case comment on family law, Assignments of Law

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NAME: ZOYA AFTAB KARIGAR

PRN: 19010126188

DIV: B

SEMESTER IV

ACADEMIC YEAR 2020-

nd

YEAR, BBA LLB {Hons}

FAMILY LAW INTERNAL 1

SYMBIOSIS LAW SCHOOL, PUNE

CASE COMMENT, FAMILY LAW II

Mrs. Lalitha Ubhayankar and Ors.

V.

Union Of India and Another

Petitioner: Mrs. Lalitha Ubhayakar Respondent: Union of India

Equivalent citations: AIR 1991 Kant 186, 1990 (3) KarL J 589

Bench: M C Urs Date: 26th^ July, 1990 The following is a case comment on Mrs. Lalitha Ubhayankar v. Union Of Indi a. This case is a writ petition challenging the constitutionality of some sections of Hindu Adoptions and Maintenance Act, 1956. It deals with the issues raised in this case. The problems have been explained with the help of similar case laws.

2. Section 8 of the Hindu Adoptions and Maintenance Act, 1956: Any female Hindu- (a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption." ANALYSIS: As per the above-mentioned sections, a hindu female has the capacity to adopt a boy or a girl but in case of a married girl, there cannot be any adoption even with the consent of her husband. There are certain conditions only on the fulfilment of which, a hindu married girl can adopt. There is gender bias against married women in these sections. A married man has been given the right to adopt with consent of his wife whereas there is no such provision for a married woman. Section 7 has covered this right of adoption in with respect to unmarried woman. Since married status falls into a different class, they cannot complain of discrimination or violation of Article 14 of the Indian constitution. The legislature has not made any discrimination between a wife or a woman. The adoption is with respect to the family and not the individual. The child is adopted in the family and not to the father or mother individually. Accordingly, the petition was dismissed. The scenario in which a wife adopts a child without the consent of his husband in a civilized society cannot be true but the opposite is possible. The reason are the numerous complications which may arise in doing so. These problems can relate to property, harmony in the family, personal animosity which may lead to unbridled passion and violence among the family members. Hence keeping such factors in mind, the parliament has constructed laws in such a way so that the peace in the family is maintained.

In Pratap Singh v. Union of India^1 , it is made clear that a special provision has been made with respect to women under clause (3) of Article 15 of the Indian Constitution. Which is precisely what section 8 of this particular act is enforced for without which provision a hindu woman who is unmarried is declared uncapable of making an adoption. In Malti Roy Chowdhury v. Sudhindhranath Majumdar^2 , the court held that the wife (Malti) adopted a child with the consent of her husband. Under the Hindu Adoption and Maintenance Act, 1956, this adoption is invalid. An adoption cannot be valid if it is initiated by a married woman, consent of husband is irrelevant. Even though the Act has improved its status in favor of women hence empowering them, there still exists some gender based bias as well as bias related to marital status. In Dashrath Ramchandra Khairnar case^3 , it was held that even if the husband has consented to adoption by wife, by executing an agreement, the said adoption is still invalid in eyes of law. In Bholooram and Ors. V. Ramlal and Ors, the question raised was whether the consent of all wives is needed if a person has more than one wife during the time of adoption? It was held that the consent of all wives is necessary whether it is expressed or implied. CONCLUSION: Adoption is one of the few concepts that has gone through reformative changes from old to primitive to modern age. The old Hindu law witnessed post-independence reforms one of which is called as the Hindu Adoptions and Maintenance Act, 1956.This act dismantles several gender based discriminatory factors by adhering to principles of justice, equality and morality. One of the main reasons why adoption became so indispensable in the society was to secure one’s funeral rights and to preserve the continuance of one’s lineage. Even though the adoption laws in India have improved tremendously there still exists some gender bias. By enacting a uniform civil code, other religions in India will also be able to adopt children. The child will have a proper protection and bright future. (^1) 1985 AIR 1695 (^2) AIR 2007 Cal 4 (^3) 919760 Bom.L.R. 426