# Tl!e State v. Ca;tain ]agjit Singh Wanchoo ]. 11~1

- **Citation:** [1962] 3 S.C.R. 627
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. WANCHoo, K .C. DAS GuPTA, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tl-e-state-v-ca-tain-agjit-singh-wanchoo-11-1-2464
- **Pages:** 14

## Headnote

Hindu Law-:--Banaras School of Mitak8hara law-:--A.doptio,.
of wife'• sister's daughter's son-Validity.
The appellant as
reversioner sued for a declaration
that the adoption of respondent 1 by respondent 2 to her
deceased husband was invalid in law ond respondent 1 acquired no right to the properties left by the husband ofrespondent
2.
The
parties were governed by the Banaras School of
~ Mitakshara HinC:u law and respondent 1 was the sister's daughter's son of respondent 2.
The question was whether a wife's
1ister's daughter's e>n could be validly adopted to a person
governed by the Banaras School of Mitakshara Hindu Law. The
High Court answered it in the affirmative and dismissed the
suit. Reliance was placed on behalf of the appellant in this
Court on Nanda Pandit's Dattak Mimansa which specifically
excluded a wife's sister's daughter's son for the purpose of
adoption on the ground of incongruous relationship (Viruddha
Sambandha) as also on the text of Ashvalayana interdicting
.... ~
marriage with a sapinda, sagotra and viruddha sambandha girl
!uch as a wife's sister's daughter on which the author of Dattak
Mimansa had relied. It was contended that when a positive
statement in the text was followed by a nee;-ativc one, the latter
1161
Tl!e State
v.
Ca;tain ]agjit Singh
Wanchoo ].
11~1
1961
Abhir:.y KlUr
v.
DLhPldra Siritli
fi28
SUPRE~fE.COURT REPORTS
[l062]
containing the prohibition must be held to be mandatory al).d
'fl"'
that in any case since the prohibition
a~ain'it marriagr. to a
sapinda or sagotra girl '"-'a5 mandatory,· the prohibition against
marriage to a
Viruddha Sambandha girl
must also be
equally ao.
!ltld, that the contentions were ,...-ithout substance and
must fail.
Adoption of a ,.,..ifc's sister's <laughter's son is legally
\'aiirl under the Banaras School of Mitakshara Hindu law.
'.'Jone of the t easons \vbich rendered marriage to a sapinda
or sa!_!otra gir! invalid \\·ere present in the case of a n1arriage
to a \'iruddha Sambandha girl and the rule against marrying
a \.'iruddha Samhandha girl '"'·as not intended by its author
to br mandatory. The extension of the rule of \'iruddha
Sambandha to adoption made by Nanda P.rndit was not meant
by him to be mandatory.
Minak&hi v, Ramanada, (1886) I.L.R. II ~Ian. 49, distinguished.
l!dd, further, that the marriage of a Hindu with his wi(c's
sister's daugh1er is not invalid in Hindu law.
Ragavtndra Rau v.Jayaram Rau, (1897) l.L.R. 20 ~lad.
283, referred to.
Case-la,,· revie,,·ed.
CIYIL Arr~:LLATE Jnusorcnox: Civil Appeal
No. :nn of Hl."i8.
Appeal from tho judgment and decree dated
J:muary 17, U);j6 of the Patn:1 High Conrt in Appeal
from Original lkcrec No. 169 of I !J47.
L. K.
Jha,
D. I'.
Singh,
R. K.
Garg,
Jf. K. Ramanmrlhi and S. C. Agrmcal, for the appellant.
H. C. l'msfl.d, for the re~ponclrnt.
Hllll. September l 5. 'l'h<' ,Judgment of tho
Court was delivered by
DAS GUPTA, ,T.-Can <1 wife'~ sister's daughter's
son be yaJidly adopted to a person governed by the
Bcuarns School of the Mitaksharn Hindu Law ?
That is tho main question raised in this appeal
brought on a certificate granted by the High Court
at Patna. The plaintiff8 who would succeed to the
properties left by Balm Ram Singh on tho death
...
