Jharkhand High Court
Bhubneshwar Mahto vs Kumari Namia on 10 July, 2025
2025:JHHC:18583
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 298 of 2002
[Against the judgment and decree dated 03.10.2022 (decree signed on
17.10.2022) passed by learned Additional District Judge-III, Deoghar in
Title Appeal No. 41 of 1994]
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1. Bhubneshwar Mahto, son of Late Baidyanath Mahto,
2. Bimla Devi, wife of Sri Bhubneshwar Mahto,
3. Sandeep Kumar @ Congress Yadav, son of Sri Bhubneshwar
Mahto,
All resident of village-Jamuwa, P.S. Mohanpur, Sub-Division and
District-Deoghar ... ... Appellants
Versus
Kumari Namia, D/o Bhukhlal Mahto, R/o Village Jamuwa, P.S.
Mohanpur, Sub Division District Deoghar ...... Respondent
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMARSRIVASTAVA
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For the Appellants :Mr. Kundan Kr. Ambastha, Advocate
Mr. Sumit Kumar, Advocate
For the Respondent :Mr.Ram Lakhan Yadav, Advocate
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JUDGMENT
C.A.V. on 01.07.2025 Pronounced on 10/07/2025
Per Pradeep Kumar Srivastava
The instant Second Appeal is preferred being aggrieved and
dissatisfied with the Judgment and Decree dated 03.10.2002 (decree
signed on 17.10.2002) passed by learned Additional District Judge-III,
Deoghar in Title Appeal No. 41 of 1994 whereby the Judgment and
Decree dated 16.09.1994 (decree signed on 24.09.1994) passed by
Subordinate Judge-II, Deoghar was set aside.
2. The case of the plaintiff in short is that the plaintiff namely Karmi
Devi (original respondent in this appeal)had filed Title Suit No. 17/1986
for a declaration that the registered adoption deed dated 31.03.1986
executed by defendant No. 4 (deceased appellant No. 3) Bhukhlal Mahto
is illegal, void and inoperative along with the cost of the suit.
The plaintiff has pleaded that she is legally married wife of
defendant No. 4, Bhukhlal Yadav and out of their wedlock, one female
child namely Kumari Namia was born. It is further alleged that due to
some family dispute and differencesin the year 1983, her husband started
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living separately with her but marriage was never dissolved through
decree of divorce or in any customary process. It is further alleged that
plaintiff's husband has executed registered adoption deed dated
31.03.1986 whereby defendant No. 3 Sandeep Kumar has been adopted
as his son. On query by the plaintiff, her husband denied about the
execution of aforesaid adoption deed but admitted the execution of
BhugatbandhaMortgage (usufructuary) in favour of defendant No. 1. It is
further alleged that since the said adoption was illegally executed
without consent of the plaintiff by her husband hence the same is void,
illegal and inoperative and fit to be declared as void and illegal.
3. Joint written statement was filed on behalf of defendant No. 1, 2
and 4 and separate written statement was filed by minor defendant No. 3
through legal guardian. Defendant has admitted the factum of marriage
between plaintiff and defendant No. 4. It is further alleged that since
1980, due to illness of the defendant No. 4 the plaintiff started illicit
relationship with one Kartik Mahto. The defendant No. 4 has denied the
birth of daughter out of wedlock with the plaintiff rather she was
outcome with the illicit relationship between his wife and Kartik Mahto.
It is further alleged that with a view to resolve the dispute and
differences, they arrived at amicable settlement and Panchayati was held
on occasion of Basant Panchami in the year 1982 wherein plaintiff along
with her brother Kanti Mahto appeared and with the consent of the
plaintiff and her brother, the Panchas decided to dissolve the marriage
between plaintiff and defendant No. 4 with immediate effect. It is further
alleged that such type of customary mutual divorce outside Court is
prevalent in the society of the parties. The mutual divorce as well as
decision of the Panchas was reduced into writing in two
copies/panchnama and one copy was given to each party but the copy of
Panchnama given to defendant No. 4 was damaged with rain water and
to some extent it has become illegible. It is further alleged that after
dissolution of marriage, plaintiff Karmi Devi remarried with her beloved
Kartik Mahto and out of this wedlock, two daughters have been born to
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her and she is residing at village Gaura since 1982, which is after
dissolution of the marriage as is also evident from their voter-list. It is
alleged that daughter Numuwa @ Namia born to plaintiff before
dissolution of the marriage is an illegitimate child of defendant No. 4. It
is further alleged that in the voter-list of village Gaura, plaintiff is named
as wife of Kartik Mahto although her paternal village is Jamua. It is also
admitted that defendant No. 1, 2 and 4 have executed registered adoption
deed dated 31.03.1986 and the story of Bhugatbandha Mortgage is
palpably false. Defendant No. 4 having no issue, adopted a son after
valid dissolution of marriage. Therefore, no consent of the plaintiff was
required and this suit is not maintainable and fit to be dismissed.
