M. Vanaja vs M. Sarla Devi

Background:

The Appellant had filed a civil suit for a declaration that she was the adopted daughter of the respondent and Late Narasimhulu Naidu. She sought a partition of the suit schedule property. The suit was dismissed by the High Court of Andhra Pradesh at Hyderabad.
It was claimed in the plaint that both the natural parents and the Appellant died when she was young and the appellant pleaded in the suit that she was brought up as the daughter of the Respondent’ “ M. Sarla Devi and her husband Late Narasimhulu Naidu. In the government records like ration card, etc., the Appellant was mentioned as the daughter of the original Respondent and her husband.
Narasimhulu Naidu worked as a Lift Operator in the Andhra Pradesh State Electricity Board (APSEB) and in his service record, the Appellant is referred to as his daughter. The Appellant has been nominated in the application for a pension of Narasimhulu Naidu. Narasimhulu Naidu was the absolute owner of a building situated at Srinivas Nagar East, Gayatri Nagar, Ameerpet, Hyderabad. He also purchased certain other properties. Narasimhulu Naidu supplied textile materials and clothes to the employees of the APSEB and the Appellant was looking after the business. Narasimhulu Naidu died intestate on 19.08.2003. According to the Appellant, she along with the Respondent succeeded the entire estate of Narasimhulu Naidu and that she was entitled to a half share of his properties. It was submitted that due to the ill-advice of relatives, the original Defendant-M. Sarla Devi turned against the Appellant and was attempting to alienate the properties. After the negotiation for an amicable settlement failed, the Appellant was constrained to file a suit for a declaration that she is the adopted daughter of the original Respondent and Narasimhulu Naidu, and for the partition of the properties belonging to Narasimhulu Naidu.
The original Respondent filed a written statement in which it was stated that the Appellant was the daughter of her younger sister Manjula. As the Appellants biological parents died when she was young, the Respondent and her husband brought her up. They ensured that she had a good education, but the Appellant was never adopted by the Respondent and her husband. As such, it was contended by the Respondent that the Appellant does not have any right in the properties belonging to the Defendant’s husband.
The principal issues that were framed by the City Civil Court relating to the relief of declaration that the Appellant was the daughter of the Respondent and deceased Narasimhulu Naidu and her right for a partition of the suit scheduled properties were answered in favor of the Defendant. Relying upon Sections 7 and 11 of Hindu Adoptions and Maintenance Act 1956 the trial court held that the Appellant could not prove the ceremony of adoption. The High Court re-appreciated the evidence on record and held that except the statement of the Appellant that she was adopted by the Respondent and (Late)Narasimhulu Naidu, there is no other evidence to show that the actual adoption took place in accordance with the procedure prescribed in the Act of 1956. The evidence that was adduced on behalf of the Appellant was brushed aside by the High Court which held that the Appellant cannot succeed unless she proves the adoption took place following the provisions of the Act of 1956.
Aggrieved by the judgment; the Appellant filed the said appeal in the Apex Court.

Appellants Contention:

The Appellant submitted that there was overwhelming evidence brought on record to show that the Appellant was treated as the daughter Narasimhulu Naidu and the Respondent’s husband for all practical purposes. The School and College records were relied upon, apart from the service record of Narasimhulu Naidu in support of his submission. The appellant stated that it was not possible for the Appellant to prove the manner in which the adoption took place as she was young at that time. The appellant relied upon the judgment of this Court in L. Debi Prasad (Dead) by Lrs. v. Smt. Tribeni Devi & Ors. to argue that the subsequent events can be considered for the purpose of proving adoption.

Respondents Contention:

The Respondent urged that the mandatory requirement of proving the factum of adoption under Sections 7 and 11 of the Act of 1956 had not been complied with by the Appellant. The respondent argued that there was no pleading in the plaint regarding the particulars regarding the ceremony of giving and taking over and that any amount of evidence without the actual adoption being proved could not assist the Appellant in getting relief. The respondent also relied upon the evidence of the grandmother of the Appellant, who also supported the case of the Respondent and deposed in Court that the Appellant was never adopted.

Courts Observations:

