Abhiraj Kuer v. Debendra Singh

Judgment

l : S.C.R. it is not likely now that the ti:ial will take a long time. In the circumstances we are of opinion that the order of the High Court granting bail to the respondent is erroneous and should be set aside. We therefore allow the appeal and set aside the order of the High Court granting bail to the respondent. As he has already been arrested under the interim order passed by th;s Court, no further order in this connection is necessary. We, however, direct that the Sessions Judge will take steps to see that as far as possible the trial of the respondent starts within two months of the date of this order. Appeal allowed. ABHIRAJ KUER DEBENDRA SINGH (K. N. WANCHoo, K .C. DAS GuPTA and J. c. SHAH, JJ.) Hindu Law-:--Banaras School of Mitak8hara law-:--A.doptio,. of wife'• sister's daughter's son-Validity.

The appellant as reversioner sued for a declaration that the adoption of respondent 1 by respondent 2 to her deceased husband was invalid in law ond respondent 1 acquired no right to the properties left by the husband ofrespondent 2. The parties were governed by the Banaras School of ~ Mitakshara HinC:u law and respondent 1 was the sister's daughter's son of respondent 2. The question was whether a wife's 1ister's daughter's e>n could be validly adopted to a person governed by the Banaras School of Mitakshara Hindu Law. The High Court answered it in the affirmative and dismissed the suit.

Reliance was placed on behalf of the appellant in this Court on Nanda Pandit's Dattak Mimansa which specifically excluded a wife's sister's daughter's son for the purpose of adoption on the ground of incongruous relationship (Viruddha Sambandha) as also on the text of Ashvalayana interdicting marriage with a sapinda, sagotra and viruddha sambandha girl !uch as a wife's sister's daughter on which the author of Dattak Mimansa had relied. It was contended that when a positive statement in the text was followed by a nee;-ativc one, the latter Tl!e State Ca;tain ]agjit Singh Wanchoo ]. 11~1 Abhir:.y KlUr DLhPldra Siritli fi28 SUPRE~fE.COURT REPORTS [l062] containing the prohibition must be held to be mandatory al).d 'fl"' that in any case since the prohibition a~ain'it marriagr. to a sapinda or sagotra girl '"-'a5 mandatory,· the prohibition against marriage to a Viruddha Sambandha girl must also be equally ao. !ltld, that the contentions were ,...-ithout substance and must fail.

Adoption of a ,.,..ifc's sister's <laughter's son is legally \'aiirl under the Banaras School of Mitakshara Hindu law. '.'Jone of the t easons \vbich rendered marriage to a sapinda or sa!_!otra gir! invalid \\·ere present in the case of a n1arriage to a \'iruddha Sambandha girl and the rule against marrying a \.'iruddha Samhandha girl '"'·as not intended by its author to br mandatory. The extension of the rule of \'iruddha Sambandha to adoption made by Nanda P.rndit was not meant by him to be mandatory. Minak&hi v, Ramanada, (1886) I.L.R. II ~Ian. 49, distinguished. l!dd, further, that the marriage of a Hindu with his wi(c's sister's daugh1er is not invalid in Hindu law. Ragavtndra Rau v.Jayaram Rau, (1897) l.L.R. 20 ~lad. 283, referred to. Case-la,,· revie,,·ed. CIYIL Arr~:LLATE Jnusorcnox: Civil Appeal No. :nn of Hl."i8. Appeal from tho judgment and decree dated J:muary 17, U);j6 of the Patn:1 High Conrt in Appeal from Original lkcrec No. 169 of I !J47. L. K. Jha, D. I'. Singh, R. K. Garg, Jf.