-
"-·
3 S.C.R.
SUPREME COURT REPORTS
629
-~ of his widow but -for the adoption of Devendra
Singh which this widow made on June 9, 1935,
brought the present suit for a declaration that
Devendra Singh was not adopted by the second
defendant, Babu Ram Singh's widow and that
in any case, the adoption is invalid in law and
so Devtndra Singh acquired no right in the pro-
-~
perties left by Babu Ram Singh.
-
-
...
The main ground on which the adoption i~
attacked as invalid is based on the fact that
Devendra Singh is Babu Ram Singh's "'idow's
sister's daughter's son. The other ground raised
in the pl!l,int based on the plaintiff's allegation
that Babu Ram Singh was governed by Mithila
School of Hindu Law was negatived by the
courts below and has been abandoned before
u

## Text

l
: S.C.R.
SUPREME COURT REPORTS
627
it is not likely now that the ti:ial will take a long
time. In the circumstances we are of opinion that
the order of the High Court granting bail to the
respondent is erroneous and should be set aside.
We therefore allow the appeal and set aside the
order of the High Court granting bail to the respondent. As he has already been arrested under the
interim order passed by th;s Court, no further order
in this connection is necessary. We, however,
direct that the Sessions Judge will take steps to
see that as far as possible the trial of the respondent starts within two months of the date of this
order.
Appeal allowed.
ABHIRAJ KUER
v.
DEBENDRA SINGH
(K. N. WANCHoo, K .C. DAS GuPTA and
J. c. SHAH, JJ.)
Hindu Law-:--Banaras School of Mitak8hara law-:--A.doptio,.
of wife'• sister's daughter's son-Validity.
The appellant as
reversioner sued for a declaration
that the adoption of respondent 1 by respondent 2 to her
deceased husband was invalid in law ond respondent 1 acquired no right to the properties left by the husband ofrespondent
2.
The
parties were governed by the Banaras School of
~ Mitakshara HinC:u law and respondent 1 was the sister's daughter's son of respondent 2.
The question was whether a wife's
1ister's daughter's e>n could be validly adopted to a person
governed by the Banaras School of Mitakshara Hindu Law. The
High Court answered it in the affirmative and dismissed the
suit. Reliance was placed on behalf of the appellant in this
Court on Nanda Pandit's Dattak Mimansa which specifically
excluded a wife's sister's daughter's son for the purpose of
adoption on the ground of incongruous relationship (Viruddha
Sambandha) as also on the text of Ashvalayana interdicting
.... ~
marriage with a sapinda, sagotra and viruddha sambandha girl
!uch as a wife's sister's daughter on which the author of Dattak
Mimansa had relied. It was contended that when a positive
statement in the text was followed by a nee;-ativc one, the latter
1161
Tl!e State
v.
Ca;tain ]agjit Singh
Wanchoo ].
11~1
1961
Abhir:.y KlUr
v.
DLhPldra Siritli
fi28
SUPRE~fE.COURT REPORTS
[l062]
containing the prohibition must be held to be mandatory al).d
'fl"'
that in any case since the prohibition
a~ain'it marriagr. to a
sapinda or sagotra girl '"-'a5 mandatory,· the prohibition against
marriage to a
Viruddha Sambandha girl
must also be
equally ao.
!ltld, that the contentions were ,...-ithout substance and
must fail.
Adoption of a ,.,..ifc's sister's <laughter's son is legally
\'aiirl under the Banaras School of Mitakshara Hindu law.
'.'Jone of the t easons \vbich rendered marriage to a sapinda
or sa!_!otra gir! invalid \\·ere present in the case of a n1arriage
to a \'iruddha Sambandha girl and the rule against marrying
a \.'iruddha Samhandha girl '"'·as not intended by its author
to br mandatory. The extension of the rule of \'iruddha
Sambandha to adoption made by Nanda P.rndit was not meant
by him to be mandatory.
Minak&hi v, Ramanada, (1886) I.L.R. II ~Ian. 49, distinguished.
l!dd, further, that the marriage of a Hindu with his wi(c's
sister's daugh1er is not invalid in Hindu law.
