during
which a person is treated as adopted cannot
be ignored and by itself may in the
circumstances carry a presumption in
favour of adoption. In this regard, we may
refer to the observations of this Court in L.
Debi Prasad v. Tribeni Devi [L. Debi
Prasad v.Tribeni Devi, (1970) 1 SCC 677] :
(SCC pp. 681-82, para 9)

"9. There is no doubt that the
burden of proving satisfactorily that he was
given by his natural father and received by
Gopal Das as his adoptive son is on Shyam
Behari Lal. But as observed by the Judicial
Committee of the Privy Council in
Rajendro Nath Holdar v. Jogendro Nath
Banerjee
[Rajendro
Nath
Holdar
v.
Jogendro
Nath
Banerjee,
1871
SCC
OnLine PC 11 : (1871-72) 14 Moo IA 67] ;
that although the person who pleads that he
had been adopted is bound to prove his title
as adopted son, as a fact yet from the long
period during which he had been received
as an adopted son, every allowance for the
absence of evidence to prove such fact was
to be favourably entertained, and that the
case was analogous to that in which the
legitimacy of a person in possession had
been acquiesced in for a considerable time,
and afterwards impeached by a party, who
had a right to question the legitimacy,
where the defendant, in order to defend his
status, is allowed to invoke against the
claimant every presumption which arises
from long recognition of his legitimacy by
members of his family; that in the case of a
Hindu, long recognition as an adopted son,
raised even a stronger presumption in
favour of the validity of his adoption,
arising from the possibility of the loss of
his rights in his own family by being
adopted in another family. In Rup Narain v.
Gopal Devi [Rup Narain v. Gopal Devi,
1909 SCC OnLine PC 3 : (1908-09) 36 IA
103] the Judicial Committee observed that
in the absence of direct evidence much
value has to be attached to the fact that the
alleged
adopted
son
had
without
controversy succeeded to his adoptive
father's estate and enjoyed till his death and
that documents during his life and after his
death were framed upon the basis of the
adoption. A Division Bench of the Orissa
High
Court
in
Balinki
Padhano
v.
Gopakrishna Padhano [Balinki Padhano v.
Gopakrishna Padhano, 1963 SCC OnLine
Ori 33 : AIR 1964 Ori 117] ; held that in
the case of an ancient adoption evidence
showing that the boy was treated for a long
time as the adopted son at a time when
there was no controversy is sufficient to
prove the adoption although evidence of
actual giving and taking is not forthcoming.
We are in agreement with the views
expressed in the decisions referred to
above."

17. Mr. Dixit, on the other hand,
submits that the adoption in this case is
sham to its face. He has emphasized that
post adoption, which is said to have taken
place in the year 2001, the petitioner's
name has nowhere figured, in any records,
1 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
841
as the Late Rajendra Singh's son. In the
family register also, there is nothing to
show that the adoption was ever given
effect to. In the mark-sheets relating to the
three-year B.A. course pursued by the
petitioner, names of the petitioner's parents
mentioned are those of his natural parents,
Raj Narayan Singh and Smt. Kamla Devi.
These do not mention Rajendra Singh or
his wife, Smt. Phulmati. Mr. Dixit,
therefore, says that there is no evidence at
all here to conclude that over a long period
of time, the petitioner has been treated as
Rajendra Singh's son. He also emphasized
the fact that deed of adoption was executed
and registered in the year 2009 about an
antecedent adoption that took place eight
years ago. In his submission , this also
raises suspicions about it. All the aforesaid
contentions aside, Mr. Dixit says that the
fact that consent of Smt. Phulmati was not
taken before the petitioner was adopted,
renders the adoption bad in law, in view of
the proviso to Section 7 of the Act of 1956.
To the last contention advanced by Mr.
Dixit, the Court asked Mr. Shailendra if
there was still doubt about Smt. Phulmati
being the Late Rajendra Singh's wife. Mr.
Shailendra has urged that for a fact it
cannot be denied that Rajendra Singh was
married, and that Smt. Phulmati was his
wife. He further submits that so far as the
issue about the proviso to Section 7 of the
Act of 1956 is concerned, the same ought
not be applied in a case where the husband
and wife are separated and living apart, so
much so, that the two have turned
strangers, though not formally divorced. He
submits that the proviso to Section 7 must
be read in a purposive manner and an
estranged wife, who has no connection with
the affairs of her husband, ought not be
regarded as a wife obliging the man as a
married Hindu, to secure his wife's consent
before he adopts.

