BEFORE THE HON’BLE HIGH COURT OF _____

CIVIL APPEAL NO. /OF

--IN THE MATTER OF--

ARUNA AND KAUSHAL ..................................... APPELLANT(S)

VERSUS

MALA AND BALRAJ ................................................ RESPONDENT(S)

MOST RESPECTFULLY SUBMITTED BEFORE THE HONORABLE HIGH COURT OF_____

MEMORANDUM ON BEHALF OF APPELLANT DRAWN AND FILED BY THE COUNSELS OF

THE APPELLANT.

Submitted by

Vaishnavi Dasari
Roll No - 184

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 MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

[1]. LIST OF ABBRIVATIONS…………………………………………………………………………………..

[2]. INDEX OF AUTHORITIES………………………………………………………………………………….

[3]. STATEMENT OF JURISDICTION……………………………………………………………………….

[4]. STATEMENT OF FACTS…………………………………………………………………………………..

[5]. STATEMENT OF ISSUES………………………………………………………………………………….

[6]. SUMMARY OF ARGUMENTS…………………………………………………………………………

[7]. ARGUMENTS ADVANCED………………………………………………………………………………

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 MEMORIAL ON BEHALF OF THE APPELLANT

LIST OF ABBREVIATIONS

S.No ABBREVIATION EXPANSION

1. AIR All India Report

2. Anr Another

3. Art. Article
4. Bom Bombay

5. S Section

6. Hon’ble Honorable

7. SC Supreme Court

8. SCC Supreme Court Cases

9. PIL Public Interest Litigation

10. IPC Indian Penal Code

11. CrPC Code if Criminal Procedure
12. Ors Others

13. SUPP Supplementary

14. U.O.I Union of India

15. v. Versus
16. Vol. Volume

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 MEMORIAL ON BEHALF OF THE APPELLANT

INDEX OF AUTHORITIES

I. LIST OF STATUTES

1. HINDU ADOPTION AND MAINTENANCE ACT, 1956

2. THE INDIAN EVIDENCE ACT, 1872

II. LIST OF CASES REFERRED

S.NO. CASES CITATION

1. Lakshman Singh v. Rup Kanwar (1962) 1 SCR 477

2. Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244

3. Daulat Rao Jai Ram Ji v. Harish Chandra and Others (1973) 2 SCC 307

4. Y. Nayudamma v. Government of Andhra Pradesh AIR 1981 AP 19

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LIST OF BOOKS REFERRED

S.NO BOOK TITLE

1. Satyajeet A Desai (ed.), Principles of Mulla’s Hindu Law

2. Dr. Paras Diwan, Law of Adoption, Minority, Guardianship & Custody
3. Justice Ranganath Mishra & Dr. Vijender Kumar (eds.), Mayne’s Hindu Law & Usage

Online Reference

1. https://www.hcch.net
2. http://www.un.org
3. https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/
4. www.scconline.com

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STATEMENT OF JURISDICTION

The applicant humbly submits to the jurisdiction of this Hon’ble High Court under Sec. 96 of
the Code of Civil Procedure, 1908. The present petition sets forth the facts, contentions, and
arguments in the present case.

Section 96 of the CPC confers a right of appeal. It reads as under:

96. Appeal from Original decree. - (1) Save where otherwise expressly provided in the body
of this Code, or by any other law for the time being in force, an appeal shall lie from every
decree passed by any court exercising original jurisdiction to the court authorized to hear
appeals from the decisions of such court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.

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STATEMENT OF FACT

• Anup and Aruna, both Hindus, got married in 1977.

