RAMU BALA SANKPAL Vs. JANA DALA PATIL

JUDGEMENT

(1.) THESE two appeals arise out of two suits brought by an adopted son against certain alienees to have the alienations made by his adoptive mother before his adoption set aside on the ground that they were not made for legal necessity. The defence alleged that there was in fact legal necessity and that the adoption of the plaintiff, if proved, was invalid, because his mother was unchaste, and an unchaste widow according to Hindu law is not competent to adopt. Both the Courts have found want of legal necessity. The trial Court found that the unchastity of the plaintiff's adoptive mother, which admittedly resulted in the birth to her of an illegitimate son more than twenty years before the adoption and some four years after her husband's death, had in fact ceased before the adoption took place. It also found that even on the assumption that she was still unchaste at the time of the adoption, the unchastity would not have the effect of making the adoption invalid, because in the first place she had delegated the ceremonies which otherwise she would have had to perform but which owing to unchastity she was incompetent to perform, and in the second place no ceremonies were necessary apart from the ordinary giving and taking, since the adopted son and his adoptive father belonged to the same gotra. The Assistant Judge who heard the appeal found on the facts that the unchastity continued up to the time of the adoption, at which time he thought on the evidence that the widow was still living with one Naru Bhagoji, the father of the illegitimate son of many years before; and he thought that on a true view of the Hindu law and the authorities cited on the point an unchaste widow in the regenerate classes (to which the parties here belong) would not be capable of adopting. But he left untouched the argument relied upon by the lower Court as to the parties being of the same gotra and of the adoption therefore requiring no ceremonies to be performed by the widow. The order of the trial Court was therefore set aside and the suits were dismissed. In these appeals by the plaintiff we come to the conclusion that the adoption must be upheld.

(2.) IT seems that on the evidence the learned Assistant Judge was right in his conclusion that the widow was living in unchastity at the time of the adoption. There is not very much by way of authority one way or the other on the question of an unchaste widow's power to adopt. On behalf of the alienees in this case it has been contended, on the general principles of Hindu law as laid down in the texts, that any implied authority to adopt which the widow might be taken to possess can no longer be implied when she behaves in this way, since it is her duty to continue to be as chaste as she was in the lifetime of her husband. But there is the recent current of decisions to the effect that a widow in the Bombay Presidency has an inherent right to adopt unless prohibited by her husband (whatever may be the origin of that right, whether implied authority or something else); and it is therefore urged that the inherent right to adopt ought not to be assumed to continue in the case of a woman who has ceased to live in the way that her husband would expect her to live. IT is argued that the whole idea of an unchaste widow performing a religious act of this kind in a state of unchastity, even though it be for the benefit of her husband's soul, is repugnant to Hindu ideas; that a woman of this sort is a degraded woman within the meaning of the texts; and that though the authorities say that a woman who becomes unchaste after the death of her husband does not forfeit any property of which she may have become vested on his death, nevertheless there is no authority to be found against her forfeiting her power to adopt in similar circumstances.

(3.) WE think that there is no reason for holding in this case that the widow was incompetent to adopt the plaintiff. WE must therefore set aside the decree of the lower appellate Court and restore that of the trial Court, with costs throughout in each of the appeals.