42-year legal battle: How a Bombay High Court ruling rewrote widow’s right to adopt

“The consequence of adoption is that the adopted child becomes the child of the adopted mother, i.e., the widow, as well as her deceased husband, who statutorily becomes the adoptive father of the adopted child from the date of adoption. The adoption cannot be for the widow herself or only for the husband of the widow,” the court said in its May 22 order.

The order noted that the Supreme Court, in various judgments, has expressly held that when a child is taken in adoption by a widow, the child also becomes the adopted son of the deceased husband of the widow. It is stated that the adopted child is transplanted from his biological family to the adopted family.

While giving on the question of the validity of adoption, the court highlighted that the litigation has been pending since 1984, and has directed the trial court to decide the claim for partition expeditiously

Case of 42 years of legal battle for adoption validity

The plea was filed under Section 100 of the Code of Civil Procedure to challenge the judgment and decree dated November 2014 passed by the district judge, Nagpur.

The legal battle originated in 1984 and concerned the properties of the man who passed away in 1935 and his son. This man died without issue, leaving behind his widow, who in 1971 adopted a boy (respondent) via a registered deed.

The petitioners, the children of the man’s sister, challenged the adoption’s validity, seeking to be declared the absolute owners of the ancestral property. They argued that because the family was governed by the Banaras School of Hindu Law, the widow of the man could not legally adopt without the express consent of her late husband.

The respondent here, the adopted son, claimed that the adoption was valid and all the rituals required to be followed were duly observed. It was further their contention that the adoption is also established by virtue of the adoption deed in 1971. As regards the legality of adoption vis-à-vis permission from the husband, they contend that the adoption was after commencement of the Hindu Adoptions and Maintenance Act (HAMA),1956, and, therefore, the general principles of Hindu Law prior to enactment of the said Act will not be applicable.

The trial court held that the adoption of respendent by the widow was a legal and valid adoption, and the court dismissed the petition.

‘Adoption to continue name and family of her husband’

• It is not in dispute that the parties are governed by the Banaras School of Hindu law.
• Under the Banaras School of Hindu law, a widow could adopt a child after the demise of her husband only if she was expressly authorised to do so by the husband.
• However, in the case at hand, the adoption of the respondent is after the enactment of HAMA.
• Section 8 of the HAMA specifically enables a Hindu widow to adopt a child, either male or female.
  Section 4 of the Act specifically provides overriding effect to the SA 234.15 and 143.15 – final provisions of the Act over any text, rule, or interpretation of Hindu law or any custom or usage prevailing before commencement of the Act.
• Likewise, Section 5 of the Act expressly provides that all adoptions to be made after the commencement of the Act shall be governed by the provisions of the Act.
• When Section 8 of the Act is perused, it is seen that an unmarried woman or a widowed woman is competent to adopt a child in adoption. The Section does not speak about any authorization from the husband of the widow to take a child in adoption.
• It will also be appropriate to refer to Section 12 of the Act, which states that a child taken in adoption will be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption, and from such date, all the ties of the child in his family of birth shall be severed.

• Perusal of the deed of adoption will demonstrate that the widow has not expressly stated whether she has adopted the child for herself or for her husband.
• The words in the adoption deed that she was taking the respondent in adoption to continue the name and family of her husband will not give rise to an inference that the adoption was for the husband.
• The said words will only indicate the reason for taking the respondent into adoption. Apart from her words, the other contents of the adoption deed do not indicate that the widow took the respondent in adoption either for herself or for her husband.
• The contention that the adoption is for the husband is therefore liable to be rejected. The trial court has correctly interpreted the terms of the adoption deed and has rightly rejected the contention that the adoption was for the husband.