Brajendra Singh v. State of Madhya Pradesh

Facts

Mishri Bai, a crippled woman, was married to Padam Singh in 1948 but was deserted soon after and lived with her parents; the marriage was never dissolved. In 1970 she claimed to have adopted Brajendra Singh, who looked after her, and later willed her property to him; her husband died in 1974 and she in 1989. When ceiling-law proceedings questioned her holding, the validity of the adoption was challenged for want of her capacity to adopt as a still-married woman.

Issues

• Whether a married Hindu woman whose marriage subsists in law, but who has long lived separately like a divorced woman, has the capacity under Section 8(c) HAMA to take a child in adoption.
• Whether living apart for a long period equates to dissolution of marriage for the purpose of adoptive capacity.

Arguments

The appellant argued there had been no consummation and the parties lived apart from the date of marriage, so Mishri Bai should be treated as a divorced woman (relying on the 'sham marriage' concept in Jolly Das). The State argued she fell within none of the categories in Section 8 and therefore could not validly adopt.

Held

The Court dismissed the appeal and held the adoption invalid. Under Section 8(c) HAMA a married woman can adopt only if her marriage has been dissolved, or her husband is dead, has renounced the world, ceased to be a Hindu, or been declared of unsound mind. There is a conceptual and contextual difference between a divorced woman and one merely living like a divorced woman; mere long separation does not dissolve a marriage. Since Mishri Bai's marriage subsisted at the time of the claimed adoption and she had sought no declaration of divorce, she lacked capacity and the adoption was null and void. The Court, sympathetic to the facts, permitted Brajendra Singh to retain the willed property and approach the Government regarding the surplus land.

Ratio decidendi

Capacity to adopt under Section 8(c) HAMA is determined strictly by the enumerated categories; a Hindu wife whose marriage has not been legally dissolved cannot adopt, and de facto separation is not equivalent to legal divorce.

Significance

A leading authority on the capacity of a female Hindu to adopt under Section 8 HAMA, clarifying that statutory capacity cannot be inferred from social circumstances and underscoring the religious and legal-status foundations of valid adoption. Frequently cited on the female adopter's capacity and the distinction between subsisting and dissolved marriage.

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