Kalindi Damodar Garde Vs. Manohar Laxman Kulkarni

Facts:

Laxman was adopted by Saraswati along with his three sons Gangadhar, Dattatraya and Manohar in 1935. After the adoption, Kalindi (daughter) was born to Laxman and his wife. When the natural father of Laxman effected partition, he was excluded from the property of his natural father as he was gone to Saraswati in adoption. Subsequently, Saraswati died and Laxman inherited the property of Saraswati and this forms the subject matter of the present dispute. However, after the death of Laxman there was a dispute on the question of property between his sons and daughter. Kalindi had applied for mutation of revenue records and including herself as her mother as owners which was disputed by Manohar at various stages. After the death of Padmavati, she had left her property in the name of her sons. Thus, Dattatraya filed a suit for partition, separate possession and mesne profit against forcible possession by Kalindi. 

Issue:

Whether Laxman’s sons (Gangadhar, Dattatraya and Manohar) who were born prior to the date of adoption are entitled to the share in the property in dispute according to Hindu Succession Act, 1956?

Rules/Statues:

In the present case, the following provisions are involved:

Definitions:

3(a) agnates: one person is said to be an agnate of another if the two are related by blood or adoption wholly through males;

3(c) cognates: one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males;

Section 4 of the Hindu Succession Act, 1956:

Overriding effect of Act. – Save as otherwise expressly 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;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

Section 8 of the Hindu Succession Act, 1956:

The property of a male Hindu dying intestate shall devolve according to the following provisions:

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if them is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.

Analysis:

The Court rejected the interpretation of Hindu law as laid down in “Kalgavda Tavanappa Patil v. Somappa Tamangavda Patil & Anr”^[1] which stated that the children that are born before the respective adoption will not pass with the adoptee in the adopted family and thereby will not be entitled to any share in the property of the adopted family. It was stated that the situation has evolved over the years and has led to a significant transformation with the enactment of Hindu Succession Act, 1956. The present act nullifies all the text, rule, interpretation of the Hindu law or any custom or usage which was prevalent before the commencement of the Hindu Succession Act^[2], by way of Section 4. 

The Court also observed that it is a settled principle that as succession has opened after the commencement of the said Act, it should be done in conformity with the provisions of the said Act^[3] and not according to Hindu law, custom, usage etc. The Court also stated that Laxman’s sons (Gangadhar, Dattatraya and Manohar) and daughter (Kalindi) are agnates and related by full-blood as per Section 3(a) of the Act, they form Class 1 heirs.

Thus, Supreme Court emphasized that when there are was no restriction specifically denying the rights of natural son to the adoptee father, it concluded that in conformity with the Section 8 of the Hindu Succession Act,1956 the son born before the date of adoption will not be denied his right of inheritance.

Conclusion:

With the evolution over the years, the Court has taken a modern liberal view in delving upon the question of inheritance of the natural son of an adoptee father. It can rightly be said that the Court has made a paradigmatic shift overriding Hindu customs and giving preference to the proposed enactment. With the absence of any specific restriction on denial of rights to the respective sons, it can be concluded that a just and fair interpretation has been made in this regard. Thus, there is no distinction made between the son born to a father before adoption or after adoption. 

^[1] 3 Ind Cas 809

[2] Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613

^[3] Bhanwar Singh v. Puran & Ors (2008) 3 SCC 87

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Jasmine Kaur v. Union of India

Facts:

The petitioner- a minor child, named- Jasmine Kaur, she is one of the twin daughters born on 15-11-2017, to her natural parents Mr Manohar Lal and Mrs Gian Kaur; Mrs Balbir Kaur, 53 years old, is a NRI, OCI card holder, UK citizen and wife of Mr Paramjit Singh, permanent resident in UK, she is also the real sister of Mrs Gian Kaur. The petitioner was adopted by above mentioned Mrs Balbir Kaur and Mr Paramjit Singh from her natural parents, the adoption was done as per Sikh rites and ceremonies at a Gurudwara in Jalandhar, a certificate to that effect was issued, and this adoption was completed under the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as HAMA,1956). A registered adoption deed was executed on 16-11-2018 between the adoptive parents and the natural parents. The previous birth certificate dated 17-08-2016, bearing the name of the natural parents, after adoption a new birth certificate was issued on 29-11-2018 in the name of the adopted parents i.e. Mr Paramjit Singh and Mrs Balbir Kaur. The petitioner had applied for a passport, providing relevant and necessary documents for the same, however the Passport Authority refused her passport on the ground that a NOC from Central Adoption Resource Authority (hereinafter referred to as CARA) or photocopy from Recognized Indian Placement Agency (RIPA) was required and had not been submitted by the petitioner. The case was filed seeking direction for the dismissal of the requirement of NOC by the Passport Authority. 

Issues:

1. Whether a direct adoption made between relatives under the Hindu Adoption and Maintenance Act, 1956 is valid; do that facts of the present case fall under the Juvenile Justice Act, 2015 (hereinafter referred to as J.J Act, 2015) or can adoption in the present case only be under the Juvenile Justice Act. 
2. If NOC from CARA as mandated under section 60 of the Juvenile Justice Act required for direct inter-relative adoptions.
3. Does the Passport Authority have the authority to refuse to issue a passport beyond the statutory provisions of section 6 of the Passports Act, 1967?

Legal Provisions:

1. Hindu Adoption and Maintenance Act, 1956, sections- 2, 5 and 15.^[i]
2. Juvenile Justice (Care and Protection) Act, 2015, section 56(3) and section 60.^[ii]
3. Passports Act, 1967, Section 6.^[iii]

Petitioner Contentions:

The counsel for the petitioner argued that the petitioner was being denied a passport only on the ground of not submitting a NOC from CARA as mandated under the J.J Act, 2015. It was contended that the petitioner was adopted under a registered adoption deed, duly executed under the provisions of HAMA, 1956; and since the provisions of the J.J Act, 2015 are not applicable to the adoptions made under HAMA,1956 and so the requirement of NOC from CARA will not apply to the petitioner.

