SNAPSHOT

SNAPSHOT

Novel’s by Henry Cecil tellingly illustrates that a subject as complicated as ‘Law’ and even the technicalities of the criminal law can be understood and enjoyed through stories. “Witness for the Prosecution” by Agatha Christie is another classic in which a wife saves her murderer husband from the gallows. The story unfolds the finer points of the ‘art of cross examination’, the ‘laws of evidences’ and other subtleties of criminal law are understood in a most enjoyable way. No wonder that in the area of training/teaching also, ‘story telling’ as a method is used with so much success. Story telling is, however, a not an easy method as it is very demanding on the trainer. The trainer must be an exceptional story teller. Further, to find a good story which can arouse and retain the interest of participant and is appropriate to the training objective is another challenge.

2.       I have endeavored to use ‘story telling’ method in many of my training sessions but one very engrossing story which I use,  is worth sharing. The story is based on a Supreme Court judgment viz. “Brajendra Singh (Appelant) Vs. State of M.P. and Anr. (Respondent)” delivered on 11.1.2008. This was given to me by a participant and I have been using this story with great success in explaining a point of law in Hindu Adoption and Maintenance Act 1956(HAMA for short). Before sharing the facts of the case and the point of law, the manner in which I came across this court case is an interesting story by itself and worth a mention.

3.       One of the subject on which I take sessions is “Reservation in Services“ and have been taking this subject for almost 10 years now. However, often after the initial few years of hardwork mastering a subject, one tends to develops a smug satisfaction. Akin to the “learning plateau”, the trainer also arrives at this juncture, and his /her quest for knowledge enters the ‘dreary desert of dead habit’. The only way to ensure, continuous development is to take more and more sessions on  the particular topic.

4.       One of the subtopics of “Reservation in services” is the “effect of adoption on caste status” of a child who has been adopted. I  used to dwell very briefly on this topic by informing the participants that the caste status of the adopted child will be the ‘Caste’ of the parents who are adopting him/her and not of his biological parents. After adoption the adopted child severs all links with the biological parents. (As per shastric law, the adopted child is deemed to have been born from the womb of the adopted mother- a concept alien to the English and never understood by Lord Dalhousie).
Thus as per Hindu law(HAMA) a child not born to SC parents may acquire SC status, if adopted by a person who belongs to SC community and vice-versa. However, while discussing this point, I never lingered too long on this topic because many complicated questions relating to the Hindu Adoption and Maintenance Act 1956 arise and to answer them, one need to have a sound knowledge of HAMA. I did not do enough study of the Act and learned the hard way that to be good faculty one has to continuously master the related subjects also.

5.       In a course on “Reservation in services for Scheduled Castes/Tribes”, a participant, let us call him Mr. X, who according to my faculty colleagues was a “keen type participant” was asking too many questions and was hijacking every session.  Other faculty members who took session in that course before me, had also warned me about this Mr.X. I, however, ignored the warnings, and thought that I am capable of handling any situation.

Thus, with confidence writ large, I started my session. It was progressing smoothly and only expected questions were being raised from time to time by the participants except our Mr.X.  However at the fag end of the session, Mr.X who was very quiet so far, asked the first expected question in a tone so replete with respect and modesty that I wondered as to why, a few faculty members had warned me about him.  The question was - “Sir, would you be kind enough to answer just one question -what if the father is a SC but the mother is not. Will the child get the caste status of the father or the mother?” The question was expected. However, without showing any signs of “I knew you would ask it”, and in fact complimenting him for his brilliant question, I answered “the child will get the caste of his father as in India it is by and large a patriarchal society. Not only patriarchal- my dear friends” I continued “, it is also partilocal and the wife after marriage resides with the family of the husband and not the other way round and …….and bla bla bla“. I was enjoying answering the question and my emotion took precedence over rationality. Thus, I ignored the cardinal principle, that my seniors had very often told me that answers should be brief & to the point. Mr.X thanked me profusely for such a lucid explanation and also appeared to be (or so I thought) impressed by my deep knowledge on law which was not true at all as I had only a faint idea of HAMA having read it only so much as to clear my paper on ‘Family Law’ while pursuing my LLB many years ago.

6.       The session was in full flow and I was at my eloquent best and feeling great having been thanked by this difficult participant when Mr.X very subtly shot the first  supplementary “Sir-what if at the time of the adoption the lady is widow or unmarried i.e.  only the widow or an unmarried women adopts. Will the child get the caste of his/her mother ”? I was relieved. Yet another expected question! I referred to some court judgments on this issue that I had read and replied that it depends on how and where the child has been bought up. If the child has been bought up by the mother amidst her community then the adopted child may get the ‘caste’ of the mother.  He thanked me profusely again and by now the display of deep respect towards me had on me an intoxicating effect. 

