Karnataka High Court
Mrs. Lalitha Ubhayakar And Another vs Union Of India And Another on 26 July, 1990
Equivalent citations: AIR1991KANT186, 1990(3)KARLJ589, AIR 1991 KARNATAKA 186, (1991) MATLR 209
ORDER
1. In these writ petitions, the petitioners have challenged the constitutional validity of Sec. 8 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act). It appears, the wife, the first petitioner who is a married lady, with her husband living, wants to adopt a child at Mathruchaya Foundling Home, a Charity Hospital and an oldage home,"It is the 2nd petitioner. She was informed by the 2nd petitioner that unless her husband gives his consent, they could not give a child in adoption to her. Even according to her own averments in para 3 of the petition which reads as follows :
"3. Petitioner No. 1 hails from a very famous family with a cultural and musical heritage. She is a famous musician of both national and inter-national repute. She is a specialist of Hindustani Classical Music. She has visited Russia and other European Countries, as a Member of the Cultural Delegation in the 1970's. She is regular participant in programmes of All India Radio, and has also given performances in many important music festivals of the Country. She has given music performances at West Germany. Denmark, Holland, England and Italy, Her performances have received rare a claim from the press and the public. She is not only a great singer, but also a social worker and has held many important and key-positions in India. She was a treasurer for State Social Welfare Board and served the Organisation with distinction for 3 years. She was nominated to the State Council for Child Welfare from 1954 and is now one of its patrons. She was elected as the Councillor of the Corporation of the City of Bangalore. She is the recipient of Karnataka Sangectha Academy Award."
She as an accomplished lady having high status in society. She has already taken a child, Manila, since 1988 who is being brought up by her. Her grievance is that under Sec. 8 of the Act which specifically deals with power of woman to adopt excludes a wife from making a similar adoption. Therefore, the wife is discriminated as against a divorcee (woman) unmarried adult woman and a widow. Sec. 8 of the Act is as follows;
"8. Any female Hindu-
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption."
2. See. 7 of the Act is as follows :
"7. Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
Explanation.-- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso."
If the right is given to the wife under Sec. 7 of the Act to give consent to her husband's decision to make an adoption, that right includes right not to give consent from which it necessarily follows, her right to make an adoption can be easily exercised according to her wishes by giving or withholding the consent in the married status. The same can be said of the husband as well. In other words, the legislature was clear in its concept of adoption by parents desirous of a child in adoption as such an adoption was for both of them and not for each of them separately and distinctly. Purpose of adoption can only be;
(1) the religious belief that it is only through a son, a Hindu may attain heaven, (2) in satisfaction of parental instinct.
(3) to transfer property by succession.
It was therefore, even before the Act came into force, the customary Hindu law recognised the right of the widow to make an adoption. The other two reasons could be concurrent where parents are without children. There may be cases where their properly passes on to near and dear relative. Therefore, one of the near or dear relatives may be adopted in order to pass on the properties to such adopted child. Therefore, a married woman or a wife in praesenti stands outside the class of women who have been conferred rights u/S. 8 of the Act. S. S of the Act contemplates the right of women to adopt who are single but have attained the age of majority, a widow and a woman who has divorced her husband. In all the three instances, the woman is single in status. Therefore, compared with those women, a woman in married status falls into a different class. The legislature has not made any discrimination between a wife and a woman answering to other descriptions. The right of the wife in married status falls u/S. 7 of the Act. The adoption is to the family and not to individual spouses. This is the practice obtaining in all civilised societies which recognise the family as a unit in such societies. A child is adopted as a child adopted to the family and not the father or the mother separately. One cannot think of a situation in any civilised society that a wife may have a separate right to adopt a child without the consent of her husband and the husband may likewise do so. The complications are one to many to exhaustively enumerate the disasters that may be fall such a family. It could relate to property; it could relate to harmony within the family; it could relate to personal animosity giving expression to unbriddled passion and to violence within the family. Therefore, with all the wisdom the legislature possessed, the Parliament has made law in such a way that the harmony of the family is not destroyed by permitting the wife to adopt separately without the consent of husband or vice versa.
3. Therefore, looked at from any point of view, the first of the petitioner cannot complain of discrimination nor is there a fundamental right besides Art, 14 of the Constitution which guarantees the right to adopt.
4. Smt. Gayathri Balu, learned counsel for the petitioners, drew my attention to a decision of the Supreme Court in the case of Partap Singh v. Union of India, wherein it has been pointed out that a special provision has been made in regard to women under cl. (3) of Art. 15 of the Constitution. That is precisely what S. 8 of the Act is enacted for without which provision a Hindu woman who was not in married status could not make an adoption. Any possible discrimination on account of sex was, therefore, eliminated having regard to Art, 14 of the Constitution.
5. Many other citations such as Lakshmi Kant Pandey v. Union of India, were brought to my notice. I do not think they have any relevance to decide the matter in issue, Lakshmi Kant Pandey's case has dealt with adoption by foreign nationals of Indian children who are available for such adoption either from orphanages or families who are willing to give away the children in adoption. In that case, the Supreme Court did not do anything more than point out the need to regulate and lay down the standards which should be followed in permitting such adoptions from this Country to foreign nationals. The safeguards have been suggested and even the legislation has been advocated. It does not lay down any law in regard to special rights of the women to make an adoption, In fact, Smt. Gayathri Balu took me through the debate in the Parliament when the Hindu Code Bill was discussed, particularly the provisions of the Act and copious reference was made to the debates. There I do not find even a single-passage which may throw light on this issue. I have already observed that a child is adopted when both parents are alive to the family and not to each of the parents separately. Therefore, as long as the first of the petitioner is in a position to induce her husband to give consent load option, it cannot be said that the first petitioner is aggrieved. If she is not aggrieved by the legislation in question, she has no legal right to challenge the same.
6. For the above reasons, the petitions are dismissed. The 2nd petitioner has no fundamental or independent right. Therefore, it cannot be said to be aggrieved by the provisions of the Act.
7. The writ petitions are dismissed as frivolous but after notice to the State,
8. Petitions dismissed.