Adoption without wife`s consent is invalid: SC

Last Updated: Wednesday, January 12, 2011 - 22:24

New Delhi: Adoption of a child by the
husband is not valid if the wife does not give her consent to
it even though she might be been present at the ceremony as a
spectator, the Supreme Court has ruled.
The apex court said that to prove a valid adoption,
the claimant has to produce documents of consent given by the
wife otherwise the process becomes invalid as mandated by
Section 7 of the Hindu Adoptions and Maintenance Act, 1956.

"By incorporating the requirement of the wife?s consent
in the proviso to Section 7 and by conferring independent
right upon a female Hindu to adopt a child, Parliament has
tried to achieve one of the facets of the goal of equality
enshrined in the Preamble and reflected in Article 14 read
with Article 15 of the Constitution.

"This can be done either by producing document
evidencing her consent in writing or by leading evidence to
show that the 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 presence of the wife as a spectator in the
assembly of people who gather at the place where the
ceremonies of adoption are performed cannot be treated as her
consent. "In other words, the court cannot presume the consent
of the wife simply because she was present at the time of
adoption," the apex court said.
A bench of justices G S Singhvi and Asok Kumar Ganguly
passed the judgement while dismissing the appeal of Ghisalal
from Madhya Pradesh who claimed to be the adopted son of
Gopalji and Dhapubai.

The trial court and the Madhya Pradesh High Court had
ruled that he was an adopted son as Dhapubai was present at
the ceremony. It had ordered division of property to the
adopted son also on the basis of the reported adoption.

However, both Ghisalal and the heirs of Dhapubai
challenged the directions of the lower courts over division of
property.

Dismissing the adopted son`s claim, the apex court
said "the wife?s silence or lack of protest on her part also
cannot give rise to an inference that she had consented to the
adoption.

"In our view, the trial court, the lower appellate
court and the learned single judge of the High Court
misdirected themselves in deciding the issue relating to
Dhapubai’s consent to the adoption of Ghisalal by Gopalji. All
the courts held that the consent of Dhapubai can be presumed
because she was present in the ceremonies of adoption.
"The learned single judge went a step further and
observed that failure of Dhapubai to challenge the adoption
deed is a strong circumstance which goes to show that she had
consented to the adoption of Ghisalal by her husband," the
bench said.

According to the apex court, unfortunately, all the
lower courts completely ignored that the presence of Dhapubai
in the ceremonies of adoption was only as a mute spectator and
not as an active participant.

"Neither Ghisalal nor any of the witnesses examined by
him stated that before taking Ghisalal in adoption, Gopalji
had consulted Dhapubai or taken her in confidence and the
latter had given her consent or agreed to the adoption of
Ghisalal or that she had taken a prominent part in the
adoption ceremonies.

"All of them made a parrot-like statement that
Dhapubai was sitting with other women below the platform
(chabutra). By no stretch of imagination, this could be
equated with her active participation in the adoption
ceremonies so as to enable the courts to draw an inference
that she had given consent for the adoption of Ghisalal," the
bench said.
PTI



First Published: Wednesday, January 12, 2011 - 22:24

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