# DHANRAJ v. SMT. SURAJ BAI April 3, 1975

- **Citation:** [1975] Supp. 1 S.C.R. 73
- **Court:** Supreme Court of India
- **Decided:** 1975-04-03
- **Case number:** Civil Regular First Appeal No. 70 of 1966
- **Bench:** V. R. Krishna Iyer, N. L. Untwal!A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhanraj-v-smt-suraj-bai-april-3-1975-6544
- **Pages:** 6

## Headnote

Jlindu ,4._doptions and Maintenance
Act. 1956-Ss. 6(ii), 9 and 11-IJ
step-mother could give step-son in adoption in the absence of natural parentsIf a nlaior could be given in adoption.
73
A
B
Section 6(ii) of the Hindu Ao.option and Maintenance Act, 1956 states C
that no adoption shall be valid unless the person giving in adoption had the
<:apacity to do so.
Section 9(1) says that no -person except the father or
mother or the guardian of a child shall have the capacity to give a child
in adoption.
Section 11 (vi) says that the
child to be adopted must be
actually given ancl taken in
adoption
by
the parents or
guardian
concerned.
The appellant, who was 21 years old, was adopted by the respondent
and her husband.
His natural parents having been dead, he was given in
D
adoption by his step-mother.
Subsequently, however, the respondent and her
husband filed a suit questioning the validity of the adoption and for declara~
tion that the adoption was illegal and invalid. The appellant claimed that
under the Hindu Adoptions and Maintenance Act, 1956 the step-mother was
-competent to give him in adoption.
'
The trial court held that the adoption was invalid on the grounds that
the appellant had been given in adoption by his step-mother, who was not E
competent to "do so.
The High Court upheld the view of the trial court.
Dismissing the appeal to this Court.
HELD : (1) T~e. 'physical
a~t of
giving and receiving was absolutely
necessary to. the vahd1ty of adoption under the Hindu Law as it existed before
the co!D-1ng into fo\ce of the Act.
Identical is the position under the Hindu F
~dopttons and Maintenance Act, 1956. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. [76 E].
fapa1nma V.· V. Appa .Rau and Ors., LL.R. 16, Mad. 384 and Haribhau
ttJnd Anr. v. A1abrao Ra1n1i lngale and Ors., A.I.R. 1947 Nagpur 143 referred
o .
. 1 (2) Under_ s. 9(1) of. the fl.ct. even the guardian of a child has the capa·
c1 Y to give him or her in au.option.
But the step-mother as such has not
G
~~~r:t}~~he~~n~~~~e~a~~~f~~~e:~ {7~ Fj. (1) must necessarily mean· th~
and (!~t
1
~h: ~f:;r ~~~h!r s. ~ t~~t t:0~erm 'mother' means the natural mother
tance etc., is distinct a~d. differ~nt fr~~ for tt:-1a.ny h1rposes such as inherian adoptive mother takes the place of rng1tbe e~, w1{ e_, generally speaking,
The necessity of the explanation (i) t
9 r o a
intents and purposes.
mother from the expression mother 80 ~h:t
arde Jo exclude the adoptive H
competent to give the adopted son in adoptio~nt a op vbe dmother may not be
'
o some o y else. [76 HJ.
(4) Under the Jaw as engrafted in
10
f
capable of being taken in adoption if h s.
b ~he Act, a person is not
~5 Ydearlsl and that is the reason that thee ~~rJ ~ch·Jd_ .. chmplbeeted the a~e of
an
. The use of the word " ers
,, .
.!.
as
en used 1n ss.
ment of s. 10 is not for the pu!'pos on fib~· ~(u1) and at the. commencee o
nng1ng about any ciifference in
74
A
B
c
SUPREME COURT RF.PORTS
[1975J SUPP. S.C.R.
'
law in regard to the giving of the child.
If the custom permits a person of
the age of 15 years or more to be taken in adoption then even such person
would be the child of the father or the mother.
'Child' would not necessarily
mean in that context a minor child.
If the child is a minor, in the absence
of the father or the mother a guardian appointed by the will of the child's father
a mother and a guarOian appointed or declare-d by a court, would be competent to give the child in adoption.
But in case of a major in the absence
of the father or the mother, no body will be competent to give him in adop-
. tion because no such provision has been made in the Act to meet such a
contingency.
The scheme of the Act \Vas not to make a child of J 5 vears
of age or above fit to be taken in adoption.
Exception \:vas inade in favour
of a custom to the contrary. [77 C~F]
.

## Text

DHANRAJ
v.
SMT. SURAJ BAI
April 3, 1975.
