2017 (11) TMI 1868 - SC - Indian Laws

Adoption - Restraint on naming of a person - the 1st Defendant, who is the Appellant herein, was not the adopted son of late Govardhandas Laxmichand Samsuka and consequently the Appellant herein was permanently restrained from representing himself as son of Govardhandas and further restrained him from naming himself as Ratanlal Govardhandas Samsuka - Whether the person who alleges the existence of a custom need not prove the same because it is judicially accepted? - Whether the Appellant could plead and prove the factum of adoption? HELD THAT - A person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined Under Section 3(a), applicable to the parties which permits persons who are married being taken in adoption - India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met. The evidence as discussed makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plaintiff to prove the adoption which is contrary to law. The Appellant failed to satisfy the Court that any question of law much less substantial questions of law arise in this appeal which warrant interference of this Court. The view taken by the High Court, being convincingly reasonable - appeal dismissed.

Summary

Issues Involved:
1. Whether the person who alleges the existence of a custom need not prove the same because it is judicially accepted?
2. Whether the Appellant could plead and prove the factum of adoption?

Issue-wise Analysis:

1. Whether the person who alleges the existence of a custom need not prove the same because it is judicially accepted?

The Appellant argued that the custom of adopting married men in the Jain community is judicially accepted, thus requiring no further proof. The Court acknowledged that Jains are governed by the Hindu Adoption and Maintenance Act, 1956, which mandates that customs must be continuously and uniformly observed to gain legal force. The Court referenced Section 3(a) of the Act, which defines 'custom' and Section 10, which outlines conditions for adoption, including the prohibition of adopting married persons unless a custom permits it.

The Court emphasized that customs must be proven with certainty, continuity, long usage, and reasonability. It cited precedents, such as Thakur Gokal Chand v. Pravin Kumari, to highlight that customs must be proven with clear and unambiguous evidence. The Appellant failed to provide sufficient evidence to establish the custom of adopting married men in the Jain community. The Court concluded that the Appellant did not meet the burden of proof required to establish such a custom, thus ruling against the Appellant on this issue.

2. Whether the Appellant could plead and prove the factum of adoption?

The Appellant's claim of adoption by late Govardhandas was scrutinized based on the evidence presented. The Court noted that the Appellant's evidence primarily consisted of his testimony and that of a priest who allegedly performed the adoption ceremony. The Court stressed that the burden of proving adoption is heavy, especially in the absence of documentary evidence, and should be free from suspicion of fraud.

The Court reviewed the testimonies of various witnesses, including the Appellant and the priest, finding significant contradictions. For instance, the priest's statement about the adoption ceremony contradicted the Appellant's testimony regarding the seating on the lap of the adoptive father. Additionally, the Appellant continued to use his biological father's name in official documents, further casting doubt on the adoption claim.

The Court also noted that the Appellant failed to plead the existence of the custom of adopting married men in his written statement, which is crucial as parties are governed by their pleadings. The trial court had incorrectly placed the burden of proof on the Plaintiff, whereas it should have been on the Appellant to prove the adoption.

Given the inconsistencies and lack of cogent evidence, the Court found that the Appellant failed to prove the factum of adoption. Consequently, the Court upheld the High Court's judgment, dismissing the appeal and confirming that the Appellant was not the adopted son of late Govardhandas.

Conclusion:

The Supreme Court dismissed the appeal, affirming the High Court's decision that the Appellant failed to prove the custom of adopting married men in the Jain community and the factum of his adoption by late Govardhandas. The judgment emphasized the necessity of clear and unambiguous evidence to establish customs and adoptions, especially when they significantly alter succession rights.