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hindu-law:adoption-legal-fiction

Adoption is legal fiction and Doctrine of Relation back is religious fiction

A legal fiction is a fact assumed or created by law. It is a legal rule. Legal fiction is one which is not actual reality and which can be recognized and the courts accept as reality. It is nothing but a presumption of existence of state of affairs which in actuality is non-existent.

In Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. and Others1) , the law is laid down in the following terms: “The purpose and object of creating a legal fiction in the statute is well-known. When a legal fiction is created, it must be given its full effect. “

In ancient Rome, where every family needed a male heir, the lack of one was overcome through the legal fiction of adoption. The effect of such legal fiction is that a position which otherwise one could not obtain is deemed to obtain under the circumstances.

It is necessary to create such legal fiction because in the absence of such legal fiction it would be very easy for a person to avoid the status or the contract or an accused can easily plead in court that he was not aware of such law and escape liability, in that case it will become very difficult for a court to impose liability.

Adoption

Under the Smriti law the adoption had the following two purposes:

  1. To perform the funeral, rites of the adoptive parents;
  2. To perpetuate the family lineage of the adoptive father.

The primary object of adoption was to extend spiritual benefit. The secondary object was to continue the lineage of the family. The legal fiction has been created by custom or religious view to give effect to the relation of adopted child and adoptive father and mother. By applying legal fiction it is assumed that relation of adopted child with adoptive father and mother is in the same manner as if the adoptive child is their real child for all purposes. It is presumed as if he had been born in the adoptive family. The fiction of adoption is that the adoption is a civil death in the natural family. It creates new birth in the adopted family. Under the principles of old Hindu Law, an adopted son was considered to have been born in the adopted family on the date of adoption where the adoption has taken place during the adoptive father’s lifetime & on the date of adoptive father’s death (i.e. date of deceased husband of the adopted widow) where the adoption had been made after his death.

The theory on which the doctrine of relation back based is that there should be no hiatus in the continuity of the line of the adoptive father. Under the Hindu Law adoption was always to the male & therefore this collar was necessary.

Had the legal fiction not been there for giving effect to adoption, it would have been very difficult to adopt the child for any person or couples. To bind children and parents with legal obligations it is mandatory to create legal fiction, by virtue of which adoptive father or mother and adopted child shall have to follow all legal provisions regarding real mother and father and also real child.

The same fiction is codified in Hindu Adoption and Maintenance Act, 1956. According to section 12 of Hindu Adoption and Maintenance Act, 1956:

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 the adoption in the adoptive family.”

  1. It is presumed as if he had been born in the adoptive family.
  2. Under the present Act the object of adoption is irrelevant. The legal effect of adoption cannot be avoided simply on the fact that the adoption was made with intent to deprive the adopted child of the right to inherit property in the family of birth.

Proviso of section 12:

(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.

  1. As per proviso (a) to Section 12 of the Act, though adoption has the effect of removing the adopted child from the natural family into the adoptive family, it doesn’t sever the ties of blood in the family of birth in the matter of marriage. Clause (iv) of Section 5 of Hindu Marriage Act lays down that the “parties are not within the degree of prohibited relationship” & clause (vi) of that section lays down as one of the conditions of valid Hindu marriage “that parties are not sapindas of each other”. Both these conditions are equally applicable to an adoptee and the adoptee cannot marry any person whom he or she could not have married on the ground of prohinited relationship or sapinda relationship as if he or she had continued in the family of his or her birth. The explaination to Section 3 of the Hindu marriage Act, 1955, inter alia state that relationship for the purposes of sapinda relationship & prohibited relationship includes relationship by adoption as well as by blood. For that purpose, he would be declared to continue in the natural family.
  2. Under proviso (b) of Section 12 of the Act, the adoptee has his right to any estate vested in time or her prior to the date of adoption. Not only the property belonging to an adopted child in the natural family such as his or her self- acquired property, property inherited by him or her from other persons including his or her father or ancestor or property held as a sole surviving coparcener in a Mitakshara family, but also the interest of a male child in Mitakshara coparcenary would continue to vest in him as if he had separated from the coparcenary.
    1. Proviso (c) to Section 12 of the Act states that the adoption shall be effective for all purposes only from the date of adoption only. It does away with the fiction of relation back under the old Hindu Law.
    2. Proviso (c) of Section 12 lays down clearly that the adoption of a son or daughter by a male or female Hindu doesn’t result in the divesting of any estate vested in any person prior to the adoption.
    3. The Proviso (c) to Section 12 only bars the adopted child from divesting any person of any estate vested in him prior to the date of adoption.
    4. The Proviso (c) to Section 12 does not either bar the adopted child exercising his coparcenary interests and rights wherever the joint family property continued. It does not allow him to claim any relation back & unjustly divest any estate vested in any person prior to the date of adoption. This means that the joint family property in the hands of the surviving brothers of the husband is not divested when the widow of the pre-deceased brother makes an adoption.

The legal fiction has been applied to give effect to the relation of adopted child and adoptive father and mother. By applying legal fiction legislature is assuming that relation of adopted child with adoptive father and mother is in the same manner as if the adoptive child is their real child for all purposes, subject to above exceptions provided in proviso.

The Act does away with the theory of relation back. It confers on the child adopted status equivalent to that of a natural born child in the adoptive family only from the date of adoption. From the date of adoption “all the ties” of the child severed from the old family Those are replaced by those created by the adoption in the adoptive family. The word ‘ties’ is very wide & comprehensive & would include all types of bonds, social, religious, cultural or any other that would bind the adoptee to his natural family.

