In female widow. Within the understanding and purview

In the entire judgement, the first part to be
addressed is the one where the proof of such a custom, where a male child can be
adopted from outside the family, is valid or not. In this regard, there was
nothing significant to prove that a male child from outside the family cannot
be adopted by a female widow. Within the understanding and purview of sections
8, 9, 11 & 16 of The Hindu Adoption and Maintenance Act, with major
importance to the scope of definition the mere evidence that such an event has
occurred only four times in 375 years was rightly held to be insufficient to
prove that it was not a custom by the court. It was held that the existence of
a custom cannot be proved by logic or analogy. The court held that Special
Customs that prevail in a family or a particular community, etc. Require strict
proof and the respondents have failed to prove the same. Hence, the appellate
courts could not have discarded the existence and legal validity of the
adoption deed on the basis of a merely “alleged” custom. And this was the
reasoning given by the courts after considering all the other factors involved,
to justify the upholding the validity of the adoption deed.

Further, to strengthen the justification, Section 3
of The Hindu Adoption and Maintenance Act was read with Section 10, the meaning
and correct definition of a custom as clarified, with more importance given to
the working and understanding of a general customs and special customs. The
case of Bhimashya & Ors. v. Smt. Janabi Janawwa, (2006) 13 SCC 627 was
relied on, where it was held –

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“A custom is
a particular rule which has existed either actually or presumptively from time
immemorial, and has obtained the force of law in a particular locality,
although contrary to or not consistent with the general common law of the
realm……it must be certain in respect of its nature generally as well as in
respect of the locality where it is alleged to obtain and the persons whom it
is alleged to affect.

Custom is
authoritative, it stands in the place of law, and regulates the conduct of men
in the most important concerns of life; fashion is arbitrary and capricious, it
decides in matters of trifling import; manners are rational, they are the
expressions of moral feelings. Customs have more force in a simple
state of society. Both practice and custom are general or particular
but the former is absolute, the latter relative; a practice may be adopted by a
number of persons without reference to each other; but a custom is
always followed either by limitation or prescription; the practice of gaming
has always been followed by the vicious part of society, but it is to be hoped
for the honour of man that it will never become a custom.”1

It was established that a statutory law cannot be
modified by a custom unless the statute itself saves the custom. It was also
explained how there is a strict construction that exists, which is in contrast,
in derogation of the general rule. However, a custom of which a legal judicial
notice is taken is not needed to be proved.

Moving on, Sections 16 and 8 were taken up to
explain and justify that just the mere presumption of a registered adoption
deed is valid in the eyes of law. The challenge thereto was on the technical
ground that the natural parents of Raghunath, the 8 year old child adopted by
Laxmibai,  did not put their signatures
as parties to the adoption, but as did sign as mere witnesses. The court held
that there being substantial compliance with requirements of Section 16 of the
Act, i.e. there being an (elaborate, in this case) adoption ceremony has taken
place in which the natural parents of the child in adoption were also
participating in the presence of large number of witnesses giving the child in
adoption to Smt. Laxmibai. And after the ceremony, an adoption deed also being legally
registered with seven attesting witnesses, regarding which the natural parents also
deposed in court establishing their clear and affirmative willingness in giving
their son in adoption, was held to be not invalid. Hence, taking all these
factors into consideration, the court upheld the validity of Section 16, which
resulted in the fact that the presumption of a registered adoption deed can be
validly invoked in the present case. To this, the respondent/defendants who
challenged the entire adoption did not rebut regarding the presumption that adoption.
The natural parents in return, had agreed and had willingly taken part in the
adoption ceremony. The court also established that the mere technicalities of
the fact that the natural parents were involved and they signed as witnesses in
the adoption deed and not as executing parties cannot be held as a valid reason
to defeat purpose of adoption. Further, it was held that it was not a case
where there were no witnesses except the attesting natural parents; hence, the
court upheld the validity of the adoption deed. These lines from a precedent
were relied on to reach this logical conclusion:

“It was held that in
view of Section 16, wherever any document registered under any law is
produced before any court purporting to record an adoption made, and the same
is signed by the persons mentioned therein, the court shall presume that the
said adoption has been made in compliance with the provisions of the Act, until
and unless such presumption is disproved.”2

In another case,
the Court relied on another precedent in which it was held that:

“The giving and
receiving are absolutely necessary to the validity of an adoption. All that is
required is that the natural father be asked by the adoptive parent to give his
son in adoption, and that the boy be handed over and taken for this purpose.”3

Additionally, it was also established that the entire
onus and a heavy burden of proof and the manner of appreciation of evidence is
initially placed on propounder to prove the adoption. Once a valid registered
adoption deed is presented before the court, the same onus shifts to the party which
challenges the validity of the adoption. However, the Court still does have to
take note of all of the various other circumstances involved in the case. Other
cases that were referred to included the cases of:

 Delta International Limited v. Shyam Sundar
Ganeriwalla & Anr., AIR 1999 SC 2607; Kumar Harish Chandra Singh Deo &
Anr. v. Bansidhar Mohanty & Ors., AIR 1965 SC 1738; and Vodafone
International Holdings B.V v. Union of India & Anr., (2012) 6 SCC 613.

Another issue that was resolved was that relation to
the adoptions done by widowers. It was established that a standard of proof is required.
The fact that the adoptive mother’s deceased husband’s deceased brother’s wife,
Gopikabai, not being examined during the entire proceeding of the case, was questioned.
However, the adoption itself was sufficiently proved by various other evidences,
even though Gopikabai was not examined. However, the Court had held that the non-examination
of Gopikabai cannot be treated as a suspicious circumstance in this case. This was
backed by the reasoning that it is quality of the evidence and not the quantity
of evidence that is provided in the Court of law that is relevant for any case.
Further it was held that if any party challenges the statements of any witness
it can be impeached by following the procedure laid down under Section 138 of The
Evidence Act, by cross-examining such witness.

Next in question was the photographic evidence of the
adoption ceremony that was presented in the Court. This particular evidence was
produced by the photographer who was appointed by Laxmibai herself, to cover the
entire adoption ceremony. The question raised was that when the source of the evidence
is credible and can be relied on to prove substantial compliances so as to
raise presumption, with respect to Section 16 of the Act. The photographer was
thoroughly cross-examined, and his deposition had been relied on by the trial
courts. However, no expert was examined to discredit his evidence. This had come
into question as there was a slight chance that the pictures that were produced
as evidence could have been morphed. However, the court held that the evidence provided
by the photographer was credible and it cannot be doubted on the mere ground
that another expert photographer was not examined. The appellate court erred in
considering all of the irrelevant evidence/material provided, while most
relevant evidence i.e. the entire adoption ceremony and the adoption deed itself,
were disregarded on basis of mere surmises and conjectures.

1 Bhimashya
& Ors. v. Smt. Janabi Janawwa, (2006) 13 SCC 627

2 Mst. Deu
& Ors. v. Laxmi Narayan & Ors., (1998) 8 SCC 701

3 Debi
Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970 SC 1286


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