K. Ramanmrlhi and S. C. Agrmcal, for the appellant. H. C. l'msfl.d, for the re~ponclrnt. Hllll. September l 5. 'l'h<' ,Judgment of tho Court was delivered by DAS GUPTA, ,T.-Can <1 wife'~ sister's daughter's son be yaJidly adopted to a person governed by the Bcuarns School of the Mitaksharn Hindu Law ? That is tho main question raised in this appeal brought on a certificate granted by the High Court at Patna. The plaintiff8 who would succeed to the properties left by Balm Ram Singh on tho death -~ of his widow but -for the adoption of Devendra Singh which this widow made on June 9, 1935, brought the present suit for a declaration that Devendra Singh was not adopted by the second defendant, Babu Ram Singh's widow and that in any case, the adoption is invalid in law and so Devtndra Singh acquired no right in the properties left by Babu Ram Singh.

The main ground on which the adoption i~ attacked as invalid is based on the fact that Devendra Singh is Babu Ram Singh's "'idow's sister's daughter's son. The other ground raised in the pl!l,int based on the plaintiff's allegation that Babu Ram Singh was governed by Mithila School of Hindu Law was negatived by the courts below and has been abandoned before us. No dispute is also raised now as regards the factum of adoption. The only question that arises in this appeal therefore is whether the adoption of a wife's sister's daughter's son is valid in law. The High Court answered this question in the affirmative and dismissed the suit. It is against that decision that the present appeal has been preferred. In support of his contention that snob an adoption is invalid in Hindu Law reliance is placed by the learned counsel on the following passage of Nanda Pandit's Dattak Mimansa :- (see Whitley Stokes's Hindu Law Books at pp. 590 and 591). 17.

Accordingly, the brother, paternal and maternal uncles, the daughter's son, and that of the sister, are excluded : for they bear no resemblance to a son. 18. Intending this very position, it is declared in the sequel, by the same author: "The daughter's son, and the sister's son, are declared to be the sons of Cudras. For the three superior tribes, a sister's son, is nowhere mentioned as a son. Here even the Abhir«j Ku1 Debendra Si Das Gupta]. Abhfraj Kun D1i11u/ra Sin11a D., Gupto ]. (I962J term "sister's son" is illustrative of the whole not resombling a. eon, for prohibited co::mection is common to them a.II. Now, prohibited connection is the unfitness of the son proposed to be adopted to havo hr ~n bogotten by tho individual himself through appointment to raise ic ;ue on the wifo of anothor. 19.

The mutual relation between a. couple, being analogous to the one, being tho father or mother of the other, connection is forbiden: as for instance-the daughter of the wife's sister, and the sist3r of the paternal uncle's wifo". The mean'ng of the text is t'iis. Who11, tho relation of tho eouplo, that is of tho bride and bridegroom, bears analogy to that of father or mother ; if the bridegroom be, as it were, father of the bride, or tho bride stand in tho light of mothor, to the bridegroom, such a marriage is a prohibited connection. Tho two examples illustrate theso cases in their order. 20. In tho same manner as in tho above toxt, of the Grihaparisistba, on m.i.rriage, prohibited connection, in tho case of marriage, is excoptod and so in the case in question, one who if begotten by tho adopter, would have beon the eon of a prohibited connection, must be excepted; in other words, such person is to be adopted, as with tho mother of whom, the adopter might have carnal knowledge.

It is urged that in view of this specific f'xclusion of a wife's sister's daughter's son from the list of thoso who are fit for adoption there is no escape from the conclusion that such an adoption would ho invalid in law. Learned Counsel has emphasised that great authority attaches to all statement.s of law as regards adoption that aro contained in Dattak Mimansa. There is no doubt that for many years now tho Dattak Cha!!drika of Kuvera and Dattak Mimansa of Nanda Pandit have bePn recogni~!'rl to be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra , Sarkar while writing in the latter part of the last century subjected many of Nanda Pandit's views to unfavourable criticism. In spite of all this the Privy Council in Bhagwan Singh v. Bhagwan Singh(') did recognise that both the Dattak Mimansa and Dattak Chandrikahad been received in courts of law including the Privy Council as high authorities and after drawfog attention to Lord Kingsdown's statements as regards these in Rungamav.Atchama(')aud SirJamesColvile's statement in Collector of Madurav.

