SC ruling on adoption by Hindu widows

By T. Padmanabha Rao

NEW DELHI, MARCH 29. The Supreme Court has ruled that when there are two co-widows left by a deceased Hindu male with no progeny of his own, the exercise of power by a senior widow (in a given case) to take a son or daughter `in adoption' under the Hindu Adoptions and Maintenance Act, 1956 is not conditioned upon the consent of the junior widow. Delivering the judgment, Mr. Justice Doraiswamy Raju found ``no error of law or infirmity of any kind in the ultimate decision of the Karnataka High Court (HC) for any interference at (apex court's) hands''.

The Bench which included Mr. Justice D.P. Mohapatra dismissed the appeal from a junior widow and an adopted daughter of junior widow of a deceased Hindu male (appellants) against a verdict of the HC modifying to a limited extent the judgment and decree passed by the trial court in favour of the adopted son of the senior widow in a ``property dispute'' between the parties.

``To subject the exercise of power by the senior widow to adopt, conditioned upon the consent of the junior widow where a Hindu male died leaving behind two widows with no progeny of his own, would render the exercise of power more cumbersome and paradoxical, leaving at times, such exercise of power to adopt only next to impossibility,'' the Bench noted.

Having regard to section 12(c) of the Act, which ensures that the adopted child shall not divest any person of any estate which vested in him or her before the adoption, and consequent protection of the rights vested with the junior widow in the property left behind by the deceased husband and the real and ultimate object of adoption by the widow, no injustice could be said to be caused to the junior widow on account of the legislature not making it obligatory for the senior widow to obtain the consent of the junior widow to adopt a child which would be deemed to be not only for her but also to the deceased husband as envisaged in section 12 of the act,'' the Bench pointed out. Section 12 deals with ``effects of adoption''.

When the Parliament resolved to provide for and insist upon the obtaining of the consent of the wife or if there are more than one living wife, the consent of all of them - unless they or any one of them suffered any of the enumerated (legal) infirmities rendering such consent unnecessary - ``the conscious and positive as well as deliberate omission to provide for a female Hindu seeking or obtaining any such consent from a co or junior widow is a definite pointer to indicate that the legislative intent and determination,'' the Bench observed.

``This was not to impose any such clog on the power specifically conferred upon the female Hindu - may be for the obvious reason - that under the scheme of the Act, the Hindu female has been enabled and empowered to adopt not only to herself but also to her husband, and also in tune with the changed and modern concept of equality of women and their capabilities to decide independently statutorily recognised, and the very reason for insisting upon such an authority or consent from the husband or the `sapindas' under the old Hindu Law having lost its basis and thereby ceased to be of any relevance or valid purpose whatsoever,'' the Bench pointed out.

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