A recent Supreme Court judgment in the case of a disabled woman from Madhya Pradesh highlighted that a married Hindu woman cannot adopt a child.
The Supreme Court, in a recent judgment reported as Brajendra Singh versus State of Madhya Pradesh, 2008(1) SCALE 372, had occasion to engage with the issue of adoption by a female Hindu. Though there is a sizeable section of opinion in favour of a secular adoption law applicable to all communities, at present the only enactment permitting adoption in India is the Hindu Adoption and Maintenance Act, 1956. In addition to Hindus, the Act is applicable to Buddhists, Jains and Sikhs and, by default, to anyone who is not a Muslim, Parsi, Christian or Jew. The case is like a vignette reflecting prevalent social norms and values in the context of the position of a woman in society, intersecting with marriage, patriarchy and adoption by a Hindu woman owning agricultural land.
Mishri Bai was a disabled woman living in Kolinja village in Madhya Pradesh. The norms and customs of the village dictated that a virgin girl had to be married. In accordance with this, Mishri Bai was ‘given’ in marriage to Padam Singh in 1948. However, Padam Singh left Mishri Bai soon after marriage and she went back to living with her parents in the village. Her parents gave her a piece of land measuring 32 acres, out of their agricultural holdings, for her maintenance. In 1970, Mishri Bai adopted Brajendra Singh. Her husband Padam Singh died in 1974.
Following Padam Singh’s death, the sub-divisional officer, Vidisha, served notice on Mishri Bai under the Madhya Pradesh Ceiling on Agricultural Holdings Act, stating that her holding was more than the prescribed limit. In her reply, Mishri Bai contended that Brajendra Singh was her adopted son, that both of them constituted a joint Hindu family, and that they were therefore entitled to retain up to 54 acres of land.
In December 1981, the sub-divisional officer contested her claim of adoption on grounds that the adoptive father’s name had not been recorded in the entries at educational institutions. In 1982, Mishri Bai filed a suit for declaration that Brajendra Singh was her adopted son. In July 1989, she executed a registered will bequeathing all her property to Brajendra Singh. Mishri Bai died in November 1989.
In 1993, the trial court decreed the suit and declared Brajendra Singh to be Mishri Bai’s adopted son. Although State of Madhya Pradesh appealed, the appellate court affirmed the decision and held that Brajendra Singh was Mishri Bai’s adopted son, noting that the factum of adoption was also mentioned in her will. The State then filed a second appeal in the high court. The plea taken by the State was that the adoption was not valid in the absence of Mishri Bai’s husband’s consent. The high court accepted the plea and held that the adoption had no sanctity in law and was not valid. The matter then reached the Supreme Court in an appeal filed by the adopted son, Brajendra Singh.
It was submitted on behalf of the adopted son that the undisputed factual position was that the marriage between Mishri Bai and Padam Singh had never been consummated and that the parties had been living separately almost from the date of their marriage. That the contention that the adoption was invalid had been raised in the trial court. That the trial court had analysed the material and evidence and come to the conclusion that Mishri Bai had ceased to be a married woman and was living like a divorced woman. It was submitted that the high court erroneously proceeded on the assumption that the husband’s consent was necessary. It was argued that the marriage, in fact, was a “sham marriage” that had no substance or reality.
The submission on behalf of the State was that, as per the Act, Mishri Bai did not fall within the enumerated categories of female Hindus who had the capacity to adopt and could not have validly adopted Brajendra Singh.
Under traditional Hindu law, a woman, ordinarily, had no capacity to adopt. In fact, the origin of the custom of adoption among Hindus is intertwined with the role of the son in the performance of rituals to ensure spiritual benefits after death. The offering of pind — oblations of rice and libations of water to the ancestors by male progeny — constitutes an important part of the Hindu religion. A woman, with supposedly no spiritual needs to be satisfied, was not allowed to adopt for herself. Under certain circumstances, a widow could adopt a son to her deceased husband. The adoption was by her and not to her. She was not the adoptive mother in her own right; she was the adoptive mother being the wife of her deceased husband to whom the adoption was made.
The Hindu Adoption and Maintenance Act, enacted in 1956, fundamentally departed from the old law. Section 8 of the Act empowers any female Hindu who is an adult of sound mind, and unmarried, to adopt a child in her own right. However, a married Hindu woman can only adopt if the marriage has been dissolved or if the husband is dead or has renounced the world or has ceased to be a Hindu or has been declared to be of unsound mind. A married Hindu woman cannot adopt a son or daughter to herself, even with the consent of her husband. The section laying down the capacity of a Hindu female to adopt does not include a married woman adopting with the consent of her husband. In contrast, a married man can adopt with the consent of his wife. The requirement of the wife’s consent for adoption by the husband is a departure from the earlier law which did not have any such bar or restriction or condition attached to the right of a Hindu male to adopt a son or a daughter.
Adverting to the Act, the Supreme Court observed that a female Hindu who is married can adopt only if the marriage has been dissolved, ie if she gets a divorce. The court held that there was no dissolution of marriage between Mishri Bai and Padam Singh. It observed that all the evidence showed that husband and wife had been staying separately for a very long time, and that Mishri Bai was living ‘a life like a divorced woman’. The court categorically declared that there was a conceptual and contextual difference between a divorced woman and one who was leading the life of a divorced woman. Mishri Bai may have been living separately since the time of her marriage, but there was no dissolution of marriage or divorce. The judgment held that in the eyes of the law Padam Singh and Mishri Bai continued to be husband and wife at the time of the adoption in 1974. Therefore, under the Act, Mishri Bai did not have the capacity to adopt as her husband had neither renounced the world nor ceased to be a Hindu and was of sound mind and living at the time of the adoption. The court declared that Mishri Bai was not entitled to a declaration in law that Brajendra Singh was her adopted son.
After declaring the law, on a more sympathetic note the judgment observed that there was no dispute that Mishri Bai was a disabled person living separately from her husband and, in fact, had been looked after by Brajendra Singh whom she adopted. It directed that Brajendra Singh could retain the property given to him in Mishri Bai’s will. However, the decision with regard to allotment of land declared to be in excess of the prescribed limit to Brajendra Singh was left to the state government.
