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TMI Blog1994 (6) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts have, therefore, been to approach the questions relating to marriage and sonship ut res magis valeat quam pereat so that both marriage and sonship may flourish and not perish. As early as in 1869, the Privy Council declared in Inderun v. Ramaswamy, 13 MIA 141 that once you get that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. Courts used to have drawn extremely strong presumption in favour of legitimacy of children even before Section 112 of the Evidence Act enacted in 1872 providing to the effect that a child born to a woman shall be conclusively presumed to be the legitimate child of herself and her husband, unless non-access between the parties at the relevant time stares at the face. As to sonship by adoption, a Division Bench of the Calcutta High Court ruled in 1891 in Surendra Nandan v. Sailaja Kant, ILR 18 Cal 385 , that a Court, far from being too astute to defeat an adoption, should rather do its utmost to support it and this view appears to have been approved by the Privy Council in 1906 in K. Suryanarayana, 33 IA 145. Even in 1933 in Amarendra Mansingh, 60 IA 242, accepted by a seven-Judge Bench of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has supplanted it in many places, had, while accepting the text of Vasistha prohibiting giving or taking in adoption by a woman without consent of the husband, construed the same to mean that such consent would be necessary only when the husband is living and, therefore, a widow would require no authority from the deceased-husband or the consent of her husband's Sapindas to enable her to adopt to her husband, as in some of the other Schools. In the case at hand, therefore, the parties being governed by the Maharashtra School of Hindu Law, the widow Manjulabai could in law take in adoption without any authority from her husband or the consent of her husband's Sapindas. 6. But could the widow Manjulabai adopt when her pre-deceased son had left his own widow? I thought the law on the point to be well settled, not so much by the Shastric texts, but by the judicial decisions spreading over more than a century, that if there was a son and the son died leaving his own son or his own widow, the power of the mother to take in adoption would come to an end and would not revive even on the death of that son's son or the son's widow. In the Full Bench decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to be revived even on the death of son's widow or son's son. A fortiori, therefore, the remarriage of such a widow daughter-in-law also would make no difference as such remarriage, at its most, is no worse than death of that daughter-in-law vis-a-vis her former husband's family. That is why it has been ruled by the Supreme Court in Ashabai Kate, [1989]176ITR435(SC) , following Gurunath (supra) and the Bombay Full Bench decision in Ramkrishna Ramchandra (supra), that even remarriage of the daughter-in-law would not empower the mother-in-law to adopt even though the deceased son had no son and the daughter-in-law has, by her remarriage, incapacitated herself to continue the line of her former husband by adoption or otherwise. If I were going to decide the question, I would have held, following the decision of the Full Bench of this Court in Ramkrishna Ramchandra (supra) and the decisions of the Privy Council and of the Supreme Court referred to hereinbefore, that the widow Manjulabai had no power to adopt because of the existence of the daughter-in-law and even her remarriage before the date of the alleged adoption would not have changed the position. Be it, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Sahebrao Madhavrao AIR1962Bom1 (supra) and Vaijoba AIR1974Bom111 (supra), whatever his own view may be and not according to his own reading of the decision of the Supreme Court in Gurunath (supra). The law declared by the Supreme Court is no doubt of paramount precedence and is binding on all the Courts notwithstanding any decision to the contrary of the High Court to which a Court may be subordinate. This would have been the position even without Article 141 of the Constitution because of the precedent-oriented system of our judicial administration received by us from the Britishers and followed by us with utmost devotional rigidity. Article 141 was necessary, not so much for making the decisions of the Supreme Court binding on all other Courts, but to enable the Supreme Court to depart from any pre-constitution decision of the Privy Council which would have otherwise continued ,under Article 372 of the Constitution as the laws in force to be binding even on the Supreme Court and Article 141 clothes the Supreme Court to alter such law as envisaged in Article 372 itself. There should be no doubt that when faced with contrary decisions of the Supreme Court and the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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