Wife's Silence Cannot Give Rise To An Inference That She Had Consented For Purpose Of Adoption U/S 7 Of Hindu Adoption & Maintenance Act: Allahabad High Court

"The court cannot presume the consent of wife simply because she was present at the time of adoption," a Division Bench comprising of Justices Manoj Misra and Rohit Ranjan Agarwal has ruled.

It held that in order to satisfy the mandate of the proviso to Section 7 of the Act, a party propounding adoption by a Hindu male, who has a living wife, has to adduce evidence to prove that the same was done with the consent of his wife.

"This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption," the Bench said.

[Section 7 states: Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.]

Background

In the case at hand, the Appellant's claim for compassionate appointment in place of his deceased (alleged) adoptive father Rajendra Singh was denied inter alia because the latter had a living wife.

The concerned authority had rejected the adoption deed relied by the Appellant on the ground that it depicted the adoptive father as unmarried, even though he had a living wife named Phoolmati. It noted that without the Phoolmati's consent, the Appellant's adoption could not be said to be a valid one.

A plea against the said order was dismissed by a Single Bench of the High Court following which, the instant appeal was filed.

The Appellant had taken two primary grounds before the Division Bench: (i) by a decree dated 31.08.1997 the marriage of the deceased (alleged) adoptive father Rajendra Singh with his wife Phoolmati stood dissolved; (ii) even if it is assumed that there was no legal divorce, she, by living separate from her husband, had renounced the world therefore her consent was not necessary.

Further, the Appellant had argued that Section 16 of the HAMA raises a presumption as to the validity of adoption on presentation of a deed in that behalf and since there was no serious contest to his adoption by any of the successors of the deceased, he ought to have been provided the benefit of adoption by raising that presumption.

Findings

All the three arguments raised by the Appellant came to be demolished by the Division Bench.

1. With respect to the alleged divorce deed, the Court observed,

"The alleged decree, which has been brought on the record is not a decree of divorce. It only disposes off divorce proceeding in terms of the compromise."

The said compromise recorded that Rajendra Singh and Phoolmati shall continue to remain husband and wife and that the former shall pay Rs. 5000/- to the latter towards litigation expenses.

2. With respect to the argument that Phoolmati had not been in the company of her husband and therefore it could be taken that she had renounced the world and, as such, her consent would not be required- the Court held that the requirement of consent of the wife, under the proviso to section 7 of the 1956 Act, cannot be dispensed with where there is no dissolution of marriage even though the wife might be estranged from her husband and staying separate.

It observed,

"the consent of even an estranged wife for taking in adoption would be required, if the marriage has not been dissolved. No doubt, consent of wife would not be required where the marriage has been dissolved or the wife has completely 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. But, here, it has not been proved that the marriage was dissolved. Rather, the document produced is to the contrary."

Reliance was placed on Brajendra Singh v. State of MP, (2008) 13 SCC 161 where the Apex Court had held, "There is conceptual and contextual difference between a divorced woman and one who is leading life like a divorced woman. Both cannot be equated."

3. With respect to the Appellant's argument vis-à-vis nature of presumption of the adoption deed, the Court made it clear that such presumption is rebuttable.

It noted that in the instant case, the adoption deed on which reliance was placed by the Appellant declared his alleged adoptive father as unmarried whereas, it is established on the record, that he was married and had a wife living on the date of adoption.

In this backdrop the Division Bench concluded,

"Once it was proved that Rajendra Singh had a living wife, the presumption, if any, arising from that deed with regard to the adoption being in accordance with the provisions of the 1956 Act stood demolished because how could it be presumed that the wife had given her consent for her husband to take a son in adoption when even the existence of that wife is not acknowledged.

In fact in the adoption deed Rajendra Singh has been described as unmarried. Thus, when clinching evidence had come on board that the person who allegedly took the appellant in adoption had a living wife, whose existence was denied in the deed, the presumption, whatever available, stood rebutted."

Case Title: Bhanu Pratap Singh v. State of UP

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