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In response, learned counsel for the respondents submitted that the custom was not established. Evidence of PWs 1, 2 and 3 did not prove existence of custom.

The rival stands need careful consideration.

6. Since the alleged adoption took place prior to enactment of Hindu Adoptions and Maintenance Act, 1956 (in short the 'Act'), the old Hindu Law is applicable.

It would be desirable to refer to certain provisions of the Act, and the Hindu Code which governed the field prior to the enactment of the Act. Section 3(a) of the Act defines 'custom' as follows "3. Definitions.- In this Act, unless the context otherwise requires, -

Prior to the Act under the old Hindu Law, Article 3 provided as follows "Article 3-(1) A male Hindu, who has attained the age of discretion and is of sound mind, may adopt a son to himself provide he has no male issue in existence at the adoption.

(2) A Hindu who is competent to adopt may authorise either his (i) wife or (ii) widow (except in Mithila) to adopt a son to himself."

Where a son became an outcast or renounced Hindu religion, his father became entitled to adopt another. The position has not changed after enactment of Caste Disabilities Removal Act (XXI of l850) as the outcast son does not retain the religious capacity to perform the obsequial rites. In case parties are governed by Mitakshara Law, additionally adoption can be made if the natural son is a congenital lunatic or an idiot. Relevant provisions relating to custom as defined in the Hindu Code are as follows:

"Custom defined.-- Custom is an established practice at variance with the general law. Nature of custom.- A custom varying the general law may be a general, local, tribal or family custom.
Explanation 1.- A general customs includes a custom common to any considerable class of persons.
Explanation 2.- A custom which is applicable to a locality, tribe, sect or a family is called a special custom.
Custom cannot override express law -
(1) Custom has the effect of modifying the general personal law, but it does not override the statute law, unless it is expressly saved by it.