Hindu woman's life estate has been enlarged into full ownership under the Hindu succession Act 1956. State the provisions of law and comment

Section 14 of the Hindu Succession Act 1956 states that any Property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner. In this subsection, Property includes both movable and immovable Property acquired by a female Hindu by inheritance or devise or at a partition or in lieu of maintenance or by gift from any person whether a relative or not before at or after her marriage or by her own skill or in any other way.

Section 14(2)states that nothing contained in subsection (1) shall apply to any Property acquired by way of gift or under a decree or order of a civil court or under an award where the terms of the gift, a will or other instruments or the decree or award prescribe a restricted estate in such Property.

Provision of law
Any Property inherited by a female Hindu from her husband or from her father in law shall devolve in the absence of any son or daughter of the deceased including the children of any pre-deceased son or daughter not upon the other heirs referred to in subsection (1) in the order specified therein.

The explanation here have been in the widest possible terms and must be liberally construed in favour of the females so as to advance the subject of the 1956 Act and promote the socio economic ends sought to be achieved by this long needed legislation.

Section 14(2) is in the nature of a provision and has a field of its own without interfering with the operation of section 14(1) materially. The provision should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by section 14(1) or in a way so as to become totally inconsistent with the main provisions.

Moreover, it applies to instruments, decrees, awards gift etc which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse or recognize pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and section 14(1) will not operate in this sphere.

However, an instrument merely declares or recognizes a pre-existing right such as to a claim to maintenance or partition or share to which the female is entitled the subsection has absolutely no application and the females limited interest would automatically be enlarged into an absolute one by force of section 14(1) V Tulasamma and Ors Vs V Sesha Reddi (dead) by L. Rs Air 1944 1977 Scr (3) 261. At the time of his death, the appellant�s husband who was the brother of the respondent lived in a state of jointness with the respondent.

On her husband�s death, the appellant filed a petition for maintenance. The respondent entered into a compromise with her, one of the terms of which was that the appellant should enjoy during her lifetime certain properties given to her and on her death those properties should revert to the respondent.

The appellant sold some of the properties. The District Munsiff decreed the suit. On appeal, the district judge held that by virtue of the provision of the 1956 Act, the Appellant has acquired an absolute interest in tge properties and that section 14(2) has no application to the case because the compromise was an instrument in recognition.

Holding of Property
There are adequate proofs in the historical Vedas and commentaries which justify that women were capable of holding the Property. However, practically, they were not given any such rights. Moreover, transactions done by them were considered to be invalid. Their Property was bifurcated into stridhan and non-stridhan. The former was further divided into saudayika and non-saudayika.

Saudayika Property
Women had absolute ownership over saudayika Property. Such Property included gifts by her husband, parents, or other family members.

Non-saudayika Property
Women had limited ownership over their non-saudayika Property after marriage and consent of husband was necessary for alienation. Such Property included gifts by non-relatives.

Non-stridhan Property
These included gifts or Property inherited by her through a male or female relation. She had limited rights over it as she could only use such Property but had no right to alienate it. Such Property would devolve on her.

In the explanation, it explicitly states all types of Property by whatsoever name it may be called. It states:
"Property" includes both movable and immovable Property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by a gift from any person, whether a relative or not, before, at or after her marriage, or by her skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such Property held by her as stridhana immediately before the commencement of this Act."

Thus, with the introduction of the Hindu Succession Act, 1956, a Hindu woman now had absolute ownership of any Property that she possessed. This meant that now, there was no difference between her saudayika Property, non-saudayika Property, and non-stridhan Property. Thus, even in cases of Property other than saudayika Property, she no longer needed her husband�s consent or to follow any restriction.

In the explanation, it explicitly states all types of Property by whatsoever name it may be called. It states:
"Property" includes both movable and immovable Property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by a gift from any person, whether a relative or not, before, at or after her marriage, or by her skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such Property held by her as stridhana immediately before the commencement of this Act."

Thus, with the introduction of the Hindu Succession Act, 1956, a Hindu woman now had absolute ownership of any Property that she possessed. This meant that now, there was no difference between her saudayika Property, non-saudayika Property, and non-stridhan Property. Thus, even in cases of Property other than saudayika Property, she no longer needed her husband's consent or to follow any restriction.

A son is adopted by a widow after several years of the death of her husband. Would he be the son of the widow alone or as well as of her husband. Section 12 of the Hindu adoption and maintenance Act 1956 state that an adopted child should be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date all the ties of the child in the family of his or her birth shall be deemed to be severed. Where a widow or unmarried woman adopts a child, any husband whom she married subsequently shall be deemed to be the step father of the adopted child.

Adopted child of a widow to be child of deceased husband. In Sawan Ram and Ors Vs Kala Wanti and Ors Air 1967 SC 1761, a widow adopted a son and a deed of adoption was executed by her in that respect on August 24 1959. Smt Bhagwan that is the widow, died on October 31 the same year and the appellant. Sawan Ram who claimed to be the nearest reversioner of Ramji Dass, the husband of Smt Bhagwan brought a suit for the possession of the land gifted by Smt Bhagwan to respondent No1.

The issue in this case was whether a child adopted by a widow will be deemed son of her deceased husband as well. The Court held that Deep Chant was given in adoption by his parents which necessarily included the father.

It was urged that the scheme of the Act is that when a Hindu female adopts a child, he becomes the adopted son of the Hindu female only and does nit necessarily become the son of the deceased husband if the Hindu female be a widow. Under section 5(1), the adoption to be made is mentioned as by or to a Hindu was intended to cover cases where the child adopted becomes the adopted son of another person.