18. This Court has given a thoughtful
consideration to the submissions variably
made on both sides. So far as the objection
to the impugned order based on the fact
that an adopted son may not be regarded as
a son within the meaning of Section 2 (c) of
the Rules of 1974, this Court does not think
that there is any other issue about it. The
impugned order does not decline the
petitioner's claim, because the petitioner is
an adopted son, and not a natural son.
Rather, the adoption has been held invalid.
Therefore, in the opinion of this Court, that
a
part
of
Mr.
Kshitij
Shailendra's
submissions, where he has emphasized that
the adopted son is also entitled to be treated
as the deceased's son, is not a point that
arises
for
consideration
at
all.
The
impugned
order,
read
as
a
whole,
disbelieves the factum of adoption, mostly
on relevant grounds. The fact that the
adoption is shown to have been made with
the necessary ceremonies done way back
on 07.02.2001, but the deed of adoption
executed as late as 14.12.2009, has
justifiably raised suspicion with the third
respondent. There is no ostensible reason
why the petitioner's adoptive father or his
natural parents should have waited all this
while in executing a deed and seeking its
registration, if they had to execute one. In
the opinion of this Court, it does show that
the deed is a document brought up for the
purpose of creating evidence about the
adoption, which may not be there at all.
The impugned order does not show that the
third
respondent
has
jumped
to
a
conclusion against the validity of the
adoption, for the reason alone of this time
lag between the claimed adoption and
execution of the deed. He has carefully
looked into evidence about the family
register of parties, who are close kindred,
as also the educational documents of the
petitioner, post adoption, to record his
842 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusions. The family register and the
petitioner's mark-sheets during the three
years of his graduate studies, show that
these carried names of his natural parents -
both father and mother, which find record.
There is no mention of the adoptive father's
name anywhere. Putting all these pieces of
evidence together, the third respondent has
drawn a plausible conclusion, declining to
accept the adoption.

19. There is one very relevant fact
also, which the third respondent has noticed
in the order impugned, that is, that in the
deed of adoption, Rajendra Singh has
described himself as an unmarried man,
whereas he is admittedly married to Smt.
Phulmati. This mis-description about his
marital status by the petitioner's claimed
adoptive father, Rajendra Singh, appears to
have been designedly made in order to get
around the proviso to Section 7 of the Act
of 1956. If Rajendra Singh had disclosed
that he was a married man, the adoption
would require his wife's consent, which is
not there in this case. In fact, he excluded
the requirement of consent by introducing a
false recital in the deed of adoption,
describing his status as an unmarried man.
This mis-description seriously hits the
petitioner's case of a valid adoption. In the
opinion of this Court, the third respondent
has rightly taken this brazenly false
statement in the deed of adoption into
account as a factor to discard the
petitioner's case.

20. This takes us to the last and the
purely legal submission that Mr. Kshitij
Shailendra has advanced. He has submitted
that the proviso to Section 7 would not be
attracted at all in the case of a wife so
estranged that she has ceased to be a wife,
for all practical purposes. Section 7 of the
Act of 1956 is extracted infra :

"7. Capacity of a male Hindu to
take in adoption. --Any male Hindu who
is of sound mind and is not a minor has the
capacity to take a son or a daughter in
adoption :

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.

Explanation.-- If a person has
more than one wife living at the time of
adoption, the consent of all the wives is
necessary unless the consent of any one of
them is unnecessary for any of the reasons
specified in the preceding proviso."

21. To the understanding of this
Court, the language of the proviso to
Section 7 is plain, and there is no such
compelling reason to read something else
into it. The proviso makes it imperative for
a Hindu male to secure his wife's consent to
an adoption that he makes, unless she 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. There is
nothing in any of these three exceptions,
which may prompt the Court to read into
the statute, a fourth exception of an
estranged wife. A wife living apart from
the husband, utterly estranged, is still a
wife, until the marital bond between the
parties is severed by a decree of divorce or
nullity of marriage. It is hard to read into
the plain words of the Statute, something
like a virtual or constructive divorce, to
relieve the male Hindu adopter of his
obligations
under
the
proviso.
Even
otherwise, a virtual or constructive divorce,
as if it were, are concepts not accepted
generally in matrimonial laws. To this
1 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
843
Court's understanding, even a judicial
separation would not put an end to the
husband's obligation under the proviso to
Section 7. This Court may further hasten to
add
that
the
remark
about
judicial
separation is one made in the passing, as it
does not arise on facts here. It is a matter
that may be considered in an appropriate
case, where it arises.

22. This Court must notice, in this
connection, the decision of the Supreme
Court in Brajendra Singh v. State of
Madhya Pradesh and Another5 which is
about a Hindu female's rights to take in
adoption. The case arose in the context of
the pre-amended provisions of Section 8 of
the Act of 1956. It arose in the background
of facts that one Mishri Bai had married, in
namesake, one Padam Singh. She had taken
in adoption one Brajendra Singh as her son,
and in answer to a notice under Section 10
of the M.P. Ceiling on Agricultural
Holdings Act, 1960 pleaded that adoption,
so that she could retain 54 acres of
agricultural land that was given to her by
her father. The Ceiling Authorities had
disbelieved the claimed adoption. Mishri
Bai instituted a suit, seeking a declaration
that Brajendra Singh is her adopted son.
Pending suit, she executed a registered
deed bequeathing all her properties to
Brajendra Singh, who prosecuted the suit
against the State, until its culmination in an
appeal before the Supreme Court. The facts
are set out in the decision of their
Lordships in some detail, which read thus :

"3.
Background
facts
sans
unnecessary details are as 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
solemnised 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 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.

