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Consent of wife, estranged but not divorced, necessary for adoption under Hindu Adoptions & Maintenance Act
Bhanu Pratap Singh Vs State of UP and Ors
WRIT - A No. - 10300 of 2017
About/from the judgment:
"A mere estrangement between man and wife without disruption of martial status would not take out mandate of Hindu Adoptions & Maintenance Act"
The High Court held that a man, living separately from his wife without obtaining a divorce, needs the consent of such estranged wife to adopt a child under the Hindu Adoptions and Maintenance Act, 1956.
"A wife living apart from the husband, utterly estranged, is still a wife, until the marital bond between the parties is severed by a decree of divorce or nullity of marriage," a Court has held.
The Court was dealing with a writ petition filed by one Bhanu Pratap Singh, seeking compassionate employment in the Forest Department according to provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, in place of his late uncle Rajendra Singh.
The Petitioner had submitted that being issueless, the deceased had adopted him in 2001, in accordance with Hindu rites. A deed of adoption was, however, executed much later, in December 2009.
As per the facts recorded in the order, Rajendra Singh represented himself as an unmarried man, according to the recitals carried in the adoption deed. This was done because he and his wife Smt. Phulmati were an estranged couple.
Thus, the question that arose for consideration of the Court was whether the words "If he has a wife living" occurring in the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 19561 include an estranged wife living apart from her husband, but not divorced?
Section 7 of the Act provides that any male Hindu (major and of sound mind) 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.
It may be noted that the Forest Department had denied the Petitioner's claim while stating that the adoption was not done in accordance with the Hindu Adoptions and Maintenance Act, 1956 and hence, was not valid. Hence, the instant proceedings were instituted.
The Single Bench dismissed the petition on the grounds that the adoption had not occurred in a legal manner inasmuch as Section 7 of the Hindu Adoptions and Maintenance Act, 1956 was not complied with.
The Court observed that the 1956 Act has clear provisions as per which a Hindu male needs the consent from his wife for the adoption of a child except in the circumstances where the wife is either died, has ceased to be a Hindu or is declared mentally unsound by a competent court.
In this case, the Court noted, there is no doubt that Smt. Phulmati was a wife living until the death of the late Rajendra Singh. The two were never divorced, howsoever estranged they might have been.
"A mere estrangement between the man and wife without disruption of the martial status, in accordance with law, that may either be by a decree for divorce or annulment or by death of the wife, would not take the case out of mischief of the proviso to Section 7, requiring the wife's consent to the adoption."
The Petitioner had claimed that he was adopted by his uncle while living separately from his aunt. However, the Court emphasized that during the Petitioner's adoption, his uncle and aunt were still married.
"The proviso makes it imperative for a Hindu male to secure his wife's consent to an adoption that he makes, unless she 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. There is nothing in any of these three exceptions, which may prompt the Court to read into the statute, a fourth exception of an estranged wife," stated the Court.
"It is hard to read into the plain words of the Statute, something like a virtual or constructive divorce, to relieve the male Hindu adopter of his obligations under the proviso. Even otherwise, a virtual or constructive divorce, as if it were, are concepts not accepted generally in matrimonial laws."
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