Ragavtndra Rau v.Jayaram Rau, (1897) l.L.R. 20 ~lad.
283, referred to.
Case-la,,· revie,,·ed.
CIYIL Arr~:LLATE Jnusorcnox: Civil Appeal
No. :nn of Hl."i8.
Appeal from tho judgment and decree dated
J:muary 17, U);j6 of the Patn:1 High Conrt in Appeal
from Original lkcrec No. 169 of I !J47.
L. K.
Jha,
D. I'.
Singh,
R. K.
Garg,
Jf. K. Ramanmrlhi and S. C. Agrmcal, for the appellant.
H. C. l'msfl.d, for the re~ponclrnt.
Hllll. September l 5. 'l'h<' ,Judgment of tho
Court was delivered by
DAS GUPTA, ,T.-Can <1 wife'~ sister's daughter's
son be yaJidly adopted to a person governed by the
Bcuarns School of the Mitaksharn Hindu Law ?
That is tho main question raised in this appeal
brought on a certificate granted by the High Court
at Patna. The plaintiff8 who would succeed to the
properties left by Balm Ram Singh on tho death
...
-
"-·
3 S.C.R.
SUPREME COURT REPORTS
629
-~ of his widow but -for the adoption of Devendra
Singh which this widow made on June 9, 1935,
brought the present suit for a declaration that
Devendra Singh was not adopted by the second
defendant, Babu Ram Singh's widow and that
in any case, the adoption is invalid in law and
so Devtndra Singh acquired no right in the pro-
-~
perties left by Babu Ram Singh.
-
-
...
The main ground on which the adoption i~
attacked as invalid is based on the fact that
Devendra Singh is Babu Ram Singh's "'idow's
sister's daughter's son. The other ground raised
in the pl!l,int based on the plaintiff's allegation
that Babu Ram Singh was governed by Mithila
School of Hindu Law was negatived by the
courts below and has been abandoned before
us.
No dispute is also raised now as regards the
factum of adoption.
The only question that
arises in this appeal therefore is whether the
adoption of a wife's sister's daughter's son is valid
in law. The High Court answered this question in
the affirmative and dismissed the suit. It is against
that decision that the present appeal has been
preferred.
In support of his contention that snob an
adoption is invalid in Hindu Law reliance is placed
by the learned counsel on the following passage of
Nanda Pandit's Dattak Mimansa :-
(see Whitley Stokes's Hindu Law Books
at pp. 590 and 591).
17. Accordingly, the brother, paternal and
maternal uncles, the daughter's son, and that
of the sister, are excluded : for they bear no
resemblance to a son.
18.
Intending this very position, it is
declared in the sequel, by the same author:
"The daughter's son, and the sister's son,
are declared to be the sons of Cudras. For
the three superior tribes, a sister's son, is nowhere mentioned as a son. Here even the
Abhir«j Ku1
v.
Debendra Si
Das Gupta].
1111
-I
Abhfraj Kun
v.
D1i11u/ra Sin11a
D., Gupto ].
630
SUPREME COURT REPORTS
(I962J
term "sister's son" is illustrative of the whole
not resombling a. eon, for prohibited co::mection
is common to them a.II.
Now, prohibited
connection is the unfitness of the son proposed to be adopted to havo hr ~n bogotten
by tho individual himself through appointment to raise ic ;ue on the wifo of anothor.
19. The mutual relation between a. couple,
being analogous to the one, being tho father or
mother of the other, connection is forbiden: as
for instance-the daughter of the wife's sister,
and the sist3r of the paternal uncle's wifo".
The mean'ng of the text is t'iis. Who11, tho
relation of tho eouplo, that is of tho bride
and bridegroom, bears analogy to that of
father or mother ; if the bridegroom be, as it
were, father of the bride, or tho bride stand
in tho light of mothor, to the bridegroom,
such a marriage is a prohibited connection.
Tho two examples illustrate theso cases in
their order.