[V. R. KRISHNA IYER AND N. L. UNTWAL!A, JJ.J
Jlindu ,4._doptions and Maintenance
Act. 1956-Ss. 6(ii), 9 and 11-IJ
step-mother could give step-son in adoption in the absence of natural parentsIf a nlaior could be given in adoption.
73
A
B
Section 6(ii) of the Hindu Ao.option and Maintenance Act, 1956 states C
that no adoption shall be valid unless the person giving in adoption had the
<:apacity to do so.
Section 9(1) says that no -person except the father or
mother or the guardian of a child shall have the capacity to give a child
in adoption.
Section 11 (vi) says that the
child to be adopted must be
actually given ancl taken in
adoption
by
the parents or
guardian
concerned.
The appellant, who was 21 years old, was adopted by the respondent
and her husband.
His natural parents having been dead, he was given in
D
adoption by his step-mother.
Subsequently, however, the respondent and her
husband filed a suit questioning the validity of the adoption and for declara~
tion that the adoption was illegal and invalid. The appellant claimed that
under the Hindu Adoptions and Maintenance Act, 1956 the step-mother was
-competent to give him in adoption.
'
The trial court held that the adoption was invalid on the grounds that
the appellant had been given in adoption by his step-mother, who was not E
competent to "do so.
The High Court upheld the view of the trial court.
Dismissing the appeal to this Court.
HELD : (1) T~e. 'physical
a~t of
giving and receiving was absolutely
necessary to. the vahd1ty of adoption under the Hindu Law as it existed before
the co!D-1ng into fo\ce of the Act.
Identical is the position under the Hindu F
~dopttons and Maintenance Act, 1956. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. [76 E].
fapa1nma V.· V. Appa .Rau and Ors., LL.R. 16, Mad. 384 and Haribhau
ttJnd Anr. v. A1abrao Ra1n1i lngale and Ors., A.I.R. 1947 Nagpur 143 referred
o .
. 1 (2) Under_ s. 9(1) of. the fl.ct. even the guardian of a child has the capa·
c1 Y to give him or her in au.option.
But the step-mother as such has not
G
~~~r:t}~~he~~n~~~~e~a~~~f~~~e:~ {7~ Fj. (1) must necessarily mean· th~
and (!~t
1
~h: ~f:;r ~~~h!r s. ~ t~~t t:0~erm 'mother' means the natural mother
tance etc., is distinct a~d. differ~nt fr~~ for tt:-1a.ny h1rposes such as inherian adoptive mother takes the place of rng1tbe e~, w1{ e_, generally speaking,
The necessity of the explanation (i) t
9 r o a
intents and purposes.
mother from the expression mother 80 ~h:t
arde Jo exclude the adoptive H
competent to give the adopted son in adoptio~nt a op vbe dmother may not be
'
o some o y else. [76 HJ.
(4) Under the Jaw as engrafted in
10
f
capable of being taken in adoption if h s.
b ~he Act, a person is not
~5 Ydearlsl and that is the reason that thee ~~rJ ~ch·Jd_ .. chmplbeeted the a~e of
an
. The use of the word " ers
,, .
.!.
as
en used 1n ss.
ment of s. 10 is not for the pu!'pos on fib~· ~(u1) and at the. commencee o
nng1ng about any ciifference in
74
A
B
c
SUPREME COURT RF.PORTS
[1975J SUPP. S.C.R.
'
law in regard to the giving of the child.
If the custom permits a person of
the age of 15 years or more to be taken in adoption then even such person
would be the child of the father or the mother.
'Child' would not necessarily
mean in that context a minor child.
If the child is a minor, in the absence
of the father or the mother a guardian appointed by the will of the child's father
a mother and a guarOian appointed or declare-d by a court, would be competent to give the child in adoption.
But in case of a major in the absence
of the father or the mother, no body will be competent to give him in adop-
. tion because no such provision has been made in the Act to meet such a
contingency.
The scheme of the Act \Vas not to make a child of J 5 vears
of age or above fit to be taken in adoption.
Exception \:vas inade in favour
of a custom to the contrary. [77 C~F]
.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 476(N) of
1973.
From the Judgment and decree dated the 23rd August. 1973 of
the Rajasthan High Court in D. B. Civil Regular First Appeal No.
70 of 1966.
-
S. M. Jain for the appdlant.
L. M. Singhvi, Urmila Sarur, A. Gupta and .T. K. Jain
for the
D
respondent.
E
F
G
H
The Judgment of the Court was delivered by
UNTWALIA, J.-In this appeal filed by certificate of the Rajasthan
High Court we arc concerned with the question of the legality and
validity of the adoption of the appellant by the husbane of the respondent.