Respondent Contention:

The respondent contended that even though the provisions of the J.J Act, 2015 are not applicable to adoptions made under the HAMA, 1956, it is mandatory for the adoption to be ratified by CARA. It also stated that the present case is of inter-country adoption as the adoptive parents are citizens of another country, the adoption will fall under the provisions of section 56(4) the J.J Act, 2015 and will thus; require NOC and registration from the concerned authority. 

Observations made by the Court:

The case was heard by Justice Nirmaljit Kaur, of the Punjab and Haryana High Court. Mr Anil Malhotra, Advocate, was appointed as amicus curie by the court to research if the provisions under sections 56(4) and 60 of the J.J Act, 2015 will apply to the present case by virtue of it being an inter-country adoption. It was clarified that the J.J Act was applicable to a limited class of children who are in conflict with law, orphaned, surrendered or abandoned by their parents. In this case, since the biological mother is the real sister of the adopted mother, the adoption does not fall under the J.J Act, 2015. The amicus curie pointed out that sections 56(4) and 60 of the J.J Act, 2015 pertaining to inter-country adoption have to be read in conjunction with section 56(3) of the same act which states that adoptions under HAMA, 1956 will not come under purview of the J.J Act, 2015. Once an adoption is applied for and registered under the HAMA, 1956, it cannot be challenged saying that the same should have been done under the J.J Act, 2015; section 15 of HAMA, 1956 clearly states that the adoption of a minor child is irreversible and cannot be revoked, until it is disproved on valid grounds by a court of law. It was also clarified that even if the adopted parents are British citizens, their religion (Sikh, in this case) does not change, thus maintaining their right to adopt under HAMA, 1956. The court cited the Supreme Court case of Lakshmi Kant Pandey v. Union of India (1984) and Anokha (Smt.) v. State of Rajasthan and others (2004), where it was clarified that the Juvenile Justice Act was not concerned with adoption of children by their biological parents, it was stated that biological parents have are capable of making their decision regarding the same; the act seeks to protect those children who have been and orphaned or abandoned and to regulate their adoption. The act does not seek to interfere with the rights of biological parents in giving their children in adoption to relatives (living in or outside the country), individuals of foreign origin, etc. on the issue of the Passport authority denying passport to the petitioner for failure to submit NOC from CARA, the court stated that since the adoption was duly registered under the HAMA, 1956, the respondents cannot question the validity of the adoption on the ground of not having a NOC from CARA. The provisions of Passport Manual, 2016 were brought to the notice of the court that required NOC from CARA, and court order on adoption, along with other requisite documents for issuance of a passport for inter-country adoption, the court asked the adopted parents to obtain the NOC for avoiding further difficulty in their transition from one country to another. 

Judgement:

The court directed CARA to issue a NOC to the adoptive parents of the petitioner within two weeks. It directed the Ministry of External Affairs/ Regional Passport Office to upon receiving the NOC from CARA, to immediately issue a passport within two weeks so that the parents can take their child to UK.

The court expressed that the Juvenile Justice (Care and Protection of Children), Act, (2000) and now 2015 was framed to bring into legislation India’s commitment to the United Nations Convention on Rights of Child and other international protocols and guidelines that seek the protection and empowerment of children in conflict with law, abandoned, surrendered or orphaned; the law seeks to protect these children from being trafficked and other anti-social elements in the society. The provisions of the act are stringent to protect the rights of these children; and it does not seek to override an individual’s right to adopt as per their personal law if they choose to do so.

Resources:

^[i] https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf

^[ii] http://cara.nic.in/PDF/JJ%20act%202015.pdf

^[iii] https://portal2.passportindia.gov.in/AppOnlineProject/pdf/passports_act.pdf

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Brijendra Singh Vs State Of Madhya Pradesh

FACTS:

The fact of this case is a Hindu wife who is not divorced but who is leading her life like a divorced woman wants to adopt a boy child to look after her till her life. She wished to adopt the child because she is alone till now from the date of her marriage so for her protection she wishes to adopt a child. So she filed a petition in the supreme court for the validity of the adoption. The wife because of her physical deformity lived separately from her husband and too far a very long period right from the marriage date. Hence she adopted a son. 

ISSUES:

Whether she is capable to take in adoption

LEGAL PROVISION:

Section 8 of the Hindu Adoption and Maintenance Act, 1956.

PETITIONER CONTENTION:

The petitioner contended that she has the right to take in adoption and also she is of sound mind to be capable of taking in adoption. And also she stated that she is alone in her house and no one is there to look after her so for her protection she wishes to take in adoption. 

RESPONDENT CONTENTION;

The respondent contended that she doesn’t have the right to take in adoption as she is not a legally divorced wife till she remains as a legally wedded wife in the eyes of law. Section 8 clearly states that a divorced person has only can take in adoption hence the adoption is not valid

OBSERVATION MADE BY THE COURT:

The court observed all the contention of the petitioner and the respondent and held that there is conceptual and contextual difference between a divorced person and one who is leading a life like a divorced woman both can not be equated and they been as a husband and wife in the eye of law because they did not get their divorce and there is no dissolution of marriage they just living separately.

JUDGMENT:    

The court after observation held that she is not capable to take in adoption and hence her adoption is invalid. As section 8 of the Hindu Adoption and Maintenance Act clearly states that only a divorced person has the right to take in adoption in our case is not so.

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