1. This regular first appeal is directed against the judgment and decree of the learned Civil Judge. Sirohi, dated 9th September, 1966 decreeing the plaintiffs' suit for declaration that adoption of the appellant Dhanraj by Ami-chand was invalid. The appeal raises two points of law namely. (1) whether the step-mother is competent to give a person in adoption and (2) whether the adult person having no natural parents, can be taken in adoption.
2. In order to appreciate the controversy raised in this appeal relevant facts which are not in dispute may be given. Both the parties are Porwal Jains and are the residents of Pindwara in the District of Sirohi formerly Sirohi State. Amichand. the plaintiff took Dhanraj. the defendant in adoption with the consent of his wife Smt. Surajbai on 18th November, 1959 and executed a registered deed evidencing the factum of adoption. At that time Dhanraj was twenty-one years old. He had no natural parents but had a step-mother Smt. Bhuribai with whom he was residing at the relevant Dhanraj was given In adoption by Smt. Bhuribai. his step-mother and Amichand took him in adoption. The recital of the fact of giving and taking ceremony, of course, finds place in the said registered adoption deed. In short, it is not in dispute that Dhanraj was given in adoption by his step-mother Smt. Bhuribai. Sometime after the adoption in question, the adoptive parents did not reconcile themselves with the behaviour of the defendant-appellant and they wanted to disown the adoption. They consequently brought a suit for a declaration impeaching the defendant-appellant's adoption on the various grounds out of which one ground was that Dhanraj having been given in adoption by his step-mother his adoption to the plaintiffs was invalid.
3. The defendant resisted the plaintiffs' suit and contended in the written statement that his adoption was valid as the step-mother was competent to give him in adoption under the law. In all, six issues were raised on the pleadings of the parties out of which issue No. 1-A came to be framed on 27th April, 1966. Formerly, the case was fixed for the evidence of the parties but on account of the framing of issue No. 1-A on 27th April, 1966, this issue was taken as a preliminary issue. Counsel for both the parties expressed that they did not propose to lead evidence presumably on the ground that the issue was a legal issue. It is desirable to re-produce issue No. 1-A for ready reference :--
'whether the adoption of Dhanrai Is invalid on the ground that he has been given in adoption by his step-mother Mst. Bhuri Bai'.
4. The learned Civil Judge, after hearing the parties on this issue came to the conclusion that under the Hindu Law only natural parents of the adoptive son could give him in adoption and that the step-mother was not at all competent to give a person in adoption. The finding of this issue was recorded by the learned trial judge on 18th August. 1966. Thereafter the learned judge took up the issue No. 5 in respect of the recovery of ornaments of the value of Rs. 5.700/- and called upon the parties to lead their evidence on that issue and fixed the case for recording their evidence on 23rd September. 1966. The plaintiffs-respondents instead of leading their evidence on the point filed an application in writing on 20th August, 1966 in the trial Court intimating that they did not intend to press that issue and therefore that issue was decided against the plaintiffs. Eventually, the trial judge passed a decree for declaration in favour of the plaintiffs to the effect that the defendant-appellant's adoption is invalid and not binding upon the plaintiffs-respondents. However, the claim for the recovery of ornaments was dismissed for want of evidence.
5. Being aggrieved by the judgment and decree of the learned Civil Judge the appellant has brought this appeal impeaching the decree of the trial Court. It may be stated here that Amichand plaintiff-respondent died during the pendency of the appeal on 26th February, 1967 and Smt. Surajbai the only legal representative of the deceased Amichand being already on the record, the name of Amichand was ordered to be struck off by this Court on 20th March, 1967.
6. At the outset It may be ob-served that the parties litigated in the trial Court on the specific stand that the step mother was competent to give a stepson in adoption. The defendant never raised the issue that the giving and taking ceremony was not necessary in a case of en adoption of an adult person having no parents. Mr. Sumer Chand, however, while assailing the judgment of the trial Court addressed us on this point also on the ground that the point being a pure question of law could be urged by him. His principal contentions raised before us are (1) that the step-mother was competent to give a step-son in adoption; and (2) that at any rate the ceremony of giving and taking is not necessary in a case of an adoption of an adult person under the provisions of the Hindu Adoptions and Maintenance Act of 1956 (here-inafter referred as the Act). An ancillary argument was also raised that the learned trial judge was in error in deciding issue No. 1-A as a preliminary issue as it did not involve a pure question of law.