4. On the basis of the pleadings of the parties, the learned Trial Court
has settled three vital issues amongst other as follows:
"Issue No. 4:-Whether Karmi Devi, the plaintiff has broken the
marital tie with her husband, Bhukhlal Mahto, the defendant No. 4
and whether their marriage was dissolved as per custom prevalent
in society in village Panchayati and whether she ceased to be wife
of Bhukhlal Mahto?
Issue No. 5:-Whether Karmi Devi, the plaintiff was remarried
with the Kartik Mahto of Village Gaura.
Issue No. 6:-Whether the deed of adoption dated 31.03.1986
executed by defendant No. 1, 2 and 4 in favour of defendant No. 3
is illegal, void and inoperative document or genuine document."
5. The learned Trial Court has taken Issue No. 4 and 5 together for
adjudication and after appreciating the evidences of defendants including
defendant No. 4 as well as the documentary evidence in the shape of
voter list of village Gaura arrived at a conclusion that the factum of
dissolution of marriage through Panchayati as pleaded by defendant No.
4 has not been proved. The voter list also shows the name of wife of
Kartik Mahto not to be plaintiff. The remarriage of Karmi Devi with
Kartik Mahto is also falsified. The evidences of witnesses suffers from
material discrepancies and contradictions rendering themselves
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unreliable. No Panchnama was brought on record for dissolution of
marriage between plaintiff and defendant No. 4, in spite of aforesaid
observation, the learned Trial Court acted upon the pleadings of the
defendant No. 4 in his written statement to be gospel truth and decided
the above issue in favour of the defendant and against the plaintiff.
The learned Trial Court also found the adoption deed dated
31.03.1986 executed by defendant No. 1,2 and 4 in favour of defendant
No. 3 to be legal and valid. Accordingly, decided the issue no. 6 also
against the plaintiff and in favour of defendants. Accordingly, dismissed
the suit of the plaintiff on contest with cost.
6. The plaintiff preferred an appeal No. 41 of 1994 before the
District Judge, Deoghar. The first Appellate Court hearing the rival
contentions and on the basis of evidence adduced before the Trial Court,
proceeded to decide the main issues No. 4 , 5 and 6 afresh. The Appellate
Court also took the issue No. 4 and 5 together and arrived at a conclusion
that due to dispute and differences and frequent quarrels between
plaintiff and defendant No. 4, the plaintiff left her husband and went to
her Naiher. It was observed that there were two Kartik Mahto one of
village Gaura and second of village Jamua who have been examined as
P.W. 7 and P.W.-8, respectively but denied the marriage with Karmi Devi
or any illicit relationship with her. As regards second marriage of the
Karmi Devi, no concrete proof has been brought on record. Similarly, the
defendant has also failed to prove the dissolution of marriage between
plaintiff and defendant No. 4. Therefore, both the issues were found to be
wrongly decided by the learned Trial Court hence finding was reversed
and issues were decided in favour of plaintiff and against the defendants.
As regards, issue No. 6, the Appellate Court found that the adoption deed
executed by defendant No. 1, 2 and 4 in favour of defendant No. 3 dated
31.03.1986 without consent of his legally married wife Karmi Devi
(which is admitted by the defendant No. 4 himself). Therefore the
presumption of genuineness of adoption deed under Section 16 of the
Hindu Adoption and Maintenance Act, 1956 stands rebutted. As per
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provisions of Hindu Adoption and Maintenance Act, 1956, the alleged
adoption deed executed by defendant No. 1, 2 and 4 in favour of
defendant No. 3 is absolutely illegal, void and inoperative and not a
genuine document. Accordingly, the judgment passed by the learned
Trial Court was set aside and suit of the plaintiff was decreed.
7. This appeal has been admitted vide order dated 20.02.2004 on the
following substantial question of law:-
"Whether the Judgment and Decree passed by the Court below
reversing the finding of the trial Court on the question of
dissolution of marriage and adoption without appreciating the
relevant provisions of law particularly the presumption attached
with a registered deed of adoption, can be sustained in law".
8. Learned counsel for the appellants/defendants pressing the
aforesaid substantial question of law has vehemently argued that entire
approach of the first Appellate Court is vitiated due to wrong
interpretation of the evidences of witnesses and misconceived notion
about requirement of consent of the wife for the purpose of adoption of a
child asmandatory when the wife was deserting the husband since three
years ago and residing separately. It is further submitted that the first
Appellate Court has failed to properly consider the exhibit G the receipt
issued by DharmaRakshini Sabhaof Baidyanath Temple and arrived at
wrong conclusion. The learned first Appellate Court has also failed to
consider the presumption attached to registered adoption deed under
Section 16 of the Hindu Adoption and Maintenance Act, 1956. Hence,
the whole approach of the learned first Appellate Court was unwarranted
and beyond the record and based on his own conjecture and surmises,
which is fit to be set aside and the judgment and decree passed by the
learned trial Court be restored.