The court remarked that the undisputed facts of the case were that the Appellant was the daughter of the original Defendant’s sister. As the Appellant was young, she was brought by her grandmother and given to the Respondent and her husband to be taken care of. The Appellant was brought up by the Respondent and her husband. The court said that the School and College records and other documents that were filed in Court by the Appellant showed that the Respondent and her husband were shown as the parents of the Appellant and that eventually, the Appellant married and started living separately. The court observed that after the death of Narasimhulu Naidu, the Respondent was residing in the suit schedule property and was in the enjoyment of the properties of Narasimhulu Naidu and that the request made by the Appellant for a partition of the properties was turned down by the Respondent leading to the filing of the Civil Suit.
The court remarked that the only points that arose for the court’s consideration are whether the Appellant had proved that she had been adopted by the Respondent and Respondent’s husband, whether she was entitled to a declaration that she was the daughter of the Respondent and Narasimhulu Naidu and whether the Appellant was entitled to partition of the properties belonging to Narasimhulu Naidu.
The court referred to Section 6 of the Act of 1956 which prescribes the prerequisites for a valid adoption and Section 7 which provides that the male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption and that the consent of his wife has been made mandatory by the proviso to Section 7.
The court also referred to Section 9 which deals with persons who are capable of giving a child in adoption. The court mentioned certain other conditions for a valid adoption that are stipulated in Section 11 of the Act of 1956.
One such condition was 11 (6) which is as under: -‘ 11. Other conditions for a valid adoption.
(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 his birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption:
Provided that the performance of data shall not be essential to the validity of adoption’
The court said that a plain reading of the above provisions made it clear that compliance with the conditions in Chapter I of the Act of 1956 was mandatory for an adoption to be treated as valid. The court remarked that there was no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act and that the Respondent who was the adoptive mother had categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. The court said that even the grandmother of the Appellant deposed that the Appellant was given to the Respondent and her husband to be brought up and that she also stated in her evidence that the Appellant was not adopted by the Respondent and her husband. Therefore, the court said that the Appellant had failed to prove that she had been adopted by the Respondent and her husband.

Judgment:

In view of the aforementioned facts and circumstances, the court said that it found no error in the judgment of the High Court and thus dismissed the Appeal.

The post Proof of Adoption under the Hindu Adoptions and Maintenance Act 1956 appeared first on LexForti .

Abhilasha Vs Parkash & Ors (2020)

Abstract

On 15th September 2020, the Hon’ble Supreme court held that an unmarried major daughter can claim maintenance from her father. The scope of applicability of maintenance under Sec 125 of Code of Criminal Procedure, 1974 was determined by this landmark case. This appeal challenged the order of the High Court of Punjab and Haryana as the court dismissed the application under Sec 482 Cr.Pc filed by the appellant regarding setting aside the order passed by the Judicial Magistrate First Class and Additional Sessions Judge, Rewari.

Facts of the case

The respondent in the appeal, mother of the appellant on behalf of her and on behalf of her daughter and two sons filed a maintenance suit under Sec.125 of Cr.P.C against her husband. The Judicial Magistrate First Class dismissed the application stating that the maintenance will be granted till the appellant attains the majority. Aggrieved by the decision of magistrate court the appellants filed a criminal revision petition in Additional Sessions Court which was dismissed, stating that Additional Sessions Judge held that as per provision of Section 125 Cr.P.C, the children, who had attained majority are entitled to maintenance if, because of any physical or mental abnormality or injury, they are unable to maintain themselves. Later again an appeal was filed by in High court under Sec 482 Cr.Pc and the court upheld the decision made by the Additional Sessions Judge Court. This Appeal was filed to challenge the decision taken by the High Court.

Rationale of Judgement

The Supreme Court decided the case on the following observation:
• The claim of the maintenance was filed when the appellant was a minor. The application of maintenance was allowed by the other Court till she attained the majority. After that, the contention was rejected stating that the appellant was not physically or mentally challenged. The counsel of the appellant relied on Sec 20 of the Hindu Adoption and Maintenance Act 1956.
• Section 20 (3) of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to the enactment of Act, 1956 always obliged a Hindu to maintain an unmarried daughter, who is unable to
maintain herself.
• The application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major.
• The Supreme Court tried to examine the scope and applicability of Sec 125 of Cr.P.C concerning many cases. It discussed whether personal laws will prevail against the concept of maintenance for an unmarried major woman in procedural law.
• The Court held Family Court will in future have the jurisdiction to under both provisions i.e. Sec.125 for maintenance in the Criminal Procedural Code and Sec.20 of Hindu Adoption and Maintenance Act.

Judgment

The maintenance interpreted under Section 20 is a broader concept whereas maintenance under Section 125 Cr.P.C is a narrow concept because it just provides immediate relief to the applicant. The Court thus held that a daughter who is an unmarried major and who doesn’t have the capacity to maintain herself can claim maintenance from her father. For enforcement of this right, the application or suit has to be under Section 20 of the Hindu Adoption and Maintenance Act 1956.
The court also held that the Judicial Magistrate First Class and the Additional Sessions have made no infirmity in deciding the case as it was not in its jurisdiction

Conclusion

The decision taken by the Court has given the liberty to a daughter to claim maintenance from her father. It should be observed that the Supreme Court has extended the jurisdiction of Family court as it can decide on the case where Sec 125 and Sec 20 of different Acts are compiled to seek justice.

The post Maintenance for Unmarried Major Daughters appeared first on LexForti .

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.

The post Divorcee’s power to adopt a child appeared first on LexForti .