Moottoo Ramlinga Sathupathy('), stated thus :-"To call it (i.e., Dattak Mimansa) infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law.'' While saying this mention must also be made of the observations of the Privy Council in Sri Balusu Gurulingaswami v. Sri Balasu Ramalakshmamma(') decided on the same date (March 11, 18!l9) hut immediately before Bhagwan Singh's Case, was decided, expressing their concurrence with the view that caution was required in a~cepting the glosses in Dattaka Mimansa and Dattak Chandrika where they deviate from or added to the Smirities. There can be no doubt that in laying down the rule that the adopticn of Lhe son of a woman who could not have been married by the ndoptive father because ofinoongruous relationship (Viruddha Sambandha)

Nanda Pandit was adding to the existing state of law. It is interesting to notice here that commenting on what Saunaka had said in describing the ritual of adoption that a ~"l~Tl!T'!~ (1) (1899) L.R. 26 !.A. 153, 161. (S) (1868) ll M.I.A. 397, 437. (2) (1846) I.A. 1, 97. (4) (1899) L.R. 261.A. IU, 136. Abhiraj Kuir Debendra Singh Das Gupta :J. 1P6l Abhira; K11tr D1c..dr• SU.,h Do:Cu/lta ]. [1962) son should be adopted the Dattaka Cbandrika observed at p. 14 :- '!.'ll~TllT '!~~ f.r11)lnf~'IT 'llllll!l'llR'f 11)111111fftf1r11m I (Reflection of a son-The resemblance of a son,- or in other words the capability to have been begotten, by the adopter, through appointment, and so forth). (Sutherland's translation). The Dattak Mimansa adopt;i this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.

It is unnecessary for us to examine what authority should ho attached to this serious addition to the textll for determining who can be adopted, as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority Nanda Pandit has stated this merely as a recommendation and not as a mandatory prohibition. For many years now courtl! have recognised tho position that not only tho Dharma Sutras and Grihya Sutras but also the commentaries thereon and digests mingle without hesitation statementl! of law which are intended to be recommendations merely with statements which are intended to be mandatory. In Balu Gurulinga· swami's case to which reference has just been made tho Privy Council pointed out that recent extension of tho study of Sanskrit had strengthened the view of Sir William Macnaughten that "it by no means follows that because an act has been prohibited it should therefore be considered illegal.

The distinction between tho vinculum juris and the vinoulum pudoris is not always discernible," and adding to tho previous statement of the Board in Rao BalwantSinghv. Rani Kishori(1 ) decided in tho previous year the Privy Council observed these words of caution in Ba.luau Gurulingaswami's case:- "They now add that tho further study of tho subject necel!sary for the decision of these (I) (1898) L.R. 25 I.A. 69. appeals has still ·more impressed them with the necessity of great caution in interpreting books of mixed religion, morality and law, lest foreign la wycrs, ace ustomed to treat as law what they find in authoritative books and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity never contemplated by the original law givers."

The importance of this caution has by no means decreased in the years that have gone by. It is therefore necessary to examine the words used by Nanda Pandit himself in laying down this rule against Viruddha Sambandha adoption. It has to be noticed that while he says f;rq «l'il';'I i"l qlliitiif: (One who if begotten by the adopter would have been the son of a prohibited connection must be excepted-Sutherland's translation), he does not say anything about what would happen if Viruddha. Sambandha Putra was adopted. If the rule was intended to be mandatory it is reasonable to expect that the author who as the treat.ise itself shows was a master of logic and well acquainted with the rules of logic and other rules which deal with the question of mandatory injunctions would give clear indication of that view. This was all the more reasonable to expect as he was introducing a new rule. But he contents himself with saying that f~ ~qpllf '!"') mi1t:

