Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Hindu Adoption and Maintenance Act 1956: A B s. 7 proviso - Consent of wife |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Disposed Off |
Headnote | Hindu Adoption and Maintenance Act, 1956:s. 7, proviso - Consent of wife is a condition precedent for adoption by a male Hindu - Consent should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her- Presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent- Wife's silence or lack of protest on her part also would not give rise to an inference that she had consented to the adoption - In .the instant case, Ghisalal claimed right in properties of Gopalji on the ground that Gopalji had adopted him with the consent of his wife Dhapubai - All the courts below held that the consent of Dhapubai could be presume because she was present in the ceremonies of adoption -High Court went a step further and observed that failure of Dhaplibai to challenge the adoption deed was a strong circumstance to show that she had consented to the adoption of Ghisalal by her husband - Courts below completely ignored that presence of Dhapubai in the ceremonies of adoption was only as a mute spectator and not as an active participant -Neither Ghisalal nor any of the witnesses examined by him stated that before taking Ghisalal in adoption, Gopalji had consulted Dhapubai or taken her in confidence and that the latter had given her consent or agreed to the adoption or that she had taken prominent part in the adoption ceremonies -All of them made a parrot like statement that Dhapubai was sitting with other women below the chabutra - No evidence was produced by Ghisalal to prove that Dhapubai was a signatory to the adoption deed or was present at the time of its execution and/or registration - Therefore, the contents of adoption deed could not be made basis for assuming that Dhapubai was a party to the adoption - Testimony of Kishanlal, the natural father of Ghisalal was most crucial and yet he was not examined - The concurrent finding recorded by the courts below that Gopalji had adopted Ghisalal with the consent of Dhapubai was perverse inasmuch as the same was based on unfounded assumptions and pure conjectures. Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid - . Therefore, the suit filed by Ghisalal for partition of properties belonging to Gopalji was not maintainable. s. 7, proviso - Interpretation of the term 'consent' used in the proviso - Held: The term 'consent used in the proviso to s. 7 and the explanation appended thereto has not been defined in the Act - Therefore, while interpreting the provision, the court has to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that isdone, it would be reasonable to say that the consent of wife envisaged in the proviso to s. 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her - Interpretation of statutes - Purposive interpretationHindu law: Old. and present law relating to adoption -Comparison between - Hindu Adoption and Maintenance Act, |
Judge | Hon'ble Mr. Justice G.S. Singhvi |
Neutral Citation | 2011 INSC 37 |
Petitioner | Ghisalal |
Respondent | Dhapubai (dead) By Lrs. And Ors. |
SCR | [2011] 1 S.C.R. 651 |
Judgement Date | 2011-01-12 |
Case Number | 6373-6374 |
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