20. In tho same manner as in tho above
toxt, of the Grihaparisistba, on m.i.rriage,
prohibited connection, in tho case of marriage,
is excoptod and so in the case in question,
one who if begotten by tho adopter, would
have beon the eon of a prohibited connection,
must be excepted; in other words,
such
person is to be adopted, as with tho mother
of whom, the adopter might have carnal
knowledge.
It is urged that in view of this specific f'xclusion of
a wife's sister's daughter's son from the list of thoso
who are fit for adoption there is no escape from
the conclusion that such an adoption would ho
invalid in law. Learned Counsel has emphasised
that great authority attaches to all statement.s of
law as regards adoption that aro contained in Dattak
Mimansa. There is no doubt that for many years
now tho Dattak Cha!!drika of Kuvera and Dattak
Mimansa of Nanda Pandit have bePn recogni~!'rl to
.,_
-
.. -
-
-..
3 S.C.R.
SUPREME COURT REPORTS
631
be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law
Lectures had in no uncertain terms characterised
the latter to be of little value; and eminent
scholars like Dr. Mandlik and Golap Chandra ,
Sarkar while writing in the latter part of the last
century subjected many of Nanda Pandit's views
to unfavourable criticism. In spite of all this the
Privy Council in Bhagwan Singh v. Bhagwan Singh(')
did recognise that both the Dattak Mimansa and
Dattak Chandrikahad been received in courts of law
including the Privy Council as high authorities and
after drawfog attention to Lord Kingsdown's statements as regards these in Rungamav.Atchama(')aud
SirJamesColvile's statement in Collector of Madurav.
Moottoo Ramlinga Sathupathy('), stated thus :-"To
call it (i.e., Dattak Mimansa) infallible is too strong
an expression, and the estimates of Sutherland and
of West and Buhler, seem nearer the true mark;
but it is clear that both works must be accepted as
bearing high authority for so long a time that they
have become embedded in the general law.'' While
saying this mention must also be made of the
observations of the Privy Council in Sri Balusu
Gurulingaswami v. Sri Balasu Ramalakshmamma(')
decided on the same date (March 11, 18!l9) hut
immediately before Bhagwan Singh's Case, was
decided, expressing their concurrence with the view
that caution was required in a~cepting the glosses
in Dattaka Mimansa and Dattak Chandrika where
they deviate from or added to the Smirities.
There can be no doubt that in laying down
the rule that the adopticn of Lhe son of a woman
who could not have been married by the ndoptive
father because ofinoongruous relationship (Viruddha
Sambandha) Nanda Pandit was adding to the
existing state of law. It is interesting to notice
here that commenting on what Saunaka had said
in describing the ritual of adoption that a
~"l~Tl!T'!~
(1) (1899) L.R. 26 !.A. 153, 161.
(S) (1868) ll M.I.A. 397, 437.
(2)
(1846) I.A. 1, 97.
(4) (1899) L.R. 261.A. IU, 136.
1961
Abhiraj Kuir
v.
Debendra Singh
Das Gupta :J.
1P6l
Abhira; K11tr
Y.
D1c..dr• SU.,h
Do:Cu/lta ].
632
SUPREME COURT REPORTS
[1962)
son should be adopted the Dattaka Cbandrika
observed at p. 14 :-
'!.'ll~TllT '!~~ f.r11)lnf~'IT
'llllll!l'llR'f 11)111111fftf1r11m I
"'
'
(Reflection of a son-The resemblance of a son,-
or in other words the capability to have been begotten, by the adopter, through appointment, and
so forth). (Sutherland's translation). The Dattak
Mimansa adopt;i this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.
It is unnecessary for us to examine what
authority should ho attached to this serious addition to the textll for determining who can be adopted, as for reasons to be presently mentioned we
are of opinion that assuming that this rule should
be accepted as of authority Nanda Pandit has
stated this merely as a recommendation and not as
a mandatory prohibition. For many years now
courtl! have recognised tho position that not only
tho Dharma Sutras and Grihya Sutras but also the
commentaries thereon and digests mingle without
hesitation statementl! of law which are intended to
be recommendations merely with statements which
are intended to be mandatory. In Balu Gurulinga·
swami's case to which reference has
just been
made tho Privy Council pointed out that recent
extension of tho study of Sanskrit had strengthened
the view of Sir William Macnaughten that "it by no
means follows that because an act has been prohibited it should therefore be considered illegal. The
distinction between tho vinculum juris and the
vinoulum pudoris is not always discernible," and
adding to tho previous statement of the Board in
Rao BalwantSinghv. Rani Kishori(1 ) decided in tho
previous year the Privy Council observed these
words of caution in Ba.luau Gurulingaswami's
case:-
"They now add that tho further study of
tho subject necel!sary for the decision of these
(I) (1898) L.R. 25 I.A. 69.