• In 1978, they had a daughter named Mala.
• In 1980, a son named Rishi was born to them but unfortunately, he died when he was just two
years old.
• In 1983, Aruna gave birth to another son, Krishna, who also lost his life in a road accident just
as he turned five years old. The couple was completely devastated.
• In 1990, yet another son was born to them. He was named Kaushal.
• Having lost two sons, the couple was extremely fearful and they did not want Kaushal to meet
the same fate. They consulted an astrologer for the purpose of securing the wellbeing of this child.
The astrologer advised the couple to give away the child in adoption to a person of the lower caste
if they wanted him to survive.
• Being afraid of losing their only son for a third time, the couple decided to give Kaushal in
adoption to their sweeper, Gayatri Devi, a 50-year-old childless widow.
• In a formal ceremony, Kaushal was given to Gayatri Devi by Anup and Aruna and was taken by
Gayatri Devi. Thereafter, she gave him back to the couple for bringing him up as she did not have
the means to do so.
• Gayatri Devi kept visiting them regularly and had good relations with Kaushal till he was ten
years old, when she died.
• In the meanwhile, in 1994, another son was born to the couple and he was named Balraj.
• The fact of adoption of Kaushal was treated by Anup and Aruna as only a formality to save his
life and he was brought up by Anup and Aruna as their son with Mala and Balraj.
• In 2012, Anup died intestate.
• Aruna decided to divide the property in four equal shares, one each for herself, Mala, Kaushal
and Balraj. Mala and Balraj objected to it and demanded 1/3 share in the property as they claimed
that Kaushal had no right having been given in adoption to Gayatri Devi.

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• Mala and Balraj did not pay any heed to Aruna’s pleas that the adoption was a mere ritual carried
out on the advice of the astrologer to save Kaushal’s life and was done without any intention to
give him up. They maintained that the adoption was legal and complete when Kaushal was given
and taken in adoption with a free will.
• In furtherance of their claim, Mala and Balraj filed a suit for division of property and declaration
that Kaushal was not an heir to any property of Anup in the absence of a will.
• The lower court decreed in favor of the plaintiffs.
• Aruna and Kaushal have filed an appeal against the order, asking for an equal share to Kaushal in
the suit properties being the natural son of Anup and Aruna.

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STATEMENT OF ISSUES

ISSUE I :

WHETHER THE IMPUGNED ADOPTION OF KAUSHAL BY GAYATRI DEVI

FULFILLS THE REQUIREMENTS UNDER THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956 TO EFFECTUATE A VALID ADOPTION?

ISSUE II :

WHETHER THE ADOPTION OF KAUSHAL CAN BE HELD TO BE VALID AND

BINDING, BEING CONTRARY TO THE PRINCIPLE OF BEST INTERESTS OF THE
CHILD?

ISSUE III:

WHETHER CONSENT GIVEN UNDER THE APPREHENSION OF A MIS-

HAPPENING BE CONSIDERED FREE CONSENT?

ISSUE IV:

WHETHER KAUSHAL IS ENTITLED TO A SHARE IN THE PROPERTY OF HIS

NATURAL FATHER, ANUP?

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SUMMARY OF ARGUMENTS

Issue I: THAT THE ADOPTION OF KAUSHAL BY GAYATRI DEVI DOES NOT FULFIL THE
REQUIREMENTS UNDER THE HINDU ADOPTION AND MAINTENANCE ACT, 1956 TO
EFFECTUATE A VALID ADOPTION.
The adoption was invalid as the parents of Kaushal never had the intention of
transferring the boy from his natural family. The giving and taking of the adopted boy
must be accompanied with such an intention, as is the requirement under Sec. 11(vi),
HAMA, 1956.

Issue II : THAT THE ADOPTION OF KAUSHAL CANNOT BE HELD VALID AND BINDING,
BEING CONTRARY TO THE PRINCIPLE OF BEST INTERESTS OF THE CHILD.
An adoption that puts the child in situation of deprivation cannot be held valid and
binding, being contrary to the principle of Best Interests of the Child. Article 3, Para 1
of the UN Convention on the Rights of the Child, 1989 states that in all actions
concerning children, the best interests of the child shall be a primary consideration.
India ratified the Convention in 1992 and is bound by it.

Issue III- WHETHER CONSENT GIVEN UNDER THE APPREHENSION OF A MIS-

HAPPENING BE CONSIDERED FREE CONSENT.

The consent, if any, was vitiated due to a mistaken belief as to the nature of the
religious ceremony. The ceremony was a mere formality, followed by the parents on
the advice of the astrologer and cannot be held to have changed the status of the boy.
After the ceremony, Kaushal was given back to Anup and Aruna by Gayatri Devi.
Therefore, the ceremony was only a farce which the anxious parents believed would
safeguard the life of their precious son.

