(BOBBALADI) GATEPPA Vs. (BOBBALADI) ERAMMA

JUDGEMENT

(1.) The only question in these appeals is whether the consent of the husband or his sapindas is necessary to validate an adoption made by a Jain widow. The lower Court held that the Jains are governed by Hindu Law in the absence of proof of any custom to the contrary and that the adoption is invalid as no consent was obtained either from the husband or his sapindas. The finding of fact as to the absence of consent is not disputed before us. The main argument of Mr. Sambasiva Rao who appears for the appellants is that so far as the Jains are concerned no consent is necessary and that the lower Court is wrong in thinking that the Hindu Law applied to them. Were the matter res integra I would be inclined to hold that modern research has shown that Jains are not Hindu dissenters but that Jainism has an origin and history long anterior to the Smritis and commentaries which are recognized authorities on Hindu Law and usage. In fact, Maha Veera, the last of the Jain Theerthankars, was a contemporary of Buddha and died about 527 B. C. The Jain religion refers to a number of previous Theerthankars and there can be little doubt that Jainism as a distinct religion was flourishing several centuries before Christ. In fact Jainism rejects the authority of the Vedas which form the bedrock of Hinduism and denies the efficacy of the various ceremonies which Hindus consider essential.

(2.) There is a great force in the observations of Holloway, J., in Rathams Lall V/s. Soojan Mull Lall (1) that Hindu Law cannot be applied to them. So far as Jain Law is concerned it has its own law books of which Bhadrabahu Samhit is an important one. Vardhamana Niti and Ashana Niti by the great Jain teacher Hemachandra deals also with Jain Law. No doubt by long association with Hindus who form the bulk of the population Jainism has assimilated several of the customs and ceremonial practice of the Hindus but this is no ground for applying Hindu Law as developed by Vignaneswara and other commentators, several centuries after Jainism was a distinct and separate religion with its own religious ceremonial and legal systems, en bloc to Jains and throwing on them the onus of showing that they are not bound by the law as laid down by Jain lawgivers. It seems to me that in considering questions of Jain Law relating to adoption, succession and partition we have to see what the law as expounded by Jain law- givers is and to throw the onus on those who assert that in any particular matter the Jains have adopted Hindu Law and custom and have not followed the law as laid down by their own law-givers. I have not been referred to any Jain law-giver requiring consent of the husband or sapindas to enable a widow to adopt. Several Jain communities have successfully shown the custom of adoption without consent being valid. The absence of any necessity for consent was probably due to no consent having been required by the Jain lawgivers. I see nothing in the Bhadrabahu Samhita requiring any consent (see trans. Bhadrabahu Samhita by J. L. M. A., Judge, High Court, Indore). As regards Bhadrabahu Samhita, verse 40 empowers a sonless man or woman to take a boy in adoption. Verse 83 empowers a widow to adopt a boy and make over her property to him. Verse 73 runs as follows: The virtuous lady may like her husband take to herself a son of a good gotra and instal him on the estate of her husband.

(3.) In Maharaja Govinda Nath Ray V/s. Gulab Chand (2) decided as early as 1833 the pandits consulted were of opinion that according to Jain Sastras a widow had power to adopt without any authority from her husband. There was some difference of opinion if she could depose an adopted son. They refer to Jain Sastras and there is no suggestion that the law applicable to them is the Hindu Law or that any special custom was necessary to be alleged and proved to support an adoption by a widow without consent of her husband or sapindas. There is a great force in the argument of Mr. Sambasiva Rao that it is for those who contend that the consent of the husband or his sapindas is necessary to prove that the Jains have in the matter of adoption followed Hindu Law. The matter, however, in my opinion is concluded by authority and a series of decisions extending over several years have held that the presumption is that the Jains are governed by ordinary Hindu Law unless it is shown that by custom a different law prevails among them.