Amichand, respondent's husband,
adopted the appellant
with the consent of the respondent on the 18th November, 1959 and
executed a registered c!eed evidencing the fact of adoption.
The appellant at that time was 21 years of age.
Both his natural father
and mother were dead. He had a step.mother Bhuri Bai with whom
the appellant was residing at the time of the impugned adoption. The
appellant was given in adoption by his
step-mother.
Subsequently
the respondent's husband ane the respondent filed a suit in the year
1963 against the appellant impeaching his adoption on various grounds
and for a declaration that the adoption was illegal and invalid. The
appellant contested the suit and. inter a/ia, pleaded a custom applicable to the parties according to which a person being of the age
of 15 years or more could be taken in adoption.
The custom was
pleaded in view of the provision of the law contained in clause (iv)
of section 10 of the Hindu Adoptions and Maintenance Act, 1~56--;
hereinafter referree to as the Act.
The appellant also stated m his
written statement that under the Act the step.mother was competent
to give him in adoption.
Several issues were framed inchrding an issue regarding the cus·
tom as pleaded.
Issue No. 1 ·A by. agreement of t~e pa~ties without
the adducing of any evidence was tned as a prehmmary ISsue by the
Trial Court. The said issue runs as follows :
"Whether the ac!option of Dhanraj is invalid on the ground
that he has been .given in adoption by his step-mother Mst.
Bhuri Bai."
'
DHANRAJ v. SURAJB~I (Untwalia, J.)
75
The Trial Court decided the issue in favour of the plaintiffs and
A
against the defendant.
The latter filed a first appeal in the High
Court.
D11ring the pendency of the appeal, plaintiff no. 1 died. The
-0nly respondent left was his wic!ow.
The High Court •has held that
the step-mother was not competent to give the appellant in adoption
and maintained the dismissal of the. snit on that preliminary issue.
Hence this appeal.
The only point, therefore, which falls for determination in this
appeal is whether the step-mother was competent to give the appel-
!Jant in adoption. If not, whether the adoption is void 'I
B
In Mayne on Hindu Law and Usage, eleventh edition is founcl
a passage at page 226 to sayC
"No other relation but the father or mother can give away
a boy.
For instance, a step-mother cannot give away her stepson, a brother cannot give
away his brother.
Nor can
the
paternal grandfather, or any other person. Nor is a woman competent to give in adoption her illegitimate son born of adulterous
D
intercourse.
It is well settled that the parents cannot delegate
their_ authority to another person, for instance, a son, so as to
enable him, after their death, to give away his brother in adoption, for the act when done m11St have parental sanction. And,
therefore, even an adult orphan cannot be adopted, because he
can neither give himself away, nor be given by anyone
with
authority to do so."
E
In Papamma v. V Appa Rau and others(') Muttusami Ayyar
and Best, JJ. have held that under the Hindu Law the step-mother
could not give her step-son in ac!option.
An identical view has been
expressed in the case of Haribhau and another v. Ajabrao Ramji
lngale and others(').
...
The question for consideration is whether the law that a stepF
mother could not give a step-son in adoption is changed after com-
-
ing into force of the Act.
Section 4(1) of the Act provides :
"Save as otherwise exprei;sly provided in this Act,-
( a) any text, rule or interpretation of Hindu law or any custom
or usage as part of that law in force immediately before
the commencement of this Act shall cease to have effect
with respect to any matter for which provision is made in
this Act".
Section 5 ( 1) says :
. "No adoption sh~ll be made after the commencement of
this Act by or to a Hindu except in accordance with the provi-
(J) I.L.R. 16, Mad. 384.
(2) A.I.R 1947, Nagpur, 143.
G
H
76
A
B
c
SUPREME COURT REPORTS
[1975} SUPP, S.C.R.
sions contained in this Chapter, and any adoption made in contravention of the saio provisions shall be void."
No adoption shall be valid as mentioned in section 6 unless-
"(ii) the person giving in adoption has the capacity to do
so ;"
Other conditions for a valid adoption under the Act are stated
in section 11 which provides :
"In every adoption, the following conoitions must be complied with : -
D
(vi) the child to be adopted must be actually given and
taken in adoption by the parents or guardian concerned or under
their authority with intent to transfer the child from the family
of its birth or in the case of an abandoneo child or a child
whose parentage is not known, from the place or family where
it has been brought up to the family of its adoption : "
E
F
H
The physical act of giving and receiving was absolutely necessary
to the validity of an adoption under the Hindu Law as it existed
before coming into force of the Act : vide para 489 at page 554 of
Mulla's Hindu Law, Fourteenth Edition.
Identical
is the position
unoer the Act.
Nor is it different as to the incapacity of the stepmother to give her step-son in adoption.