Issue IV - THAT KAUSHAL IS ENTITLED TO A SHARE IN THE PROPERTY OF HIS NATURAL

FATHER ANUP.

The adoption of Kaushal being invalid, he continues to be the son of his natural
parents and is entitled to a share in their property. Moreover, if the interest in the
natural family is coparcenary interest, the adopted child has a vested interest in it by
birth which cannot be divested even on adoption.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE IMPUGNED ADOPTION OF KAUSHAL BY GAYATRI DEVI

FULFILLS THE REQUIREMENTS UNDER THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956 TO EFFECTUATE A VALID ADOPTION?

The appellants humbly submit that the adoption of Kaushal by Gayatri Devi does not fulfil the
requirements under the Hindu Adoption and Maintenance Act (HAMA), 1956 and is hence not a
valid adoption.

REQUISITES OF A VALID ADOPTION UNDER THE ACT

1) The person adopting must have the right to take and be lawfully capable of taking a son or
daughter in adoption (Ss 6, 7, 8).
2) The person giving in adoption must be lawfully capable of doing so (Sec. 9).
3) The person adopted must be lawfully capable of being taken in adoption (Sec. 10).
4) The conditions relating to adoption including actual giving and taking of a child with the
intention of transferring the child from the family of its birth must be complied with [Sec.
11(vi)].
(1.1) That the intention to give the child in adoption was absent.
The requirement laid down in Section 11(vi) of the HAMA, 1956 of actual giving and taking of
the child with the intention of transferring the child from the family of its birth is absent in the
present case.

The appellant Aruna and her deceased husband Anup had never intended to give up their only son
Kaushal, born after much hardship, in adoption. In fact, the so-called ‘adoption ceremony’ was, in
their view, an attempt to secure the life of their child. It was a mere ritual undertaken by them on
the advice of an astrologer. The ceremony was carried out only for spiritual purposes and not to
alter the legal status of the parties.

Given the peculiar circumstances of the case and the mental trauma and agony that Aruna and
Anup suffered due to the early loss of two of their sons, the ceremony wherein the couple is
alleged to have given Kaushal in adoption to their sweeper Gayatri Devi, should not be
considered as a valid act of adoption.

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Kaushal, being the only son of the couple at the time, it is highly unlikely that Anup and Aruna
ever intended to give him in adoption, in the sense in which the term is legally construed. Courts
have also taken a strict view where adoption of an only son is concerned. It is recognized that
among Hindus, a peculiar religious significance has attached to the son. Ancient texts also lend
support to this view. Vasistha wrote that an only son should not be given or received in adoption
for he must remain to continue the line of ancestors.

It is humbly submitted that in the present case, Kaushal was given under the belief that the
ceremony was only a religious ritual aimed at saving the life of their son. As held in Lakshman
Singh v. Rup Kanwar, the ceremony of giving and taking, is very essential for the validity of an
adoption. What is to be noted in the present case is that after the giving and taking of the child in
the ceremony, Kaushal was given back by Gayatri Devi to Anup and Aruna and he was brought
up by the couple as their child, along with Mala and Balraj. Such an arrangement is unique and is
never seen in instances of actual adoption, where the child is completely cut off from his natural
parents. This is a crucial fact, which shows that the adoption ceremony was a mere sham, post
which the parties reverted back to their original setup.

Also, in Section 50 of the Indian Evidence Act, 1872- Opinion on relationship, when
relevant- it is said that when the court has to form an opinion as to the relationship of one person
to another, the opinion, expressed by conduct, as to the existence of such relationship, or any
person who, as a member of the family or otherwise, has special means of knowledge on the
subject, is a relevant fact.

In the present case, the conduct of the parties throughout did not convey that Kaushal had been
given in adoption or that he had ceased to be the son of Anup and Aruna. This is a relevant fact
which points towards the conclusion that the relationship of Anup and Aruna with Kaushal
continued to be that of parents and child.

After the ceremony, Gayatri Devi did come to meet Kaushal every month but it was nothing more
than an expression of her love and affection for the child. Also it has to be noted that Anup and
Aruna continued to look after and provide for every need of Kaushal. Had the adoption been valid
and proper, Anup and Aruna would not have been required to provide for the child.

