Legal Correspondent

Difference between divorcee and deserted woman: court

If husband is not under disqualification, wife cannot adopt even with his consent

Simple issue, but sensitive issues are involved

New Delhi: A woman cannot adopt a son or daughter during the subsistence of her marriage except when her husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, the Supreme Court has held.

“If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband, whereas the husband can adopt with the consent of the wife,” said a Bench consisting of Justices Arijit Pasayat and P. Sathasivam.

It was dealing with the validity of adoption of Brajendra Singh (appellant) by Mishra Bai, a crippled woman, deserted by her husband soon after their marriage. Mishra Bai claimed that he adopted Brajendra Singh and they together had 54 acres of land. Revenue authorities in Madhya Pradesh disbelieved the claim and issued notice saying she was holding agricultural land in excess of the ceiling.

On a suit, the trial court and the first appellate court decreed in her favour, holding that the adoption was valid. On the State’s second appeal, the Madhya Pradesh High Court held that it was not a valid adoption. During the pendency of the case, Mishra Bai died and Brajendra Singh’s appeal is directed against this judgment.

The apex court Bench said: “The present appeal involves a very simple issue but when the background facts are considered, it projects some highly emotional and sensitive aspects of human life.”

Section 8 (c) of the Hindu Adoption and Maintenance Act, 1956 stipulated the conditions of adoption by a woman, viz. a woman who is not married; or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has been declared to be of unsound mind.

“It follows from Section 8 (c) that a Hindu wife cannot adopt a son or daughter to herself even with the consent of her husband because the Section expressly provides for cases in which she can adopt a son or daughter during the lifetime of the husband. She can only make an adoption in the cases indicated in clause (c).”

Writing the judgment, Justice Pasayat said: “Any adoption made by a female Hindu who does not have the requisite capacity to take in adoption or the right to take in adoption is null and void. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e., who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no dissolution of the marriage. All that the evidence led points out is that the husband and the wife were staying separately for a very long period and Mishra Bai was living like a divorced woman.”

The Bench pointed out that there was a conceptual and contextual difference between a divorced woman and one who was leading her life like a divorcee. Both could not be equated. However, considering that the appellant nourished a crippled woman treating her as his own mother, the Bench permitted him to be in possession of the land for six months.