We do not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided, can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid in law. Notice has necessarily to be taken in this oonnection of the fact that the only authority mentioned by Nanda Pandit himself . against , 19~1 .A.ihirqj Kiw v •. D1h1ndra $i111h D•s Gupla J. JUI .t4biiraj !\ wr D~e11rir• Sinilt D'1 C11pt:J J. · SC.:PREME COURT REPORTS [1962] Viruddha Sambandlrn. marriago from which he <llJuces his rule of Viruddha Sambandha in matters of adoption is to be found in tho text of Ashvalayana : !':~•Ill ~' "'~"'l 'lr.llf ll'l)Q'!;l'lfff'l'Jl'•lll'll'l'llllififq ~t'!"ll•U~ I (Tho bridegroom duly qualified should marr.v a duly qualified maiden who is younger in yean;, is not a sapinda, is not of the same gotra, and whose marriage doeo not involve a viruddha sambandha) (contrary relationship).

It is followed a little later by this comment : ~~If~: f'l'il''!T!ml•Q'A'q: !!<~: I Q'qf 'lTl!if'l'J{f~T f'l<!!lfq<'lll: flf!!T I (Viruddha Sambandha is that Sambandha (relation) which is viruddha (contrary or improper) owing to the relationship (existing) betwt·en tho bride and the bridegroom (before their marriage) being similar to that of a father or mother. As for instanco the daughter of the wife's sister (and) tho sister of the maternal uncle's wife). Is this rule man<latorv? In other words, would a marriage of a girl standi1ig in the Viruddha Sambnndha relatio11ship to the bridegroom be invalid. Wo are not >iatisfied that this is tl1c position in Jaw. It is striking that though the numerous Dharma Sutras and Grihya Sutras, deal at great length with the question of the girl who can Lo taken in marriage not one of them with the solitary exception of Ashvalaya.na has anything to say a.bout Viru<ldha Samban<lha.

Coming to moro recent times tho only Digest in which imy reference to this Virudha Sambandha of Ashvalaya.na can be traced is in Nimaya Sindbu (late Hith century). 'There· is no reference to this however in Raglmnandana's exhaustive treatise on marriage udhvahatattva which was written in the early 16th century. In Nirnaya Sindhu there is only a ba.ld reference to this in these words :- 1 11111f'IV1'lt•f"~"l!= 1 q•n ')o,i<tf•f~•z-"aif11q11ill"'1- "'l•t•lia" ~it'Rilt f"q «;il•q: '"qil<fl<l!i": l 'q>l't 'lltll'T· ,·<I' !j~fl!"I fq'!~q'«'()'<flll '11 1 •f<I l (There is also the bar to marriage ':Jy savings (of sages). As in the Grihyaparishisth:O, "should not marry a girl of V i··uddha Sambandha (incongruous relationsh~p)"­ Virnddha. Sambandha was illustrated thus: ".As in the case of wife's sister's daughter; fat;her's brother's wife's sister." without any comments whatsoever.

It is reasonable to think that the numerous Smritikars and commentators who have dealt with the subject of marriage were acquainted with Ashvalayana's te:x:t but did not think it necessary to refor to it tLS it was a recommendatory rule not considered to be of much importar.ce. Mr. Jha argues that wLen a positive sbtement is followed .JY a negaLive "tatement, the negative stafoment 1 ,ould always be held to contain a prohibitory m<>n<late. Thus he says that as aft0r sa.ying :;moiit i!<:t w&lut'l<ll l!i"•oti 1111iqu) ! (7<rlfqi'I) says ne:x:t at;lf'!•il'l«riim:;i1'1f'IQ: «;il•"ltl!'lqlia the rule contc1ined in this latter porti0<1 should be held to be mandatory. We can find no ;iustification either in the modern rulea of interpretation or in the rules of intClrpretation of the old Hindu Shastras for 1mch a view.