Doctrine of relation back

According to this doctrine a son adopted by the widow under the authority of her husband was deemed to have come into existence in the adoptive family on the day the husband died. The adopted son was put in the position of posthumous son. All his relations in the adoptive family related back to the date of the death of his adoptive father by legal fiction. This theory was based on a doctrine that there should be no hiatus in the continuity of the line of adoptive father. The doctrine has got the relevance with respect to succession of the property of the adoptive father.

The rule had two exceptions:—

  1. That any lawful alienation effected by a female heir since the death at the adoptive father and before the date of adoption was binding on the adopted son.
  2. That if the property by inheritance went to a collateral, the adoption could not divest the property which was vested in the heir of the collateral.

In Sripad Gonjam v. Datta Rant Kashi Nath, Supreme Court has explained the meaning of the doctrine of relation back in the following words:

when a widow adopts a son to her husband, doctrine makes sonship retrospective from the moment of the death of the late husband.”

In Nivrutti Kushaba Binnar and others v. Sakhabai, Bombay High Court has explained the meaning of the doctrine of relation back. According to this doctrine when son was adopted by a female after husband’s death, as per customs and tenets of the Hindu Law, than it must be held that he was born in the adopted family at the time of death of male member. The adopted son is deemed to have born on the date of the death of the adoptive father.

The propositions that emerge are that:

  1. a widow’s adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and was alive when the adoptive father breathed last.
  2. It is a rule of Hindu law that an adoption dates back to the date of the death of the father.
  3. There is no reason why an adopted son should be placed in position inferior to that of the posthumous son, the heir of a disqualified person and the absent coparcener.
  4. The right of the adopted son to demand partition has been recognised.
  5. As adoption divests an estate of inheritance , it would be unjust to the adopted son the right of claiming repartition when the rule of survivorship applies.
  6. An adoption made by a widow to her deceased husband after the death of the collateral does not entitle the adopted son to come in as an heir of the collateral. In 1954, the Supreme Court took the opposite view and held that property once vested in the collateral cannot be divested by the subsequent adoption.
  7. The principles of Relationship Back applies only when the claim made by the adopted son relates to the estate at his adoptive father and it is the interest of the adoptive father with the adopted son is entitled to take as on the date of his death. This principle does not apply when the claim made by the adopted son relates to the estate at the collateral. This is because inheritance can never be in abeyance, and that one’s it devolves on a person who is a nearest heir under the law; it is their after not liable to be divested.

The principle of Relation Back is subject to limitation by which if the property by inheritance goes to a collateral and a son is adopted after the death of the collateral, the adoption does not divest the property which has vested in the heir of the collateral. Where the child adopted is a coparcener in joint Hindu family his coparcenary interest will not migrate with him in the family of his adoption because coparcenary interest is not within the perview of vesting and divesting of property, as held by the Supreme Court in Vasant v. Dattu.

But the Andhra Pradesh High Court in Y.Nayudamma v Govt.of A.P2) held that the coparcener has got every right under Section 30 of the Hindu Succession Act to will away his property or to dispose of or alienate in whichever way he desired, which he is entitled by birth. It may be, that at a time when he alienated or willed away, there may not have been a definite demarcation of the sons; but certainly he would be entitled to a particular share along with other coparceners which could be given effect to by various modes of disposition. That presupposes that he had got an independent right by birth which might be dormant in certain cases and patent in other cases. From the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshara family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it.

It is submitted that this decision of A.P. High Court is in conflict with the decision of the Supreme Court in Vasant v Dattu and in Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe in which the vesting and divesting of property is held not to be applicable to the coparcenary interest in the joint Hindu family. Hence, the Y.Nayudamma decision of the A. P. High Court is not the correct law now after the Supreme Court's decision in Vasant and Dharma cases.

The Supreme Court has clarified the legal position as to the operation and scope of Section 12 clause (c) in D.S. Agalawe v. P.M Agalwe. In this case the Supreme Court has scanned the judicial opinions expressed in various decisions of the High Courts and the Supreme Court. The SupremeCourt clarified that the Sawan Ram's case only decided the relevant question that the adopted son of a Hindu Widow was in fact the adopted son of her deceased husband. As to the observation regarding provisions of Section 12 (c) the Supreme Court said that these observations were not necessary for deciding the case which was before the court they have to be held obiter dicta. The Supreme Court overruled the A.P. High Court decision in N. Hanumantha Rao v. N. Hanumayya in which the A.P. High Court had taken the view that the vesting and divesting aspect contained in Section 12 (c) have to be taken to apply to the case of survivorship also. The Supreme Court further approved the Bombay High Court decision given in Y.K. Nalavade's case, because that case was in conformity with the opinion of the Supreme Court in Vasant's case, in which the Supreme Court had observed as to the operation of proviso (c) of Section 12 that the vesting and divesting of joint family property is not covered by proviso (c) of Section 12, because introduction in the joint family of a coparcener either by birth or adoption does not involve fresh vesting and divesting of estate. The joint family property in a family governed by Mitakshara is always in the state of flux. Therein the interests of the coparceners increase by death of a coparcener and decrease by birth or adoption in the family. The Supreme Court also relied on the dictum in Sitabai v. Ramchandra that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the “temporary reduction of the coparcenary unit to a single individual”. The character of the property, that it was the joint property of a Hindu undivided family, remained the same.

The Karnataka High Court relying on Sitabai's case held that when on adoption the adopted child becomes a member of the adoptive family and all ties of the child in the family of his birth become completely severed and those are all replaced by those created by the adoption in the adoptive family, necessarily it follows that the plaintiffs 1 and 2 would be entitled to the share which the adoptive father, if he were to be alive would have been entitled to. The question of vesting and divesting does not arise as the joint family has continued and the properties are also continued to be joint family properties.

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1)
2003 2 SCC 111
2)
AIR 1981 AP 19 131


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