Hindu Male Can Adopt His Illegitimate Child Under Hindu Adoptions & Maintenance Act: Allahabad High Court
The Court held that there is no absolute statutory prohibition under the Act against a Hindu male taking in adoption his own illegitimate son.
Justice Arun Kumar, Allahabad High Court
The Allahabad High Court has held that a Hindu male is not, merely by reason of being the biological father of an illegitimate child, prohibited under the Hindu Adoptions and Maintenance Act, 1956, from taking such child in adoption, provided the statutory requirements of a valid adoption were otherwise fulfilled.
The Court noted that the Act contains no such prohibition; in fact, Section 10 of the Act does not exclude an illegitimate child merely on the ground of his illegitimacy.
The Bench of Justice Arun Kumar held, “The first substantial question is accordingly answered as follows: a Hindu male was not, merely by reason of being the biological father of an illegitimate child, prohibited under the Hindu Adoptions and Maintenance Act, 1956 from taking such child in adoption, provided the statutory requirements of a valid adoption were otherwise fulfilled. In the present case, the adoption being of the year 1970, the subsequent U.P. requirement concerning documentary proof of adoptions made on or after 1 January 1977 had no application. On the evidence accepted concurrently by the courts below, the giving and taking of the plaintiff in adoption was proved. The reference by the learned District Judge to Section 9(4) was not the correct statutory basis; nevertheless, the ultimate conclusion that the plaintiff had been validly adopted by Badlu is sustainable on the facts and law applicable to the adoption inquestion."
Senior Advocate Ashish Kumar Singh appeared for the Appellants, while Advocate JP Pandey appeared for the Respondent.
Factual Background
A Second Appeal was filed under Section 100 of the Code of Civil Procedure arising from concurrent judgments whereby the suit instituted by the Plaintiff/Respondent for cancellation of the sale deed has been decreed, by the judgment and decree of the Trial Court, as upheld by the judgment and decree of the Lower Appellate Court.
The dispute arose out of certain agricultural plots. The Plaintiff/Respondent claimed that he was the biological son of one Badlu. It was the case of the Plaintiff/Respondent that Badlu subsequently adopted him as son in 1970.
It was held by the Trial Court that the Plaintiff was the adopted son of Badlu and consequently had the right to maintain the suit, which was upheld by the First Appellate Court.
Contentions of the Parties
It was the case of the Defendants/Appellants that the adoption of an illegitimate child by his natural father was not permissible under the Hindu Adoption and Maintenance Act, 1956, as under the aforesaid Act, the child being given in adoption should have his relationship severed from the family of his natural parents. In this case, the natural father himself adopts his illegitimate son, which runs contrary to the provisions of Section 12 of the Act.
It was also argued that the Sale Deed executed by Badlu in favour of the Appellants was valid and genuine.
On the contrary, the plaintiff alleged that, notwithstanding his status as the adopted son of Badlu, the defendants took advantage of Badlu's condition by taking him away on the pretext of getting him medically treated and thereafter procured a sale deed.
Issues raised by the Court
(i) Whether a man could adopt his own illegitimate son?
(ii) Whether the finding of the two courts below that the sale deed in question was not duly executed for consideration is vitiated in law?
Observations of the Court
The Court refused to accept the argument of the Appellants that the mere fact that Badlu was the natural or putative father of the plaintiff necessarily rendered it legally impossible for him to adopt the plaintiff.
The Court raised another sub-issue, i.e., the competency of a person to give the illegitimate child for adoption. The Lower Court had observed that since the maternity of the plaintiff was not in dispute, his mother could give him in adoption to Badlu. The Court observed that there was no occasion to invoke Section 9(4) of the Act in the present case.
It was held, "The proper question is whether, under the law applicable in 1970, the natural mother of an illegitimate child had capacity to give the child in adoption to the person who desired to take him in adoption. The answer is in the affirmative. The judicial interpretation of Section 9 has recognised the distinction between the natural mother of an illegitimate child and the putative father for the purpose of giving the child in adoption."
The Court added that the incorrect reference to Section 9(4), however, does not by itself render the ultimate finding regarding the adoption unsustainable. It was observed that the question has to be examined on the statutory position applicable to the adoption in question and upon the findings of fact recorded by the courts below.
The Court observed that the mere circumstance that Badlu was the biological father of the plaintiff does not, by itself, create a statutory prohibition against his taking the plaintiff in adoption. The capacity of a person to give a child in adoption and the capacity of another person to take the child in adoption are distinct matters. Section 9 deals with the former, whereas Sections 6 and 7 deal with the capacity and right of the person taking a child in adoption.
The Act contains no express provision which disqualifies a Hindu male from taking in adoption a child who is his biological but illegitimate son, it added.
It was held, "I therefore hold that there was no absolute statutory prohibition under the Hindu Adoptions and Maintenance Act, 1956 against a Hindu male taking in adoption his own illegitimate son. The fact that Badlu was the biological father of the plaintiff does not, by itself, invalidate the adoption. The validity of the adoption has to be tested with reference to the statutory requirements applicable on the date of adoption, including the capacity of the person giving the child, the capacity of the person taking the child and the actual giving and taking with the requisite intention."
Regarding the second issue, the Court observed that the registered nature of the document did not make it immune from challenge, and the courts below were entitled, upon consideration of the evidence and surrounding circumstances, to hold that the transaction was fraudulent and liable to be cancelled.
Accordingly, the Court dismissed the appeal and the judgment and decree passed by the lower court was affirmed.
Cause Title: Budhi Ram and Ors. v. Ram Kesh [Neutral Citation:2026:AHC:184403]
Appearances:
Appellants: Senior Advocate Ashish Kumar Singh, Advocates Jitendra Kumar Srivastava, S.K.Gaur and Sunil Kumar Gaur
Respondent: Advocate JP Pandey