9. On the other hand, learned counsel for the respondent has
controverted the aforesaid argument raised on behalf of the appellants
and submitted that the appellant/defendant No. 4 himself admitted in his
evidence that no formal divorce with the plaintiff was obtained and even
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the plea taken by the defendants regarding dissolution of marriage
between plaintiff and defendant No. 4 was proved to the satisfaction of
the Court. The learned Trial Court misconceived and misinterpreted the
evidences and valuable admissions of the defendant No. 4 (husband of
the plaintiff) and arrived at wrong conclusion and dismissed the suit
which has been rightly reappreciated by the learned first Appellate Court
and the judgment and decree of trial Court was reversed. There is no
illegality or infirmity in the Impugned Judgment and decree calling for
any interference in this appeal, which is fit to be dismissed.
10. For proper appreciation of rival contentions of the parties and the
substantial question involved in this appeal, relevant provisions of Hindu
Adoption and Maintenance Act, 1956 are extracted hereinbelow:
"6. Requisites of a valid adoption.―No
adoption shall be valid unless--
(i) the person adopting has the capacity, and
also the right, to take in adoption;
(ii) the person giving in adoption has the
capacity to do so;
(iii) the person adopted is capable of being
taken in adoption; and
(iv) the adoption is made in compliance with
the other conditions mentioned in this
Chapter."
"7. Capacity of a male Hindu to take in
adoption.―Any male Hindu who is of sound
mind and is not a minor has the capacity to
take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall
not adopt except with the consent of his wife
unless the wife 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."
Explanation.―If a person has more than one
wife living at the time of adoption, the consent
of all the wives is necessary unless the consent
of any one of them is unnecessary for any of
the reasons specified in the preceding
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proviso."
"8. Capacity of a female Hindu to take in
adoption.―Any female Hindu who is of sound
mind and is not a minor has the capacity to
take a son or daughter in adoption:
Provided that, if she has a husband living, she
shall not adopt a son or daughter except with
the consent of her husband unless 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."
"9. Persons capable of giving in
adoption.―(1)No person except the father or
mother or the guardian of a child shall have
the capacity to give the child in adoption.
(2) Subject to the provisions of sub-section
(4), the father or the mother, if alive, shall
have equal right to give a son or daughter in
adoption:
Provided that such right shall not be exercised
by either of them save with the consent of the
other unless one of them 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.]
(3)* * * * *
(4) Where both the father and mother are
dead or have completely and finally
renounced the world or have abandoned the
child or have been declared by a court of
competent jurisdiction to be of unsound mind
or where the parentage of the child is not
known, the guardian of the child may give the
child in adoption with the previous permission
of the court to any person including the
guardian himself.
(5) Before granting permission to a guardian
under sub-section (4), the court shall be
satisfied that the adoption will be for the
welfare of the child, due consideration being
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for this purpose given to the wishes of the
child having regard to the age and
understanding of the child and that the
applicant for permission has not received or
agreed to receive and that no person has
made or given or agreed to make or give to
the applicant any payment or reward in
consideration of the adoption except such as
the court may sanction.
Explanation.―For the purposes of this
section―
(i) the expressions "father" and "mother" do
not include an adoptive father and an
adoptive mother;
(ia) "guardian" means a person having the
care of the person of a child or of both his
person and property and includes―
(a) a guardian appointed by the will of the
child's father or mother, and
(b) a guardian appointed or declared by a
court; and
(ii) "Court" means the city civil court or a
district court within the local limits of whose
jurisdiction the child to be adopted ordinarily
resides."
"10. Persons who may be adopted.―No
person shall be capable of being taken in
adoption unless the following conditions are
fulfilled, namely:―
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless
there is a custom or usage applicable to the
parties which permits persons who are
married being taken in adoption;
(iv) he or she has not completed the age of
fifteen years, unless there is a custom or usage
applicable to the parties which permits
persons who have completed the age of fifteen
years being taken in adoption."
