Jamakhandi Residents Can Adopt Major Person, It's A Legally Recognized Custom: Karnataka High Court

The Karnataka High Court has directed the trial court to reconsider the petition filed under Section 8 and 9 of the Hindu Adoption and Maintenance Act, 1956, by a member of the Scheduled Caste community residing at Jamakhandi, seeking to adopt a 19 year old. A single judge bench of Justice Sachin Shankar Magadum said adopting a major child was a legally recognised custom in Jamakhandi governed by the Bombay School of Hindu Law

“If petitioners are permanent residents of Jamakhandi, then I am of the view that since there is no dispute that Jamakhandi which was erstwhile princely State and part of Bombay province, the custom of adopting a major child is judicially recognized and therefore, I am of the view that the proof of the said custom is not necessary.”

The petition was filed by Sharada Walagad and Shrishail Shankareppa who had challenged the trial court's order rejecting their application for adoption

The impugned order pertained to a plea filed under Sections 8 and 9 of the Hindu Adoption and Maintenance Act, seeking permission to allow Walagad to act as the guardian of Shankareppa and, consequently, to permit her to adopt Shankareppa. 

The petitioners, in this case, are residents of Jamakhandi, Karnataka. Petitioner no.1 was a retired government employee who claims to have lost her husband and has no biological children. Petitioner no.2 was a distant relative of petitioner no.1 and had lost both his parents during childhood. The petitioners initiated the petition, seeking permission for petitioner No.1 to adopt petitioner No.2. They cited a custom of adopting individuals aged over 15 years

The lower court dismissed the petition primarily because the petitioners failed to provide substantial evidence of the alleged custom of adopting individuals aged over 15 years, except for a newspaper publication. The trial court ruled that without proper evidence, their claim could not be substantiated.

The High Court, upon reviewing the petition, found that if the petitioners are permanent residents of Jamakhandi, which was historically part of the Bombay Province and followed the Bombay School of Hindu Law (Mayukha), then the custom of adopting a person aged over 15 years is judicially recognized. The High Court emphasized that the practice is based on interpretations of original texts and not subject to the age restrictions imposed by Section 10 of the Act.

“Though Section 10 of the Act creates age bar under sub-section (iv) to Section 10 of the Act, however it does not apply to the parties who are governed under Bombay School of law. What is saved by the section is the custom as to adoption and not any rule of law permitting in adoption of a person who has completed 15 years of age.”

Noting that the relaxation in Bombay School of Law regarding the age is traceable to the interpretation of original texts, viz., “Vyavahara Mayukha” and the said practice is interpreted by the High court of Bombay

Relying on the Supreme Court judgment in Ratanlal @ Babulal Chunilal Samsuka vs. Sundarabai Govardhandas Samsuka & Ors, wherein the court held that the custom commands legitimacy not by authority of law but from public acceptance and acknowledgment. The ingredients necessary for establishing valid custom are continuity, certainty, long usage and reasonability.

“If petitioners are found to be permanent resident of Jamakhandi Taluk, which is admittedly 1 (2018) 11 SCC 119 7 a part of Bombay Province, then I am of the view that the custom permits a party to adopt a person aged above 15 years. Therefore, the learned Judge erred in rejecting the petition on the ground that no evidence is adduced to substantiate that there is custom of adopting a major person.”

Accordingly, remitting the matter back to the trial court, it directed the court to examine the judgments rendered by the Bombay High Court and pass fresh orders in accordance with law, within a period of eight weeks.

Appearance: Advocate Saurabh A Sondur for Petitioners.

Citation: 2023 LiveLaw (Kar) 386 

Case Title: Sharada Hanamanth Walagad & ANR AND NIL

Case No: W.P. NO. 104785 OF 2023