~--
........
-
•
3 S.C.R.
SUPREME COURT REPORTS
633
appeals has still ·more impressed them with
the necessity of great caution in interpreting
books of mixed religion, morality and law,
lest foreign la wycrs, ace ustomed to treat as
law what they find in authoritative books and
to administer a fixed legal system, should too
hastily take for strict law precepts which are
meant to appeal to the moral sense, and
should thus fetter individual judgments in
private affairs, should introduce restrictions
into Hindu society, and impart to it an
inflexible rigidity never contemplated by the
original law givers."
The importance of this caution has by no
means decreased in the years that have gone by.
It is therefore necessary to examine the words
used by Nanda Pandit himself in laying down this
rule against Viruddha Sambandha adoption. It
has to be noticed that while he says f;rq «l'il';'I i"l
qlliitiif: (One who if begotten by the adopter would
have been the son of a prohibited connection must
be excepted-Sutherland's translation), he does not
say anything about what would happen if Viruddha.
Sambandha Putra was adopted. If the rule was
intended to be mandatory it is reasonable to expect
that the author who as the treat.ise itself shows was
a master of logic and well acquainted with the rules
of logic and other rules which deal with the question
of mandatory injunctions would give clear indication
of that view. This was all the more reasonable to
expect as he was introducing a new rule. But he
contents himself with saying that f~ ~qpllf '!"')
mi1t: We do not think this language that adoption
of a son of a Viruddha Sambandha girl should be
avoided, can properly be taken as mandatory so
that the rule must be obeyed on pain of the adoption being otherwise invalid in law.
· ,.___.,,,.
Notice has necessarily to be taken in this
oonnection of the fact that the only authority mentioned
by
Nanda
Pandit
himself . against ,
19~1
.A.ihirqj Kiw
v •.
D1h1ndra $i111h
D•s Gupla J.
JUI
.t4biiraj !\ wr
..
D~e11rir• Sinilt
D'1 C11pt:J J.
634
· SC.:PREME COURT REPORTS
[1962]
Viruddha Sambandlrn. marriago from which he <llJu-
~
ces his rule of Viruddha Sambandha in matters of
~
adoption is to be found in tho text of Ashvalayana :
'
!':~•Ill ~' "'~"'l 'lr.llf ll'l)Q'!;l'lfff'l'Jl'•lll'll'l'llllififq
~t'!"ll•U~ I
(Tho bridegroom duly qualified should
marr.v a
duly qualified maiden who
is
younger in yean;, is not a sapinda, is not
of the same gotra, and whose marriage
doeo not involve a
viruddha sambandha)
(contrary relationship).
It is followed a little later by this comment :
~~If~: f'l'il''!T!ml•Q'A'q:
!!<~: I
• •
Q'qf
'lTl!if'l'J{f~T f'l<!!lfq<'lll: flf!!T I
(Viruddha Sambandha is that Sambandha
(relation) which is viruddha (contrary or improper) owing to the relationship (existing)
betwt·en tho bride and the bridegroom (before
their marriage) being similar to that of a
father or mother.
As
for instanco the
daughter of the wife's sister (and) tho sister of
the maternal uncle's wife).
Is this rule man<latorv? In other words, would a marriage of a girl standi1ig in the Viruddha Sambnndha
relatio11ship to the bridegroom be invalid. Wo are not
>iatisfied that this is tl1c position in Jaw. It is striking
that though the numerous Dharma Sutras and Grihya
Sutras, deal at great length with the question of the
girl who can Lo taken in marriage not one of them
with the solitary exception of Ashvalaya.na has anything to say a.bout Viru<ldha Samban<lha.
