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Sukumari Bewa, Minor by Her Father and Guardian Chema Malia Vs. Ananta Malia and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal168
AppellantSukumari Bewa, Minor by Her Father and Guardian Chema Malia
RespondentAnanta Malia and anr.
Cases ReferredBehari Lai Mullick v. Indramani Chowdhrani
Excerpt:
hindu law - adoption--validity of adoption by a sudra leper in bengal--religious ceremonies, competency to perform. - .....recover possession of the property of her deceased husband, held by a person who claimed to be her husband's adopted son. the plaintiff did not appear on the day fixed for the hearing of the case and no witnesses were produced on her behalf. the munsif, therefore, proceeded to take the evidence of the defendants' witnesses, and upon the evidence he found that the adoption had not been proved.2. on appeal to the district judge, that officer held that the adoption had been proved, and he, therefore, dismissed the suit.3. now the plaintiff has appealed to this court, and on her behalf two grounds have been taken: first, that the court below has erred in law in holding that adoption by a leper is valid; and secondly, that the lower appellate court was wrong in not remanding the case to give.....
Judgment:

1. The suit out of which this appeal arises was one brought by a widow to recover possession of the property of her deceased husband, held by a person who claimed to be her husband's adopted son. The plaintiff did not appear on the day fixed for the hearing of the case and no witnesses were produced on her behalf. The Munsif, therefore, proceeded to take the evidence of the defendants' witnesses, and upon the evidence he found that the adoption had not been proved.

2. On appeal to the District Judge, that officer held that the adoption had been proved, and he, therefore, dismissed the suit.

3. Now the plaintiff has appealed to this Court, and on her behalf two grounds have been taken: First, that the Court below has erred in law in holding that adoption by a leper is valid; and secondly, that the Lower Appellate Court was wrong in not remanding the case to give the plaintiff an opportunity of examining her witnesses.

4. With regard to the first point we need only say that the decision of the Judge seems to be correct. He says: 'The law appears to be that a leper cannot perform, any religious ceremony, but, as no such ceremonies are necessary for an adoption among Sudras, a Sudra leper may adopt a child by purely civil rites.' That seems to us a correct exposition of the law, and nothing has been shown to us to-day to lead us to think that the Lower Appellate Court's decision is wrong. According to Mayne's Hindu Law and Usage, paragraph 99, it seems as if a leper may adopt. There are certain cases in which it is laid down that his right to adopt depends upon whether his disease is such as to be inexpiable. But such a point seems not to have been raised in the Court of First Instance and there was apparently no contention in the Court of First Instance that the husband of the plaintiff was in such a state as not to be able to adopt at all. On the contrary, it was only in this Court that this contention was raised for the first time. In support of the Judge's view that the leper being a Sudra did not require to perform any religious ceremonies, we may cite the Full Bench case of Behari Lai Mullick v. Indramani Chowdhrani (1874) 13 B.L.R. 401 : 21 W.R. 285 in which it is ruled that among the Sudras of Bengal no ceremonies, in addition to the giving and taking of the child, are necessary to constitute a valid adoption. * * * * * *

5. The appeal is dismissed with costs.


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