Section 9 of the Act enumerates the persons capable of giving in adoption.
Sub-section ( l)
says :
"No person except the father or mother or the guardian
of a child shall have the capacity to give the child in adoption."
The departure in the Jaw is that under the Act even the guardian
of a child has the capacity to give him or her in adoption.
But
the step-mother as such bas not.
The father or mother mentioned
in sub-section ( 1) must necessarily mean the natural father ano the
natural mother. Explanation (i) appended to section 9 was pressed
into service to say that the step-mother is included in the term "mother"
because the said explanation says
"the expressions "father"
and
"mother" do not include an adoptive father and an adoptive mother."
Learneo counsel for the appellant submitted that step-mother
has
not been excluded from the expression "mother" and only an adoptive mother bas been so excluded.
By necessary implications, therefore, it was submitted that it ought to be held that the word "mother"
in sub-section (i) includes a step-mother.
We have no difficulty in
rejecting this argument.
Reading section 9 as a whole ano specially
in the context of sub-sections (2), (3) and (4) it is clear that the
term "mother" means the natural mother and not the step-mother.
A step-mother for many purposes such as inheritance etc. is. distinct
and differen1 from mother; while, generally
speaking, an adoptive
mother takes the place of mother to all intents and purposes.
The
necessity of the explanation, therefore, arose to exclude the adoptive
"
•
DHANRAJ v. SURAJBAI (Untwalia, J.)
77
mother from the expression mother so that an adoptive mother may A
not be competent to give the adoptecl son in adoption to somebody
else.
Learned counsel for the appellant then submitted that in case of
an adult orphan, as the appellant was at the time of adoption, no
consent was necessary of any person except the adoptee himself. No
body could be available to give him in adoption. The use
of the
B
word "child" in claU'Sc (vi) of section 11 and in section 9(1) reacl
in contra-distinction of the use of word "person" in clause (iii) of
section 6' would make it clear, counsel submitted, that the condition
of giving in adoption is applicable only to a minor child and not
to an adult.
We see no substance in this argument.
Unc!er the
law as engrafted in section 10 of the Act, a person is not capable
C
of being taken in adoption if he or she has completed the age of
15 years and that is the reason that the word "child" has been used
in sections 9 and 11.
The use of the word
"person" in section
6 (iii) and at the commencement of section 10 is not for the purpose
of bringing about any difference in law in regarcl to the giving of
the child. If the custom permits a person of the age of 15 years
or more to be taken in adoption then even such person would be D
the child of the father or the mother.
'Child' would not necessarily
mean in that context a minor child. If the child is a minor, in
absence of the father or. the mother, a guardian appointed by the
will of the child's father or mother ancl a guardian appointed or declared by a court, would be competent to give the child in adoption.
But in case of a major in absence of the father or the mother, no
E
body will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency.
The
scheme of the Act was not to make a child of 15 years of age or
above fit to. be taken in adoption.
Exception was made in favour
of a custom to the contrary.
Learned counsel for the appellant then attemptec! to argue on the
basis of the decisions of the Bombay High Court in the cases
of F
Motilal Mansukhram v. Maneklal Dayabha(')
and Prahlad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao and others,(')
that even under the old Hindu Law the adoption of an orphan was not
valid except by custom; but if the custom permitted it, anc! iri the
case of Porwal Jains it did permit, then an orphan who was
not
minor could go in adoption by his own consent without the consent of and the giving by anybody else.
We think that it would be G
a ticklish and debatable question to decic!e whether the second part
of clause (a) of section 4 would have such a custom from the overr~ding effects of sections 6, 9, and 11. But it will be a futile exercise here to embark upon the decision of this point as in our judgment
it does not arise at all in this case.
In paragraph 4 of the written
statement the only custom pleaded was that a person more than 15
years old coulc! be taken in adop!i~n.
Nothing was pleaded to
H
say that there was a cnstom of givmg an orphan in adoption or
that a p~rson above ~h~ age of 15 years could go in adoption without
the physical act of g1vmg by anybody, on his own and with his consent anly:
On the other hand the pleading in sub-paras (1) and
(1) A.LR. 1921, Bombay, 147.
(2) A.l.R. 1958, Bombay, 79.
·~
78
SUPltBMB COURT REPORTS
[1975] SUPP. s.c.R.
A
(3) of paragraph 4 of the written statement was that under the Act
the step-mother was competent to give the defendant in ac!option and
that she did give him in adoption. It was not open to the appellant, therefore, to take this n"-.W point of law for the first time in
this Court without the foundation of facts to found it upon.
'
B
For the reasons stated above, we dismiss this appeal No costs.
P.B,R.
Appeal dismissed.
' -
•