Importantly, there is no adoption deed. Therefore, presumption under Section 16, HAMA, 1956
that the adoption was validly made in compliance with the 1956 Act does not arise. Apart from
the parties involved, there were no witnesses to the ceremony also. In such a scenario, when the
mother of the child itself is denying the fact of adoption, there is no reason to disbelieve her.
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It would be gross injustice if, against the wishes of the parents, their child is declared to be the
son of another and, for this reason, is stripped of the rights and privileges which belonged to him
as the son of his natural parents. Such a view militates against all conceptions of child rights.

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ARGUMENTS ADVANCED

ISSUE II: THAT THE ADOPTION OF KAUSHAL CANNOT BE HELD VALID AND BINDING,
BEING CONTRARY TO THE PRINCIPLE OF BEST INTERESTS OF THE CHILD.

Further, it is humbly submitted that an adoption that puts the child in situation of deprivation
cannot be held valid and binding, being contrary to the principle of Best Interests of the Child.
This principle is contained in several international Conventions, the most important of which is
the UN Convention on the Rights of the Child, 1989.

“In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.” Convention on the Rights of the Child (Art. 3,
para.1)

Article 21 of the UN Convention specifically refers to adoption. It states that:- States Parties
that recognize and/or permit the system of adoption shall ensure that the best interests of the
child shall be the paramount consideration.

Article 4 of the Convention provides that the state parties should review their legislation and
ensure that their laws are consistent with the Convention. On 11 December 1992, India ratified
the Convention and acquired an obligation to ensure that the rights enshrined under the
Convention are protected in the country.

The Committee on the Rights of the Child has further elaborated on the Best Interest of the
Child principle. The Committee has identified Art. 3, Para 1 as general principles of the
Convention for interpreting and implementing all the rights of the child.

The Committee underlines that the child’s best interests is a threefold concept:

(a) A substantive right: it is the right of a child to have his or her best interests assessed and
taken as a primary consideration when different interests are being considered in order to reach
a decision on the issue at stake.

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(b) A fundamental, interpretative legal principle: if a legal provision is open to more than one
interpretation, the interpretation which most effectively serves the child’s best interests should
be chosen.

(c) A rule of procedure: whenever a decision is to be made that will affect a child, a group of
children or children in general, the decision-making process must include an evaluation of the
possible impact of the decision on the child or children concerned.

In this case, due to the early loss of two sons of Anup and Aruna, the couple was in a state of
anxiety and they feared that their third son might meet the same fate as the first two. They had
become extremely superstitious and wanted to take all possible measures to protect the life of
their third son. It is in this background that their act should be seen. By performing the adoption
ceremony, the couple was not relinquishing their son. The act was, for them, only an attempt to
safeguard the life of their precious son. This arrangement was made clear to Gayatri Devi as
well, who agreed to take part in the ceremony with the understanding that it was a mere ritual. It
wont be right to change the status of a child irrevocably just by mere performance of a religious
ceremony. That too, when the parties to the ceremony did not intend to do so. This certainly will
go against the spirit of the principle of the Best Interests of the Child.

In Lakshmi Kant Pandey v. Union of India, The court suggested a number of details to be
assessed to see whether the parent wishing to take a child in adoption is fit and suitable for the
purpose and whether the child will be able to fit into the environment of the adoptive family and
the community in which it lives. Some of those details are enumerated below:
1. Social status and family background
2. Accommodation for the child
3. Schooling facilities
4. Amenities in the home
5. Standard of living as it appears in the home
6. Type of neighborhood

In the case of Kaushal, it can be easily concluded that his natural parents would fare much better
on these parameters compared to Gayatri Devi. They would be able to provide him a better and
healthier environment for growing up. As the purported adoption in favor of Gayatri Devi
would put Kaushal in a situation of deprivation, the court must act as parens patriae and hold the
adoption invalid on this ground also, being against the principle of Best Interests of the Child.
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ARGUMENTS ADVANCED

Issue III – WHETHER CONSENT GIVEN UNDER THE APPREHENSION OF A MIS-

HAPPENING BE CONSIDERED FREE CONSENT.