The trap
My confidence, however, got a severe jolt only when the third supplementary came even more subtly then the second. This was the unexpected question and not part of the script. “Sir you said a widow or even an unmarried hindu women can adopt under HAMA, 1956. Sir, can a married hindu women also adopt under HAMA?”asked Mr.X with a faint sardonic smile on his face which so far was missing from his previous questions. 
I ,a little too late that it was a trap! I frankly did not know the answer and  admitted to it. Fortunately, my embarrassment was cut short as it was time for tea break providing me the providential escape. I came out of the room only to be followed closely by this participant. On getting opportunity to come within earshot, he very courteously told me, without of course waiting for my approval to start the conversation again, that perhaps to the best of his knowledge and understanding a ‘A married woman cannot adopt(even with the consent of the husband) at all under HAMA, during the subsistence of the marriage except when the husband 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. He also gave me the copy of the Supreme Court judgment.
later I read the judgment in detail and found that Mr.X was right. Although, I never had a chance to meet Mr.X, I thanked him through e-mail for enlightening me and removing my ignorance on this issue.  After this incident, in all my sessions on this topic, I use the  facts of the case  to discuss the finer points of adoption.
The tragic facts of the Supreme Court case

7.       Before I share the heart rending facts of the case, it would be appropriate to read Section 8 of the HAMA 1956 which is as follows

“8. Capacity of a female Hindu to take in adoption - Any female Hindu

(a) who is of sound mind

(b) who is not minor, an

dc) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or 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, has capacity to take a son or daughter in adoption.”

[Please read carefully- married female is not one of categories mentioned above]


8.    The case has the ingredients of an outstanding story line-  drama, tragedy, suspense and the climax. Further, the poignancy of the plot, stemming from the obnoxious Indian cultural practices projects some highly emotional and sensitive aspects of human life. And makes this an ideal story through which I now explain the implications of the section 8 © of HAMA 1956. The point of law that ‘ a married hindu women cannot adopt’ is made so very interesting only when told through this story. 

 9.      Sometime in 1948, one Mishri Bai, a crippled lady having practically no legs was given in marriage to one Padam Singh. The aforesaid marriage appears to have been solemnized because under the village custom, it was imperative for a virgin girl to get married. Padam Singh left Mishri Bai soon after the marriage and since then she was living with her parents at Village Kolinja, a nondescript village in Madhya Pradesh. Seeing her plight, her parents had given her a piece of land measuring 32 acres out of their agricultural holdings for her maintenance so that even after her death she could survive if she could manage some income from this land. Her parents passed away and in 1970, Mishri Bai adopted a boy Brajendra Singh. Padam Singh died in the year 1974.

10.     Few year after this, the Sub-Divisional Officer, Vidisha served a notice on Mishri Bai under M.P. Ceiling on Agricultural Holdings Act, 1960 (in short the 'Ceiling Act') indicating that her holding of agricultural land was more than the prescribed limit. Mishri Bai filed a reply, after seeking advice and  contending that Brajendra Singh is her adopted son and both of them constituted a Joint family and, therefore, are entitled to retain 54 acres of land. But she was shocked to receive on 28.12.1981, the Sub Divisional officer’s order dated 27.12.1981 disbelieving her claim of adoption on the ground inter-alia that in the entries in educational institutions adoptive father's name was not recorded. On 10.1.1982, Mishri Bai filed Civil Suit seeking a declaration that Brajendra Singh is her adopted son. On 19.7.1989, she executed a registered will bequeathing all her properties in favour of Brajendra Singh. Shortly thereafter, she breathed her last on 8.11.1989. The trial court by judgment and order dated 3.9.1993 decreed the suit of Mishri Bai.

11.     At this juncture, I stop the narration and inform the trainees that the State did file an appeal in the High Court and won on ground that the adoption was not valid and ask the trainees to deliberate on the possible reason. After the participants discuss and deliberate, the fate of the appeal filed by the State Government is discussed with the participants highlighting the point of law that a “married hindu women cannot adopt”.

12.     The decision of lower court was challenged by the State. The first appellate court dismissed the appeal and affirmed the judgment and decree of the trial court. It was held concurring with the view of the trial court that Mishri Bai had taken Brajendra Singh in adoption and in the will executed by Mishri Bai the factum of adoption has been mentioned. The State filed the Second Appeal before the High Court. A point was raised that the adoption was not valid in the absence of the consent of Mishri Bai's husband. The High Court allowed the appeal holding that Section 8(c) of HAMA1956 stipulated that so far as a female Hindu is concerned, only those falling within the enumerated categories can adopt a son. According to this section only a female Hindu who is (i) unmarried or (ii) if married whose marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Thus a married hindu women does not have the capacity to adopt. In the case under discussion, the marriage was subsisting at the time of adoption. The court held, that Mishri Bai was living like a divorced women but in the eyes of the law the marriage had not been dissolved and she was not a divorcee. Thus at the time of adoption Mishri bai was neither an unmarried nor a divorced women nor a widow, which are the only enumerated categories under section 8 (c ). Brajendra Singh after losing the case in High Court filed an appeal in the Supreme Court but the Supreme Court also concurred with the judgment  of the High Court.

A question which may crop up in the mind of any rationale & thinking person is as to ‘why’ the law does not permit a married hindu women to adopt? Well, it is another story for another day!

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