On adoption by a widow, the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. He loses all his rights and replaced by the rights created by the adoption in the adoptive family. This Act in section 12 of the Act itself makes clear that on adoption by a Hindu female who has been married, the adopted son in effect will be the adopted son of the husband too.

When a widow makes an adoption, she acts merely as a delegate or representative of her husband, that is to say. she is only an instrument through whom the husband is supposed to act. The substitution of a son of the deceased for spiritual reasons is the essence of adoption and the consequent devolution of Property is a mere accessory to it:
Vide Amarendra Mansingh v. Sanalan Singh, AIR 1933 PC 155 at p. 158. China Rama-subbayya v. Chenchuramayya, AIR 1947 PC 124 and Chandrasekara v. Kutandaivelu.

The inevitable conflict between the spiritual and the religious aspect of an adoption as against the secular and temporary considerations, resulted in any amount of difficulties in demarcating the line as to when the religious or spiritual background should receive full recognition as against the secular aspect.

Section 8 provides that a female who is married can take a son or daughter in adoption only if her marriage has been dissolved or her husband is dead or he has completely and finally renounced the world or as ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Under section 8 of the Act, a widow enjoys the absolute power to adopt a son or daughter to herself.

The only condition are that at the time of adoption, she should not have a son, son's son or son's son's son if she adopts a son.
Conclusively, a child adopted by a widow will be deemed to be the adopted son of her deceased husband. So in this case the son adopted by the widow even after several years of the death of her husband, the son will be of her deceased husband too.

8 (a) Adoption of a 9 year old Parsi girl Personal laws of Muslims, Christians, Parsi and Jews do not recognize complete complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child under Section 8 of the Guardians and Wards Act 1890.This statute only makes a child a ward not an adoptive child.

Under Indian law adoption is legal coalition between the party willing for adoption and a child it forms the subject matter of personal law where Hindu, Buddhist, Jain or sikh by religion can make a legal adoption. In India there is no separate adoption laws for Muslims, Christians and Parsi so they have to approach court under the guardianship abd ward act 1890 for legal adoption.

Personal laws of Muslims, Christians, Parsi and Jews do not recognize complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child. This statute only makes a child ward not adoptive child. According to this statute, the moment the child turn to the age of 21, he is ni longer considered as a ward and treated as individual identity.

Capacity to adopt under Juvenile Justice (Care and Protection of Children) Act
A couple or a single parent can adopt an orphan, abandoned and surrendered child. Nothing in this act shall apply to adoptions under HAMA. By virtue of section 37 of the JJ Act, 2015 and regulation 6 and 7 of AR, 2017 child welfare committee can declare legally an orphaned, abandoned and surrendered child free from adoption and also allows children up to the age of 18 for adoption.

The capacity of male and female under the Juvenile Justice Act, 2015 can be grouped under the umbrella term prospective adoptive parents as mentioned under section 57 of the JJ act 2015 and regulation 5 of AR, 2017.

The prospective parents should be mentally sound, physically fit sand they should be fully prepared to adopt the child and also should be ready to provide good upbringing.In the case of married couples both spouses consent is required. A single male is not eligible to adopt a girl child.No child shall be given to any couple until they have atleast two years of stable a.martial relationships. The minimum age difference between the adoptive child and the parents should not be less than twenty five years.

Who can be adopted?
The child can either be a girl or a boy if he/she is a Hindu.He/ She has not been adopted before. The age of the child is below 15 years.The child should not be married.As per the Guardianship law and The Juvenile Justice (Care and protection of children) ACT, 2015 following child may be adopted namely:
Who is not a Hindu. Who is minor (not completed the age of 18 years).An orphan or abandoned or surrendered.

In Mohammed Allahadad Khan v Muhammad Ismail, it was held that there is nothing in the Mohammadan law similar to adoption as recognized in the Hindu system. Acknowledgement of paternity under Muslim law is the nearest approach to adoption.

Under the guidelines governing adoption of children 2015,these guidelines misuse or illegal use of the children through adoption is prevented. As per the SC guidelines for intercountry adoption a foreign parent can adopt an Indian child before he or she complete the age of 3 years. In the absence of any concrete Act on inter-country adoption, the provisions of guardian and awards act 1890 will be followed for adoption.

However, as long the person is willing to adopt a child he can take the guardianship of of a child under Section 8 of the GWA. The minimum age different between the chikd and either of the prospective adoptive parents shall not be less than 25 years.

8(b). Adoption of a Hindu boy aged 16 years
If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son's son or son's son's son's whether by legitimate blood relationship or by adoption living at the time of adoption. As per the Hindu Adoption and maintenance Act, the child who complete the age of 18 years is not entitled to be given under adoption unless the party that is the adoptive couple custom allows them to do so. If tge custom allows adopting a child who complete years of age then adoption can be valid.

In the case of a couple, the combined age of the partners should not exceed 100 years. To adopt a child between 8 and 28 years, the prospective adoptive parent if single must not be more than 55 years of age. In Hindu law, up to 28 years of age, children can be adopted under this Act.

In every adoption there are conditions which must be complied with. If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least 21 years older than the person to be adopted. The same child may not be adopted simultaneously by two or more persons.

Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Hanmant laxman Salunke (D) by L. Rs Shrirang Narayan Kanse Air 2006 Bom 123. The defendant's father only wanted that he should be reared uo by Sankar and Sask after the mother's death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children if their own, thereby negativing the adoption.