4. In 1970, Mishri Bai claims to
have adopted appellant Brajendra Singh.
Padam Singh died in the year 1974. The SubDivisional Officer, Vidisha served a notice on
Mishri Bai under Section 10 of the M.P.
Ceiling on Agricultural Holdings Act, 1960
indicating that her holding of agricultural
land was more than the prescribed limit.
Mishri Bai filed a reply contending that
Brajendra Singh is her adopted son and both
of them constituted a joint family and
therefore are entitled to retain 54 acres of
land.

5. On 28-12-1981, the SubDivisional 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.

6. On 10-1-1982, Mishri Bai filed
Civil Suit No. SA/82 seeking a declaration
that Brajendra Singh is her adopted son. On
19-7-1989, she executed a registered will
bequeathing all her properties in favour of
Brajendra Singh. Shortly thereafter, she
breathed her last on 8-11-1989.

7. 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. 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.
844 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The respondents filed Second
Appeal No. 482 of 1996 before the High
Court. A point was raised that the adoption
was 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 the Hindu Adoptions 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.

9. The High Court noted that
there was a great deal of difference
between a female Hindu who is divorced
and one who is leading life like a divorced
woman. Accordingly the High Court held
that the claimed adoption is not an adoption
and had no sanctity in law. The suit filed by
Mishri Bai was to be dismissed."

23. Their Lordships considered the
pre-amended provisions of the Act of 1956,
where a Hindu female had no right to take
in adoption so long as the husband was
alive, or her marriage was not dissolved by
divorce or annulment. She could not adopt
even by her husband's consent. As the facts
would show that the husband had never
lived with Mishri Bai, and the marriage
was but ceremonial and one solemnized to
gratify a village custom. It was further
mooted before Their Lordships that for the
purpose of Section 8 of the Act of 1956, as
it then stood, Mishri Bai was living like a
divorced woman. As such, she could not be
regarded as disabled for taking in adoption,
Brajendra Singh. The provisions of preamended Section 8 of the Act of 1956 that
were amended vide Act 30 of 2010 w.e.f.
31.08.2010 are extracted in their Lordships'
judgment in Brajendra Singh (supra),
and, as such, are not being quoted. The
contention about Mishri Bai living virtually
like a divorced woman, in the peculiar facts
of the case, and, therefore, not disabled
from taking in adoption, was answered in
Brajendra Singh thus :

"10. In support of the appeal
learned counsel for the appellant submitted
that as the factual 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 practically from the date
of
marriage. That being so, an inference 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
contended that the question as was
considered by the High Court was not
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 v. Tapan Ranjan Das [(1994) 4
SCC 363] to highlight the concept of "sham
marriage".

11. It was also submitted that the
case of invalid adoption 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.

12. 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.

13. 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 any divorce. The stand
1 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
845
was that Mishri Bai and her husband were
living separately for a very long period.

14. Section 8 of the Act reads as
follows:

"8. Capacity of a female Hindu to take
in adoption.--Any female Hindu--

(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 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."

15. We are concerned in the
present case with clause (c) 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 herself in her
own right provided that (a) she is not
married; (b) or is a widow; (c) or is a
divorcee or after marriage her husband has
finally renounced the world 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 for cases in which she
can adopt a son or daughter to herself
during the lifetime of the husband. She can
only make an adoption in the cases
indicated in clause (c).

16. It is important to note that
Section 6(i) of the Act requires that the
person who wants to adopt a son or a
daughter must have the capacity and 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 grandson by legitimate
blood relationship or by adoption living at
the time of adoption. It follows from the
language of Section 8 read with clauses (i)
and (ii) of Section 11 that the female Hindu
has the capacity and right to have both
adopted son and adopted daughter provided
there is compliance with the requirements
and conditions of such 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.

17. 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. Admittedly in the
instant case there is no dissolution of the
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
equated. Therefore in law Mishri Bai
was not entitled to the 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 the law they
continued to be husband and wife because
there was no dissolution of marriage or a
divorce in the eye of the law. Brajendra
Singh was adopted by Mishri Bai so that he
can look after her. There is no dispute that
846 INDIAN LAW REPORTS ALLAHABAD SERIES
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 be retained by him. It is only the other
portion of the land originally held by
Mishri Bai which is the bone of contention.

19. 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 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 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.