Case Note & Summary
The appellant, Hanmant Laxman Salunke (since deceased, represented by his heirs), filed a second appeal challenging the concurrent findings of the trial court and first appellate court which upheld the adoption of the respondent, Shrirang Narayan Kanse, by Smt. Parvatibai. The appellant was the son of Laxman Salunke and brother of Shankar Salunke, who was married to Parvatibai. The adoption allegedly took place on 2-11-1988. The appellant contended that the adoption was invalid because the respondent was married and above 15 years of age at the time of adoption, and Smt. Parvatibai was less than 21 years older than the respondent, violating Sections 10(iii), 10(iv), 11(iv), and 11(vi) of the Hindu Adoption and Maintenance Act, 1956. The trial court and first appellate court had upheld the adoption based on custom or usage. The High Court framed substantial questions of law regarding the non-compliance with the Act and the overriding effect of Section 4. The court analyzed the provisions and found that the adoption did not meet the mandatory requirements: the respondent was married and over 15 years old, and the age difference between the adoptive mother and the adoptee was less than 21 years. The court held that the custom or usage cannot override the statutory provisions. Consequently, the second appeal was allowed, the judgments of the lower courts were set aside, and the adoption was declared invalid.
Headnote
A) Hindu Law - Adoption - Validity - Sections 10, 11, Hindu Adoption and Maintenance Act, 1956 - The adoption of a married person who had completed 15 years of age and where the adoptive mother was less than 21 years older than the adoptee is invalid - The court held that the mandatory conditions under Sections 10(iii), 10(iv), and 11(iv) were not satisfied, and the custom or usage cannot override the Act (Paras 1-4).
Issue of Consideration
Whether the adoption of the respondent by Smt. Parvatibai on 2-11-1988 was valid under the Hindu Adoption and Maintenance Act, 1956, given non-compliance with Sections 10(iii), 10(iv), 11(iv), and 11(vi).
Final Decision
Second appeal allowed. The judgments and decrees of the trial court and the first appellate court are set aside. The adoption of the respondent by Smt. Parvatibai is declared invalid.
Law Points
- Adoption invalid if adoptee is married or above 15 years
- age gap less than 21 years
- overriding effect of Act over custom
Case Details
Second Appeal No.380 of 1996
Mr. Vinod Y. Jadhav i/b. Mr. M.V. Sali for appellant, Mr. Uday Warunjikar for respondent
Shri Hanmant Laxman Salunke, since deceased by his heirs: Smt. Alka Hanmant Salunke, Shri Prakash Hanmant Salunke, Mrs. Pushpalata Anandrao More, Mrs. Asha Shashikant Gholap, Mrs. Usha Laxman Bhosale, Mrs. Vandana Dashrath Gholap, Mrs. Bharati Ravindra Nikam, Mrs. Kusum Pandurang Potekar
Shri Shrirang Narayan Kanse
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Nature of Litigation
Second appeal against concurrent findings upholding adoption
Remedy Sought
Declaration that adoption of respondent by Smt. Parvatibai is invalid
Filing Reason
Non-compliance with mandatory provisions of Hindu Adoption and Maintenance Act, 1956
Previous Decisions
Trial court and first appellate court upheld the adoption based on custom or usage
Issues
Whether the adoption of the respondent by Smt. Parvatibai on 2-11-1988 was valid under the Hindu Adoption and Maintenance Act, 1956?
Whether the custom or usage can override the statutory provisions of the Act?
Submissions/Arguments
Appellant argued that the adoption was invalid because the respondent was married and above 15 years of age at the time of adoption, and the adoptive mother was less than 21 years older than the adoptee, violating Sections 10(iii), 10(iv), 11(iv), and 11(vi) of the Act.
Respondent argued that the adoption was valid based on custom or usage prevailing prior to the Act.
Ratio Decidendi
The adoption of a married person who has completed 15 years of age and where the adoptive mother is less than 21 years older than the adoptee is invalid under Sections 10(iii), 10(iv), and 11(iv) of the Hindu Adoption and Maintenance Act, 1956. Section 4 of the Act overrides any custom or usage to the contrary.
Judgment Excerpts
Admittedly, the Respondent was married at the time of adoption and he had also completed the age of 15 years at that time.
Smt.Parvatibai, who is alleged to have taken the Respondent in adoption is less than 21 years older than the person to be adopted and this provision is admittedly not saved by any customs or usage.
Procedural History
The appellant filed a suit challenging the adoption, which was dismissed by the trial court. The first appeal was also dismissed. Hence, the appellant filed the present second appeal.
Acts & Sections
- Hindu Adoption and Maintenance Act, 1956: 4, 5, 10, 11