7. Taking up the first contention of the learned counsel for the appellant, it may be noticed that undoubtedly the defendant-appellant was not given in adoption by his natural parenits as they were already dead at that time. On the other hand, it is the admitted case of the defendant that he was given in adoption by his step-mother. According to Section 9 of the Act the primary right of giving a child in adoption vests in the father. However, if the father is dead or he has completely and finally renounced the world or has been declared by a Court of competent jurisdiction to be of unsound mind, the mother may give a person, in adoption. The argument of Mr. Sumer Chand is that the word 'mother' occurring in section of the Act embraces in its fold the step-mother also. In this connection he seeks to derive support to his argument with reference to Explanation to Section 9 of the Act where It has been mentioned that the expressions 'father' and 'mother' do not include an adoptive lather and an adoptive mother. The argument of the learned counsel is that Explanation (1) to Section 9 of the Act clearly excludes the adoptive father and mother from the terms 'father' and 'mother' used in Section 9 and the step-father and step-mother having not been excluded in this Explanation, by implication it should be held that the step-mother is competent to give the child in adoption.
We regret we are unable to accept this contention of the learned counsel. The reason for excluding adoptive father and mother specifically in the Explanation to Section 9 is understandable for the obvious reason that by virtue of Section 12 of the Act the adoptive child is deemed to be a child for all purposes with effect from the date of the adoption. This position does not hold good vis-a-vis the step-mother. Reference in this connection may be made to Explanation to Section 6 of the Hindu Minority and Guardianship Act wherein it has been expressly provided that the expressions 'father' and 'mother' do not include a step-father and a step-mother. This Explanation clearly suggests that the stepfather and step-mother are not considered the natural guardians. It will be pertinent to mention here that Section 7 of the Hindu Minority and Guardianship Act specifically lays down that the natural guardianship of an adopted son who is a minor passes, on adoption, to the ad-optive father and after him to the adoptive mother. There is no substance in the suggestion of the learned counsel ,witth reference to Explanation to Section 9 of the Act. The term 'father' and 'mother', in our opinion, have clear reference to the natural father and mother as contradistinguished from step-father and step-mother. Even if we look to the table of Heirs given in Schedule under Class II under Section 8 of the Hindu Succession Act. step-mother has been put in entry VI to Class II Heirs under the head 'Father's Widow', whereas the natural mother has been put in Class I heir in the said Schedule. Although the term 'mother' is generic but in its primary sense it connotes only the natural mother and the word 'step-mother' is used when the father's wife is intended to be denot ed. In our view the expression 'mother is used in primary sense only and does not include the expression 'step-mother'. The reason is obvious. The step-mother lacks that parental affection which exists in the heart of the natural mother. If the power to give in adoption is conceded in favour of the step-mother it is likely to open doors for manipulation in favour of her natural children by transferring the step-son belonging to affluent family into another family by way of adoption, and thus to exclude him from the right of the properties of the original family to the advantage of her own natural sons. Even under the old Hindu law the position is well established that the step-mother was not competent to give the child in adoption vide Papamma v. V. Appa Rau, (1893) ILR 16 Mad 384 and Haribhau Ganpatrao v. Ajabrao Ramji Ingole, AIR 1947 Nag 143. It is true that the Act both codifies and amends the law of adoption and has undoubtedly introduced radical changes in the prior law. Reference may be made to Section 4 which gives overriding effect to the provisions of the Act. A codifying statute does not. however, altogether obliterate the old law. From the perusal of Section 4 it follows that with respect to matters for which provision is made in the Act, the prior law ceases to have effect to the extent laid down in that section. As an inevitable corollary it also follows that in respect of matters for which no provision is made in the Act the old law must continue to remain applicable. Judged in this background we do not find anything in the Act to make e departure in this respect. In face of the old law, to the contrary, if the legislature had intended to make any departure from it, it would have certainly brought specific changes in that respect. We accordingly hold that the step-mother is not a competent person to give a child (which term means adult as well as a minor) in adoption. We are, therefore, disposed to hold that it is only the natural parents who are competent to give an adult in adoption and not the step-mother. We, therefore, overrule this contention of the learned counsel as untenable in law.
