Competency of a Hindu Widow to Make an Adoption in South India

The Privy Council accepted the view that this school of Hindu Law permits a widow to adopt even in the absence of authority from the husband, provided the Sapindas have given their assent to the adoption proposed to be made by her. The questions that naturally arise in this connection are the following:

(1) Who are the Sapindas whose Assent is Necessary?

In the Ramnad case the Privy Council pointed out that if the family is an undivided family and the father-in-law is alive; his assent is both necessary and sufficient.

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Suppose there is no father-in-law but there is a son who gives his consent to his mother to adopt in case of his death without issue and without leaving his own widow. This consent also is sufficient for the validity of the adoption and other Sapindas need not be consulted. Annapurnamma v. Appayya, 52 Mad. 620 (FB).

In other cases, the question as to which of the kinsmen should be approached for their assent depends upon whether the husband died divided or undivided. In the Berhampur case: Sri Raghunandha Deo v. Krishna Rao, 1875 (3) IA 154: 1 Mad. 69 (PC), it was held that the widow should seek authority within the undivided family.

Authorisation by separated remote kinsman is not sufficient. In the Urlam case: Veerabasavaraju v. Balasurya Prasada Rao, 41 Mad. 998 (PC): 1918 (45) IA 265, it was pointed out that where the family is divided, brothers of the husband should be approached for their consent. In their absence the consent of the nearest agnates should be obtained.

In that case the father-in-law’s brother’s son was the nearest agnate. His assent was not sought. The reason given was that he would anyhow have refused his assent. The assent of more distant kindred was obtained. The Privy Council held that the absence of consent by the nearest agnate cannot be made good by the authorisation of distant relatives. The adoption was held to be invalid.

Where there are several nearest agnates of equal degree, all of them should be requested to consent. In such a case the assent of the majority would suffice but the application for according assent should be made to all of them even though it may not be granted by some of them.

In the Adusumilli case: Krishnayya v. Lakshmipathi, 43 Mad. 650 (PC), there were five nearest Sapindas. The widow applied for consent to only one of them. It was held that the adoption thus made was invalid.

When there are agnates, the widow need not seek the consent of the cognates. This principle was laid down in Ramasubbayya v. Chenchuramayya, AIR 1947 PC 124. In that case the widow made the adoption with the consent of the nearest agnates. But she had not consulted the son of the daughter of her husband by another wife.

Though the daughter’s son was a cognate he was a nearer reversioner than the agnates. It was held that this was immaterial and that the adoption was valid for when there are agnates the cognates need not be consulted.

In the absence of agnates the permission of the nearest cognate would be sufficient. Kesar Singh v. Secretary of State, 49 Mad. 652.

(2) When is Refusal of Consent Improper?

Second Pittapur case; Sri Krishnayya Rao v. Suryarao Bahadur, 69 MLJ 398 (PC), the widow of the Zamindar of Gollaprolu wanted to make an adoption. The nearest Sapindas were R, the adopted son and S, the subsequently bom aurasa son, of the late Raju of Pittapur who was the divided brother of her deceased husband.

These two nearest Sapindas were on inimical terms to each other for the adopted son had in the earlier proceedings (1st Pittapur case. 22 Mad. 383 (PC), questioned though unsuccessfully, the very legitimacy of the subsequently born aurasa son.

The widow wanted to adopt the son of R. She applied to R and S for their consent. S refused his consent on the ground (1) that his advice should have been sought as to who should be adopted whereas his consent was sought by the widow for adopting a boy whom she had herself fixed without consulting him and (ii) the boy proposed to be adopted was the son of his enemy. S challenged the validity of the adoption made in spite of his refusal to accord his consent.

The Privy Council held that S was not justified in withholding his consent on the grounds mentioned by him and that consent of the other sapinda of equal degree was in those circumstances sufficient to uphold the adoption. S further contended that R was disqualified from giving his consent as his own son was the boy proposed to be adopted. The Privy Council rejected this contention also and upheld the validity of the adoption.

Though an improper refusal of consent by the nearest sapinda may be ignored by the widow, it is absolutely necessary to seek his consent. This was decided in the Adusumilli case, 43 Mad. 650 (PC), Adusumilli Case: Adusumilli Krishnayya v. Lakshmipati, 43 Mad. 650 (PC).

The appellant (defendant) Krishnayya was adopted into Adusumilli family by the widow of Seshadri. The nearest reversioners were five sons of different brothers of late Seshadri (Plaintiffs 1 to 4 and defendant 5). The evidence showed that she had applied for the consent of only one of them, the defendant (5) and not of the other four (plaintiffs 1 to 4.) Ignoring those four nearest sapindas she secured the consent of remoter Sapindas.

It was held in this case that the adoption made in such circumstances was invalid. It was contended that plaintiffs 1 to 4 were inimical to the widow and so she was not bound to apply to them as their refusal was a foregone conclusion.

The Adusumilli case shows that it is not open to the widow to refrain from applying to some of the sapindas of equal degree. No doubt Viscount Cave is careful enough to point out that there may be exceptional cases where the widow may make a valid adoption even though she has not applied for the consent of some of the nearest Sapindas.

Such exceptional cases, mentioned by the Privy Council by way of example, are: (i) Where the sapinda concerned is in a distant country (ii) where he is a convict undergoing imprisonment. What the Privy Council emphasizes is that “save in exceptional cases such as those mentioned above the consent of the nearest sapindas must be asked, and if it is not asked it is no excuse to say that they would certainly have refused”.

(3) Fatal Defects in Consent:

The consent given by the Sapindas cannot sustain the adoption if it is vitiated by certain defects. For example consent would be treated as vitiated in cases such as the following: —

(a) Where consent is purchased by paying monetary considefation. 2 Mad. 270.

(b) Where consent is obtained by misrepresenting to the Sapindas that the husband himself had given authority to adopt. Gopalszvami v. Sidamma, AIR 1958 Mad. 488 (Per Rajamannar, C.J.)

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