The Telegraph
Thursday , January 31 , 2013
Since 1st March, 1999
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SC clears air on adoptions

New Delhi, Jan. 30: Parents can adopt a child from outside the family and such adoptions are valid as long as there’s nothing to show they go against established custom, the Supreme Court has ruled, settling a dispute that went back four decades.

A two-judge bench, which set aside concurrent rulings of Bombay High Court and a district court, said special customs that prevail in a family or within a community “require strict proof”.

Just because a practice has been adopted as a matter of convenience, it cannot be taken as a custom, Justices B.S. Chauhan and Gopala Gowda said, upholding the 1971 adoption of an eight-year-old boy.

Lakshmibai, the widow of Narayanbuva Gosavi, a descendant of the revered Sant Eknath of Pandharpur, Maharashtra, had adopted Raghunath to perpetuate the family’s legacy of carrying the saint’s palki (palanquin) and padukas (footwear) during a holy festival and also for taking over the family property. Lakshmibai had no issue of her own.

The heirs of Narayanbuva’s brother Krishnabuva challenged the adoption, but a trial court dismissed the suit in 1971. Lakshmibai died the same year.

Krishnabuva’s heirs appealed the verdict. On March 15, 1977, the district court judge quashed the adoption as invalid on the ground that in the 375 years of the family’s history, no one had been adopted from outside the family.

The court took note of the fact that in the 375 years, only four kids had been adopted and all four were from within the family. So there was no custom to adopt a child from outside the family.

On February 2, 2001, Bombay High Court dismissed the appeal filed by Lakshmibai’s legal heirs, who then moved the apex court.

The top court, which interpreted Section 3(a) of the Hindu Adoptions and Maintenance Act, 1956, said the expressions “custom” and “usage” signified any rule that — having been continuously and uniformly observed for a long time — had obtained the force of law in an area, tribe, community, group or family. “Provided,” the bench added, “that the rule is certain and not unreasonable or opposed to public policy and that, in the case of a rule applicable only to a family, it has not been discontinued by the family.”

But Justice Chauhan, who wrote the judgment in this case, noted that only four adoptions had taken place in 375 years. The judge also said that though each time a male child had been adopted from within the family, the adoptions might have been a matter of convenience, or to prevent the family property from going to an outsider.

“There is nothing on record to establish that a child from outside the family could not have been adopted, or that any such attempt was ever made, but was resisted and discarded,” the judge said. “The respondents/defendants could not establish that a male child from outside the family could not be adopted.”

The bench said the findings recorded by the two lower courts were not based on evidence. “Special customs which prevail in a family, a particular community, etc., require strict proof and the defendants/respondents have failed to prove the same,” the apex court said, upholding the adoption.