8. The learned counsel for the appellant being confronted with this proposition of law took shelter under an absolutely new plea (not at all raised in the pleadings of the parties) that in a case of en adoption of an adult person, the ceremony of giving and taking was not at all necessary. While elaborating this argument the learned counsel referred us to Sections 8, 9, 10 and 11 of the Act and urged that from e perusal of these sections it is clearly spelt out that the legislature did not make ceremony of giving and taking essentiel in a case of en adoption of an adult but thought fit to keep it necessary in case of a minor only. His contention is that the use of the expression 'child' in Section 11(g) of the Act clearly gives an indication to the legislative intent that the term has been used for minor persons only. He further submitted that the fact that the expression 'child' has been used in this relevant cleuse in respect of the essential dondition of giving and taking clearly establishes that the legislature only intended to prescribe the ceremony of giving and taking in a case of an adoption of a child (minor) only and not in a case of adoption of an adult
Before dealing with this argument of the learned counsel we wish to refer to some relevant provisions of the Act in-order to examine the validity of the argument of the learned counsel. Admittedly, Section 4 of the Act gives overriding effect to the provisions of the Act and inter alia does away with the opera-tion of any text, rule or interpretation of Hindu law or any custom or usage as part of that law prevalent immediately before the commencement of this Act and lays down that the same shall cease to have effect with respect to any matter for which provision is made in this Act. According to Section 5 the adoption after the commencement of this Act shall be in accordance with the provisions con-tained in this Chapter and any adoption made in contravention of the said provisions shall be void. Then, comes Section 6 which provides for four requisites of a valid adoption, namely (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 (iy) the adoption is made in compliance with the other conditions mentioned in this Chapter. The other conditions have got reference to Section 11 of the Act In Section 9 provisions have been made in respect of the persons who are capa-ble of giving in adoption. In this section primarily father and thereafter mother and in absence of the mother a guardian appointed by the Court has been held to be competent to give a child in adoption.
Learned counsel's emphasis is on the expression 'child' occurring in this section to seek assistance in support of his contention that the Act has provided for giving and taking ceremony in a case of adoption of a minor only and not in case of an adult person. In Section 10, of course, the word 'child' has not been used but the word 'person' has been used to make provisions for the persons who could be validly given in adoption. Mr. Sumer Chand seeks to suggest that the legislature having not used the word 'child' in Section 10 must have intended the expression 'child' occurring in Section 9 to limit to minor only and, therefore, it must follow that giving and taking ceremony was obligatory for the adoption of minors only. According to him Clause (vi) of Section 11 of the Act which deals with the ceremony of physical giving and taking of the child also limits the same to the adoption of minor persons only and does not envisage the same in the case of adoption of an adult person.
In the connection he invited our attention to Nanak Chand v. Chandra Kishore Agarwal, AIR 1970 SC 446, where the meaning of the word 'child' has been dealt with. In that case the meaning of the word 'child' has been explained by their Lordships of the Supreme Court while dealing with a case under Section 488, Criminal P. C. where also the word 'child' occurs in connection with maintenance of the child. While explaining the term 'child' their Lordships have extracted the observations of Beaumont. C. J. in Sk. Ahmed Sk. Mohd. v. Bai Fatma, ILR (1943) Bom 38 at P. 40 = (AIR 1943 Bom 48) as under :--
'The word 'child' according to its use in the English language has different meanings, according to the context. If used without reference to parentage, it is general synonymous with the word 'infant' and means a person who has not attained the age of majority .....where the word 'child' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age'.