One in',~<mce where a negative rule following a positive direction on this very subject of maniage cannot possibly be considered to be mandatory can be found in Yajnavalkaya's te:x:t :- atfll'l'!l'I 11~11! wlR•lli f~"!i~'f. r ill"'"'lr11,..i ~iimfqqt llli1'lllr'{ 11 11111:W11•ii 'i11'!11<ftli«l!l'ITii 11'!1'iil!'l I {Let him, wh9se life as bachelor is unsullied, marry a wife who posses1;es good qualities, who has not been enjoyed by another, who is beautiful, who is not his sapinca, who is younger than hilllself, l who is .not. sufferi~ Abhiraj Kuer Debendra Singh Das Gupta]~ .-tMiroj Kiur D161ndra Sintli Da1 CufJta ]. SUP~E'ME COURT REPORTS [1902) from any complaints, who has brothers, and who docs not belong to the family descended from the same primitive guide." Quite dearly the rule t'iM a girl suffering from disease should not be married is not a mandatory rule even though it follows some po~itive rules about marriage. That this is tho position has been pointed by Vigyaneshwar.

It is interesting to notice in this oonnection-Ashvalayana's own statement about marriage rnles in t.he fourth section of the first Chapter of his Grihaya Sutra. After saying ~f~ ~lit ll11•m (a daui;hter ~hould be given to a man of understanding) he eaye in the noxt text ~~~"'ff" lilf"frin'1r1'!:~1! (that one should marry a girl of nnderstanding, gocd looks, good conduct and g()od qualities) and one who is not suffering from any disease. This also is a oa.so of a positive statement that a person should marry a girl of understanding, goo<l looks, good conduct and good qualities, followed by a rnle thnt a person should not marry a girl suffering from disease. Even so, it cannot be imagined for a moment that this .. rule that ono should not marry a girl suffering from disease is a mandatory rule, implying that marriage with such a girl would be invalid.

In 1my case, argues the learned counsel, when we find the three rules against marriage to a sapinda girl and sagotra girl and Viruddha Sambandha girl in tho samo text as hero and admittedly the first two are mandatory and marriage to a sapinda gi.rl or a sagotra girl would be invalid there is no reason why the same result should not follow on broach of the third rule against marrying a Viruddha Sambandh:~ girl. 'l'he reasons why marriage to a sapinda girl or a sagotra girl has always been held to be invalid are succinctly stated by lt3ghnnandana in bis Udhvahatattva in a passage which has been transhted thus by Dr. Jogendra Nath Bhattacharyya in his Commentaries on Hindu Law; Third Edition, Vot I, at p. 188:- SUPRE1\1E COURT R.EPOliTS "The negative · ordinances prohibiting marriage with girls of the same gotra, pravara etc., are parudasa (exceptional clauses) having reference to a vidhi; they are also prohibitions prop9r, like the prohibitory rule about the sexual union on parva days, because they forbid such marriages by the accompaniment of condemnatory anr:l penance clauses, (See Texts of Apastamba and Sumantu), (cited on p. 187) and in view also of the fact that such marriages may spring from natural inclination.

The term wife is like the terms yupa (sacrificial post) ahavaniya (sacrificial fire), and denotes a female taken in marriage with occult ceremonies. Therefore, where a sapinda or a sagotra girl is taken in marriage, she does not become a wife." It is a clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayana's text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the conse<juence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha.. Sambandha girl, Tt appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Samban<lha girl as a mandatory prohibition.

This must have been even more clear to Nanda Pandit and so when extending Viruddha Sambimdha to adoption on the Yery basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda P.indit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mand'itory prohibition. Our attention was drawn to a decieion of the Madras High Court in Minakshi v. Ramanada (') where the learned judges observed:- (() (1886)!.L.R. II Mad. 49. 11'1 ~4bhiraj.Kuer Dtbtndra 'Jinth Dar Ou;ta J. ; (1932] .. . . ''In the case of marriage, the~e are three Aihiraj K,,,,. prohibitions, viz., · n,b,.;;.s;.gh . · (1) The couple-bet~e~n whom inarrlage is v.,c.pi.];·- - •· · , proposed should.not be sa.pindas; , (2) They should notbe ugotras; and ·... ; -i'' (3)