Every valid adoption implies the free consent to the adoption of the person giving and the person
receiving in adoption. Where the consent to an adoption is obtained by misrepresentation,
coercion, fraud, undue influence, or mistake, the consent is not free, and the adoption is voidable
at the option of the party whose consent was so obtained.

It is humbly submitted that in the present case, the consent of the Anup and Aruna was given
under the belief that the ceremony was only a religious ritual aimed at saving the life of their son.
As after facing two consecutive losses the parents were worried if Kaushal might meet the same
fate and hence they were looking for ways to protect their child.

We would like to call upon the attention of this hon’ble court on the intent and purpose of the
parents behind the said adoption which was to keep their child safe from any mishap and not to
actually give away the child. Due to the early loss of two sons his natural parents had become
extremely superstitious and wanted to take all possible measures to protect the life of their third
son and hence they had decided to do the ritual.

The ceremony was a mere formality followed by the parents on the advice of the astrologer and
cannot be held to have changed the status of the boy as after the ceremony, Kaushal was given
back to Anup and Aruna by Gayatri Devi. Therefore, the ceremony was only an act which the
anxious parents believed would safeguard the life of their precious son.

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The said adoption was done only for the safety of the child and the same was explained and
understood by the Gayatri Devi also. And the very fact that she returned the child back to the
family and the family took him back and raised him as their own says alot about their intention
behind the adoption. Hence as the consent of the parents at the time of adoption was given under
duress and under the apprehension of a mishap, the consent cannot be said as valid consent.

And also the requirements laid down in Section 11(vi) of the HAMA, 1956 of actual giving and
taking of the child with the intention of transferring the child from the family of its birth are
absent in the present case the said adoption cannot be held as valid.

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ARGUMENTS ADVANCED

Issue IV - THAT KAUSHAL IS ENTITLED TO A SHARE IN THE PROPERTY OF HIS

NATURAL FATHER ANUP.

In Daulat Rao Jai Ram Ji v. Harish Chandra and Others, it was held that the burden of
establishing that there was a valid adoption which deflected the ordinary course of
succession is undoubtedly on the party who pleads the case of adoption.

It has been established that the burden of proving the validity of adoption is on the party
who pleads the case of adoption. It is pleaded that this burden has not been sufficiently
discharged by the Respondents in the present case, as there is no registered deed or evidence
of witnesses, which could have made the intention of the parties clear. Apart from Kaushal,
the only witness alive being Aruna, it is reasonable to rely on her account and to declare the
adoption invalid.

The effect of an invalid adoption is given in Section 5(2), HAMA, 1956 i.e an adoption,
which is void, does not affect the status or rights of any of the parties (emphasis added). It
creates no rights in favor of the adoptee in the adoptive family. Nor does the adoptee lose
any rights in the family of his or her birth.

The adoption of Kaushal being invalid, he remains the son of his natural parents Anup and
Aruna, and has full rights to succeed to their property. Moreover, the nature of the property
which Anup left behind on his death has not been specified. If the property was ancestral,
Kaushal would have a vested interest in it before adoption and even on adoption, the interest
would remain vested in him [Section 12 Proviso (b), HAMA]. He cannot be divested of it
just because he has gone to another family on adoption.

Also, in Y. Nayudamma v. Government of Andhra Pradesh, the High Court of Andhra

Pradesh has held in favor of the view that when a coparcener is given in adoption, his
undivided interest in the coparcenary property would continue to vest in him even after
adoption by virtue of Proviso (b) to Section 12. This view is in consonance with the
principle of the Best Interests of the Child.

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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced, authorities cited and pleadings
made, it is most humbly and respectfully requested that this Hon’ble Court may be pleased to
adjudge and declare that:

1. That the adoption of Kaushal by Gayatri Devi did not fulfil the requirements under HAMA,
1956 and is hence not a valid adoption.

2. That the adoption being contrary to the principle of Best Interests of the Child cannot be held
valid on this ground as well.

3. That Kaushal, still being the son of his natural parents, is entitled to inherit the property of
Arun.

And pass any other order as the Court deems fit and proper.

All of which is respectfully submitted and affirmed.

Date:

(Counsels for the Appellants)

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