Coming to moro recent times tho only Digest
in which imy reference to this Virudha Sambandha
of Ashvalaya.na can be traced is in Nimaya Sindbu
(late Hith century). 'There· is no reference to this
however in Raglmnandana's exhaustive treatise on
marriage udhvahatattva which was written in the
early 16th century. In Nirnaya Sindhu there is only
a ba.ld reference to this in these words :-
...
1
,
-
- ...
--
3 S.C.R.
SUPREME COURT REPORTS
635
11111f'IV1'lt•f"~"l!= 1 q•n ')o,i<tf•f~•z-"aif11q11ill"'1-
"'l•t•lia" ~it'Rilt f"q «;il•q: '"qil<fl<l!i": l 'q>l't 'lltll'T·
,·<I' !j~fl!"I fq'!~q'«'()'<flll '11
1 •f<I l
(There is also the bar to marriage ':Jy
savings (of sages). As in the Grihyaparishisth:O, "should not marry a girl of V i··uddha
Sambandha
(incongruous
relationsh~p)"
Virnddha. Sambandha was illustrated thus:
".As in the case of wife's sister's daughter;
fat;her's brother's wife's sister."
without any comments whatsoever. It is reasonable
to think that the numerous Smritikars and commentators who have dealt with the subject of marriage
were acquainted with Ashvalayana's te:x:t but did
not think it necessary to refor to it tLS it was a
recommendatory rule not considered to be of much
importar.ce.
Mr. Jha argues that wLen a positive sbtement
is followed .JY a negaLive "tatement, the negative
stafoment 1 ,ould always be held to contain a prohibitory m<>n<late.
Thus he says that as aft0r sa.ying :;moiit i!<:t w&lut'l<ll l!i"•oti 1111iqu) ! (7<rlfqi'I) says ne:x:t
at;lf'!•il'l«riim:;i1'1f'IQ: «;il•"ltl!'lqlia the rule contc1ined in
this latter porti0<1 should be held to be mandatory.
We can find no ;iustification either in the modern
rulea of interpretation or in the rules of intClrpretation of the old Hindu Shastras for 1mch a view. One
in',~<mce where a negative rule following a positive
direction on this very subject of maniage cannot
possibly be considered to be mandatory can be
found in Yajnavalkaya's te:x:t :-
atfll'l'!l'I 11~11! wlR•lli f~"!i~'f. r
ill"'"'lr11,..i
~iimfqqt llli1'lllr'{ 11
11111:W11•ii
'i11'!11<ftli«l!l'ITii 11'!1'iil!'l I
{Let him, wh9se life as bachelor is unsullied, marry a wife who posses1;es good qualities, who has not been enjoyed by another,
who is beautiful, who is not his sapinca, who
is younger than hilllself, l who is .not. sufferi~
1961
Abhiraj Kuer
"
Debendra Singh
Das Gupta]~
1961
.-tMiroj Kiur
Y,
D161ndra Sintli
Da1 CufJta ].
636
SUP~E'ME COURT REPORTS
[1902)
from any complaints, who has brothers, and
who docs not belong to the family descended
from the same primitive guide."
Quite dearly the rule t'iM a girl suffering from
disease should not be married is not a mandatory
rule even though it follows some po~itive rules
about marriage. That this is tho position has been
pointed by Vigyaneshwar. It is interesting to
notice in this oonnection-Ashvalayana's own statement about marriage rnles in t.he fourth section of
the first Chapter of his Grihaya Sutra. After saying
~f~ ~lit ll11•m (a daui;hter ~hould be given to a
man of understanding) he eaye in the noxt text
~~~"'ff" lilf"frin'1r1'!:~1! (that
one should
marry a girl of nnderstanding, gocd looks, good
conduct and g()od qualities) and one who is not
suffering from any disease.