There should 'be . llO' viriiddha ".• •· ,., Sambandha or coritra,ry relationship as would render sexu.11 · conri'"ction '· between . them incestucus." · · · The real question ~hich wa~ bef~n• th~·Full Bench was ·whdher there can be valid adoption under the Hindu law if ti. legal marriage is not possible between the person for whom the 11doption i9 made and the mother of the bciy who is adopted, in her maiden ~tate; - In the case before the Full Bench, the adoptee's mother JVas a sagotra of the acloptive father, and so, there could •be no legal marria:1e between theni. '

It was not necessary therefore for the learned judges in the Minakshi's case to consider whether. the Viruddha SambE.ndha rule , against marriage was mandatory or not.· ' ~- .we' a:~~ not a~a~e of any de~ision 'in' any of the High Courts where Nanda Pand~t's:rule. tlgainst Viruddha Sam bandha adoption has been contiidercd to •be· a mandatory !prohibition .. , For the reasons discussed above we are· of opinion that' this rule . introduced by Nanda Pandit is only a recommench- . tion and 'consequently it is of no avail to' the appellant to show that the adoption of wife's sister's daughter's son is invalid. · :III~.

Jha then tri~d to tak~ advantage of the .. rule which has been accepted by almost all tho High · Courts except Bombay that there can be no .valid legal adoption unless a legal marriage is. possible ·between. the. person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state, by urgin" that there can be no legal ' marriaO'e between a per:On' and his wife's sister's daught~r. Assuming for tlie present that it is no I (}39 longer open to ch~llenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, fur the simple reaRon that we see no reason to think that there can be no legally valid marriage between a perwn and his wife'.s sister's daughter. For the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Asvalayana's Viruddha Sambandha rule.

That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid. As early as 1878 Dr. Gooroodas Banerjee (whose erudition equalled his orthodoxy) dealing with this question in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan observed thus : (p. 64). "The prohibition by reason of affinity, which exsts in other sy[tems, has no place in Hindu Law. But the prohibition of marriage with sapindas to some extent supplies its place and so did the prohibition of widow marriage. The Hindu Law, however, does not prohibit marriage with the wifo's sister, or even with her niece or her aunt." Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol. J, also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wife's sister's daughter (already quoted above):

"Instances of m.:.rriage with wife's sister's daughter, and wife's brother's daughter, are <tlso not unknown in Bengal though, Hindu sentiment is strong against such marriages." The question was directly raised in Ragavendra Rau v. Jayaram Rau ('). M:r. Justice Subramania Ayyar and M:r. Justice Benson relying on Dr. Gooroodas Banerjee's statement of the law (11 (1897) I.L.R. 20 Mad. 283. Abhirqj Kutr Deb~n,drJ Singh Das Gupta· J. JW.1 .-ibiiraj K1ur Debnulro Sinzh Du G.,ta ]. Sl;l'REME COURT REPORTS [1962) and also on Syama Charan Sarkar's Vyava.stha- Darpan, Dr. Bbattacharyya's commentaries on Hindu Law and certain other text books held that marri'l.ge between a man and his wife's sister's dnughter is valid. The learned judges pointed out that in South India at least there was little to indicate that such marriages are disappovcd of "by tho mombers ofany section of the community."

In our opinion a marriage of a Hindu with his wjfo's sister's daughter is not invalid in law e\·cn though it mar not be liked by certain people. Mr. Jha's second argument based on the rulo which we h1n·" assumed to be not open to challenge for the pttrposo of this case that there can be no valid ndoptio11 unless a legal marriage is possible between the p9rson for whom the adoption is made and the motlwr of th" boy who is adopted in her maiden state, must thc>refore foil. 'V" therefore hold that the High Court was right in its eonclusion that tho nd0ption of a wife's sister's daughtc>r's son is Ya.lid i11 lnw. The appeal is accordingly dismissed with costH. Appeal dismiBsed.