Case Note & Summary
The petitioners, Smt. Sharada Walagad (petitioner No.1) and Kumar Shrishail Shankareppa (petitioner No.2), filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 16/06/2023 passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamkhandi, in R.P. No. 5001/2023. The trial court had dismissed their petition filed under Sections 8 and 9 of the Hindu Adoption and Maintenance Act, 1956 seeking permission for petitioner No.1 to act as guardian of petitioner No.2 and to adopt him. Petitioner No.1, a 69-year-old retired government servant and widow, claimed that she had no children and that petitioner No.2, a 19-year-old student and distant relative, had lost his parents in 2005 and 2008 respectively. The petitioners belonged to the SC community and asserted a custom allowing adoption of children above 15 years. They examined petitioner No.1 and produced four documents, including a paper publication. The trial court dismissed the petition on the ground that no cogent evidence of custom was placed on record. The High Court examined the evidence and found that the trial court had erred in not considering the oral testimony of petitioner No.1 and the documents, which sufficiently proved the custom. The court held that Section 10 of the Act prohibits adoption of a child above 15 years unless there is a custom or usage applicable to the parties, and that the petitioners had established such a custom. Consequently, the impugned order was quashed and the petition was allowed, permitting petitioner No.1 to adopt petitioner No.2.
Headnote
A) Hindu Law - Adoption - Customary Adoption - Section 10 of Hindu Adoption and Maintenance Act, 1956 - The petitioners sought permission to adopt a child aged 19 years, claiming a custom in their SC community allowing adoption of children above 15 years. The trial court dismissed the petition for lack of evidence of custom. The High Court held that the trial court erred in not considering the evidence adduced, including oral testimony and documents, and that the custom was sufficiently proved. The impugned order was set aside and the petition was allowed. (Paras 1-10) B) Hindu Law - Adoption - Age of Adoptee - Section 10 of Hindu Adoption and Maintenance Act, 1956 - Section 10 prohibits adoption of a child above 15 years unless there is a custom or usage applicable to the parties. The High Court reiterated that the prohibition is not absolute and custom can override the age limit. The court found that the petitioners had established a custom in their community. (Paras 5-10)
Issue of Consideration
Whether the trial court was justified in dismissing the petition for adoption of a child aged 19 years on the ground that no cogent evidence of custom was placed on record?
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 16/06/2023 passed by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamkhandi, in R.P. No. 5001/2023, and allowed the petition filed under Sections 8 and 9 of the Hindu Adoption and Maintenance Act, 1956, permitting petitioner No.1 to adopt petitioner No.2.
Law Points
- Adoption of child above 15 years is permissible if there is a custom or usage applicable to the parties
- Custom must be proved by cogent evidence
- Section 10 of Hindu Adoption and Maintenance Act
- 1956
- Section 8 and 9 of Hindu Adoption and Maintenance Act