This also is a oa.so
of a
positive
statement that a person should
marry a girl
of understanding, goo<l looks,
good
conduct and good
qualities,
followed
by a rnle thnt a person should not marry a girl
suffering from disease. Even so, it cannot be
imagined for a moment that this .. rule that ono
should not marry a girl suffering from disease is a
mandatory rule, implying that marriage with such
a girl would be invalid.
In 1my case, argues the learned counsel, when
we find the three rules against marriage to a sapinda
girl and sagotra girl and Viruddha Sambandha girl
in tho samo text as hero and admittedly the first
two are mandatory and marriage to a sapinda gi.rl
or a sagotra girl would be invalid there is no reason
why the same result should not follow on broach of
the third rule
against marrying a
Viruddha
Sambandh:~ girl. 'l'he reasons why marriage to a
sapinda girl or a sagotra girl has always been held
to be invalid are succinctly stated by lt3ghnnandana
in
bis
Udhvahatattva
in a
passage which
has been transhted thus by Dr. Jogendra Nath
Bhattacharyya in his Commentaries on Hindu Law;
Third Edition, Vot I, at p. 188:-
.... -
"'
..
3 S.C.R.
SUPRE1\1E COURT R.EPOliTS
637
"The negative · ordinances prohibiting
marriage with girls of the same gotra, pravara
etc., are parudasa (exceptional clauses) having
reference to a vidhi; they are also prohibitions
prop9r, like the prohibitory rule about the
sexual union on parva days, because they forbid such marriages by the accompaniment of
condemnatory anr:l penance clauses, (See Texts
of Apastamba and Sumantu), (cited on p. 187)
and in view also of the fact that such
marriages may spring from natural inclination.
The term wife is like the terms yupa
(sacrificial post) ahavaniya (sacrificial fire), and
denotes a female taken in marriage with
occult ceremonies. Therefore, where a sapinda
or a sagotra girl is taken in marriage, she does
not become a wife."
It is a clear that none of the reasons which
justify the view that a breach of the first two rules
in Ashvalayana's text viz., the rules against
marriage of a sapinda girl, or a sagotra girl, should
have the conse<juence that the marriage should be
invalid are present in the case of a breach of the
third rule, which is against marrying a Viruddha..
Sambandha girl,
Tt appears clear to us that Ashvalayana himself did not intend the rule against marrying a
Viruddha Samban<lha girl as a mandatory prohibition. This must have been even more clear to
Nanda Pandit and so when extending Viruddha
Sambimdha to adoption on the Yery basis of
Ashvalayanas rule against Viruddha Sambandha
marriage, Nanda P.indit
could
not have but
intended his rule against Viruddha Sambandha
adoption as a mere recommendation and not a
mand'itory prohibition.
Our attention was drawn to a decieion of the
Madras High Court in Minakshi v. Ramanada (')
where the learned judges observed:-
(() (1886)!.L.R. II Mad. 49.
11'1
~4bhiraj.Kuer
v.
Dtbtndra 'Jinth
Dar Ou;ta J.
638
SUPREME COURT REPORTS
; (1932]
1961
'
.. . . ''In the case of marriage, the~e are three
Aihiraj K,,,,.
prohibitions, viz., ·
• · · · :: · , · ·. ·
n,b,.;;.s;.gh
. · (1) The couple-bet~e~n whom inarrlage is
v.,c.pi.];·- - •· · , proposed should.not be sa.pindas; ,
·.····
(2) They should notbe ugotras; and
•
·... ; -i'' (3) There
should 'be . llO' viriiddha
".• •· ,., Sambandha or coritra,ry relationship as would
"
render sexu.11 · conri'"ction '· between . them
incestucus." · · ·
The real question ~hich wa~ bef~n• th~·Full Bench
was ·whdher there can be valid adoption under the
Hindu law if ti. legal marriage is not possible
between the person for whom the 11doption i9 made
and the mother of the bciy who is adopted, in her
maiden ~tate; - In the case before the Full Bench,
the adoptee's mother JVas a sagotra of the acloptive
father, and so, there could •be no legal marria:1e
between theni. ' It was not necessary therefore for
the learned judges in the Minakshi's case to consider
whether. the Viruddha SambE.ndha rule , against
marriage was mandatory or not.·
' ~- .we' a:~~ not a~a~e of any de~ision 'in' any of
the High Courts where Nanda Pand~t's:rule. tlgainst
Viruddha Sam bandha adoption has been contiidercd
to •be· a mandatory !prohibition .. , For the reasons
discussed above we are· of opinion that' this rule
. introduced by Nanda Pandit is only a recommench-
. tion and 'consequently it is of no avail to' the
appellant to show that the adoption of wife's sister's
daughter's son is invalid. ·
·
.. · . · , , ..