Their Lordships agreed with this observation of Beaumont, C. J. and adopted the meaning of the word 'child' as given by him. We have, therefore, to find out the meaning of the word 'child' occurring in Section 11 (vi) of the Act. In order to appreciate the real controversy in issue we deem it desirable to quote the Clause (vi) of Section 11 of the Act :--
'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 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'. Undoubtedly, the word 'child' has been used in relation to parents as well as in relation to guardian disjunctively. The word 'child' has also been used in Sections 12 and 14 but on reading Sections 12 and 14 of the Act it appears that the term has been used to cover both minor as well as adult persons. In our opinion the word 'child' has been used in Sec-tion 11 (vi) with a wider amplitude with flexibility to include major as well as minor, so as to conform to both the situations, that is, adoption by the parents and by a guardian. Read in relation to the parents we are undoubtedly of opinion that the word 'child' will include maior as well as the minor persons and when read in relation to the guardian it will include, of course. minor persons only. The argument of the learned counsel appears to suffer from infirmity when it seeks to give the meaning to the word 'child' in the context of the guardian only and conveniently overlooks the use of the word 'child' used in Section 11(vi) in relation to parents. If we were to accept the contention of the learned counsel for the appellant that physical giving and taking was not necessary in case of adoption of an adult, it is likely to lead to absurd situation, inasmuch as an adoptive person even having infirm or impecunious parents could go in adoption to an affluent persons without the consent of his parents and by his unilateral act sever his ties with the natural family and avoid the liability of maintenance statutorily laid under the provision of Section 20 of the Act This in our opinion, could never have been the intention of the legislature. This interpretation is in harmony with the rest of the provisions of the Act. The main difficulty we feel in accepting the construction suggested by the learned counsel is that it completely stultifies Section 6 of the Act which being couched in negative terms is of a mandatory character. All the four conditions or requisites including the condition of giving by a competent person are cumulative and each must be complied with and are equally applicable to case of adoption of an adult (where permissible) and a minor. It is true that under the 'Kritrim' form an adult could have gone in adoption without the consent of his parents of his own volition. But even the Kritrim form was prevalent only under 'Mithila' school of Hindu law and its scope of operation was very limited. The effect of adoption under Kritrim form was significantly different from the one envisaged under this Act. Under the Kritrim form of adoption the adoptive son did not sever his ties with his natural family and even his rights in the adoptive familv were of a restricted nature as he was only entitled by way of inheritance to the estate of the adoptive parents.
9. The next argument of the learned counsel for the appellant is based on the challenge to the validity of Ss. 6, 9 and 11(vi) of the Act on the ground that the effect of these sections bring out discrimination between a minor orphan and an adult orphan in the matter of their eligibility for adoption. The argument of the learned counsel in substance is that if giving and taking are held to be essential for a valid adoption, then in any event, it will entail discrimination as the Act will permit the taking of a minor in adoption but deny the eligibility for adoption to an adult. It cannot be gainsaid that Section 6 makes it obligatory that there must be a person competent to give in adoption. Section 9 provides that in case of a minor the guardian duly appointed by a Court may give him in adoption with the sanction of the Court. According to Section 11(vi) of the Act, as we have already held, giving and taking is absolutely necessary for a valid adoption. In the view which we have taken the adoption of an adult orphan is not at all permissible as the necessary requirement of giving him by a competent person could not be complied with. The question, however, remains whether on this account the provisions of Sections 6, 9 and 11 of the Act would offend Article 14 of the Constitution. It may be noticed that under the Shastric law the adoption of an orphan was not at all permissible. However, the Shastric law came to be modified by customs in certain communities where the adoption of an orphan was permissible but such custom was limited to a small number of communities only. As already stated above, the Act is a codifying and amending one. The legislature must be aware of the legal impediment in the way of the adoption of an orphan. The legislature introduced certain reforms in the Act for the benefit of orphan minor who could now be taken in adoption. What the legislature has done is to remove the disability attaching to the adoption of a minor orphan and thus cleared the hurdle in the way of his/her adoption. It may be noticed that a minor may not be able to look after his interest and in some cases there might be no person even to maintain him but the same cannot be said for adult orphan who being sui juris could look after himself. The legislature, therefore, appears to have made a remedial provision in favour of the minor orphan permitting his giving in adoption by a duly appointed guardian with the sanction of the Court The orphan minors as a class are different from orphan-adults who could look after their own interest There is no discrimination inter se a class. It may be pointed out that the Parlia-ment may bring reforms at stages and if no provision has been made for the adoption of the orphan-adults that cannot be taken to be a case of discrimination. Moreover, Article 15(3) of the Constitution empowers the legislature to make special provisions for minors for their welfare. In any view of the matter, therefore, it cannot be said that the impugned provisions of the Act are in any way repugnant to Article 14 of the Constitution. We. therefore, are of opinion that the contention of the learned counsel on the ground of discrimination is devoid of force.
10. That brings us to the last contention of the learned counsel that issue No. 1-A should not have been tried as a preliminary issue. We may straightway state that the contention of the learned counsel is wholly untenable. We may in this connection advert to the provision of Rule 2 of Order 14 which lays down that where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issue of law only it shall try that issue first. Obviously, issue No. 1-A is an issue of law, the decision of which was likely to dispose of the whole suit. Procedure adopted by the learned trial Judge, therefore, cannot be said to be irregular, much less illegal.
11. In the result, the appeal has no force and is hereby dismissed. Nor-mally. a successful party should get its costs, but it seems to us that, in the cir-cumstances of the present case, it is unnecessary to award costs to the respond-ent. Accordingly, the parties will bear their own costs of this appeal.