"11. Other conditions for a valid
adoption.―In every adoption, the following
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conditions must be complied with:―
(i) if the adoption is of a son, the adoptive
father or mother by whom the adoption is
made must not have a Hindu son, son's son or
son's son's son (whether by legitimate blood
relationship or by adoption) living at the time
of adoption;
(ii) if the adoption is of a daughter, the
adoptive father or mother by whom the
adoption is made must not have a Hindu
daughter or son's daughter (whether by
legitimate blood relationship or by adoption)
living at the time of adoption;
(iii) if the adoption is by a male and the
person to be adopted is a female, the adoptive
father is at least twenty-one years older than
the person to be adopted;
(iv) if the adoption is by a female and the
person to be adopted is a male, the adoptive
mother is at least twenty-one years older than
the person to be adopted;
(v) the same child may not be adopted
simultaneously by two or more persons;
(vi) the child to be adopted must be actually
given and taken in adoption by the parents or
guardian concerned or under their authority
with intent to transfer the child from the
family of its birth [or in the case of an
abandoned child or a child whose parentage
is not known, from the place or family where it
has been brought up] to the family of its
adoption:
Provided that the performance of dattahomam
shall not be essential to the validity of an
adoption."
"12. Effects of adoption.―An adopted child
shall be deemed to be the child of his or her
adoptive father or mother for all purposes
with effect from the date of the adoption and
from such date all the ties of the child in the
family of his or her birth shall be deemed to
be severed and replaced by those created by
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the adoption in the adoptive family:
Provided that―
(a) the child cannot marry any person whom
he or she could not have married if he or she
had continued in the family of his or her birth;
(b) any property which vested in the adopted
child before the adoption shall continue to
vest in such person subject to the obligations,
if any, attaching to the ownership of such
property, including the obligation to maintain
relatives in the family of his or her birth;
(c) the adopted child shall not divest any
person of any estate which vested in him or
her before the adoption."
....
"16. Presumption as to registered
documents relating to adoption.―Whenever
any document registered under any law for
the time being in force is produced before any
court purporting to record an adoption made
and is signed by the person giving and the
person taking the child in adoption, the court
shall presume that the adoption has been
made in compliance with the provisions of this
Act unless and until it is disproved."
11. Now I have to consider the rival contentions of the parties in the
light of findings recorded by both the Court below and the relevant
provisions of law as discussed above. It is a simple case for declaration
of registered deed of adoption dated 31.03.1986 executed by defendants
to be illegal, null and void. It appears that the learned Trial Court has
considered the defence of defendant No. 4 husband of the plaintiff only
on the basis of the written statement filed by him taking specific plea that
his wife has deserted him since more than three years and remarried with
one Kartik Mahto and out of her second wedlock, there are two children.
The marriage was dissolved through Panchayati and Panchnama was
also executed and reduced into writing which has been deteriorated due
to rain water and not produced in the Court, although the defendant No.
4 himself has been examined as P.W.-5 in which he has completely
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denied the execution of any adoption deed of defendant No. 3 from
defendant No. 1& 2. He has also not proved the divorce with the plaintiff
through Panchayati. Therefore, the pleading of the defendant No. 4
accepted and acted upon by the learned trial Court is totally unwarranted
under law, hence the learned First Appellate Court which has examined
the oral as well as documentary evidences adduced by the plaintiff and
defendants found that the defendant has not been able to prove his
version of divorce with the plaintiff and her remarriage with one Kartik
Mahto, the copy of voter list (Exhibit 2) showing that the plaintiff was
married with Kartik Mahto is also not in consonance with the said voter
list but at Sl. No. 4 and 8, the name of wife of Kartik Mahto is
Chandrawati Devi. Therefore, the learned Appellate Court arrived at a
firm conclusion that the marriage between plaintiff and defendant No. 4
is still subsisting and relationship of husband and wife was not dissolved
through any customary procedure of Panchayati or by any competent
court of law.
12. The learned counsel for the appellant has laid much emphasis that
since wife was residing separately for more than three years deserting
her husband, therefore, her consent was not required for making
adoption of a son by the defendant No. 4. The giving and taking
ceremony has been proved, therefore, presumption of Section 16 is
applicable in this case establishing the validity of adoption deed. In this
connection, the provision of section 7 appears to be mandatory and the
consent of wife is required for taking a valid adoption by the husband
unless exceptional circumstances i.e. (i) the wife has completely and
finally renounced the world or (ii) has ceased to be a Hindu or (iii) has
been declared by a court of competent jurisdiction to be of unsound
mind. The above exceptional circumstances have not been brought on
record to negate the requirement of consent of the wife for adoption.
13. In view of above discussion and reasons, I do not find any
illegality and infirmity in the impugned judgment and decree passed by
learned first Appellate Court while setting aside the judgment and decree
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passed by the learned trial Court reversing the same.
14. Accordingly, I do not find any merit in this Second Appeal, which
is hereby dismissed.
15. Pending I.A.s if any, stands disposed of.
16. Let a copy of this judgment along with the trial court record be
sent backto the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court
Dated 10/07/2025
Basant/N.A.F.R.