:III~. Jha then tri~d to tak~ advantage of the ..
rule which has been accepted by almost all tho High
· Courts except Bombay that there can be no .valid
legal adoption unless a legal marriage is. possible
·between. the. person for whom the adoption is made
and the mother of the boy who is adopted, in her
maiden state, by urgin" that there can be no legal
' marriaO'e between a per:On' and his wife's sister's
daught~r. Assuming for tlie present that it is no
I
3 S.C.R.
SUPREME COURT REPORTS
(}39
longer open to ch~llenge the correctness of this rule
at least so far as the Banaras School is concerned,
we are still of the opinion that this argument is of
no avail, fur the simple reaRon that we see no reason
to think that there can be no legally valid marriage
between a perwn and his wife'.s sister's daughter.
For the only argument in support of the contention,
that there can be no such legal marriage between
persons thus related, the learned counsel had to fall
back upon Asvalayana's Viruddha Sambandha rule.
That however as we have already shown, is in our
opinion only a recommendation and cannot support
a proposition that a
marriage in breach of the
Viruddha Sambandha rule is invalid.
As early as 1878 Dr. Gooroodas Banerjee (whose
erudition equalled his orthodoxy) dealing with this
question in his Tagore Law Lectures on the Hindu
Law of Marriage and Stridhan observed thus :
(p. 64).
"The prohibition by reason of affinity,
which exsts in other sy[tems, has no place in
Hindu Law. But the prohibition of marriage
with sapindas to some extent supplies its place
and so did the prohibition of widow marriage.
The Hindu Law, however, does not prohibit
marriage with the wifo's sister, or even with
her niece or her aunt."
Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol. J, also
stated after referring to what has been mentioned in
Nirnaya Sindhu against marriage with the wife's
sister's daughter (already quoted above): "Instances
of m.:.rriage with wife's sister's daughter, and wife's
brother's daughter, are <tlso not unknown in Bengal
though, Hindu sentiment is strong against such
marriages." The question was directly raised in
Ragavendra Rau v. Jayaram Rau ('). M:r. Justice
Subramania Ayyar and M:r. Justice Benson relying
on Dr. Gooroodas Banerjee's statement of the law
(11 (1897) I.L.R. 20 Mad. 283.
Abhirqj Kutr
v.
Deb~n,drJ Singh
Das Gupta· J.
JW.1
.-ibiiraj K1ur
v.
Debnulro Sinzh
Du G.,ta ].
6!0
Sl;l'REME COURT REPORTS
[1962)
and also on Syama Charan Sarkar's Vyava.sthaDarpan, Dr. Bbattacharyya's commentaries on
Hindu Law and certain other text books held that
marri'l.ge between a man and his wife's sister's
dnughter is valid.
The learned judges pointed out
that in South India at least there was little to
indicate that such marriages are disappovcd of "by
tho mombers ofany section of the community."
In our opinion a marriage of a Hindu with
his wjfo's sister's daughter is not invalid in law
e\·cn though it mar not be liked by certain people.
Mr. Jha's second argument based on the rulo which
we h1n·" assumed to be not open to challenge for
the pttrposo of this case that there can be no valid
ndoptio11 unless a legal marriage is possible between
the p9rson for whom the adoption is made and the
motlwr of th" boy who is adopted in her maiden
state, must thc>refore foil.
'V" therefore hold that the High Court was
right in its eonclusion that tho nd0ption of a wife's
sister's daughtc>r's son is Ya.lid
i11 lnw. The appeal
is accordingly dismissed with costH.
Appeal dismiBsed.
:>.·
..
•• -