Date of judgement :
25 March 1983
Justice N Sundaram
Petitioner - Moulvi Mohammed
Respondent -Mohaboob Begum
Whether a custom allowing adoption would prevail over Muslim Personal law in case of adoption.
The High Court observed that as per Section 16 of the Madras act, 1873, the status of custom, once proved to be valid, will prevail over Personal law. Also, there is no inconsistency between the provisions in question. The Court also upheld the case of Puthiya Purayil Abdurahiman claiming that the Shariat Act did not entirely abolish the custom and usage regarding matters other than those specified in Sections 2 and 3 (1) of the Act.
The Court held that Clause (b) of Section 16 of the Madras Act III of 1873 reflects that any custom having the power of law and governing the groups concerned shall form the rule of judgment in respect of subjects specified in the main part of the section unless such custom, by legislative enactment, has been reformed or abolished.
The absence of other subjects (such as adoption) regarding which valid custom could rule and be binding on the parties does not mean that it is not lawful for the parties to rely on such a valid custom if there is one.
Section 6 of the Shariat Act was repealed, as it was not consistent with the provisions of the Shariat Act. This repeal is of no importance for this case as it serves no purpose in these circumstances. First of all, because Section 16 of the Madras Act III of 1873 does not explicitly refer to adoption. Second of all, even in Sec. 2 of the Shariat Act, adoption is not one of the specified subjects, regarding which custom or usage is ruled out.
Even if the present matter, has been brought within the horizon of Section 2 of the Shariat Act, by the benefit of a declaration under Section 3 (1), in the instant case, there is no such pronouncement and there will be no inconsistency between the provisions. Hence, in the absence of any prohibition on custom, relating to adoption under 'the Shariat Act, in such instances, it is feasible to plead and establish such a custom or usage having, the force of law amongst the concerned parties.
In this context, the Court felt compelled to implement the ratio of the Bench in the Puthiya Purayil Abdurahiman case, that the Shariat Act did not entirely abolish custom and usage regarding matters other than those specified in Sections 2 and 3 (1) thereof.
The Respondent's counsel also claims that even if it is proved that there is a lack of proof of a valid custom regarding adoption as per the said custom, the respondent can very well indict the appeal as the individual in custody of property at the time of the death of Zaina Bi, can be taken within the explanation of a 'legal representative'.
In the supporting affidavit filed, the respondent has asserted that she is in custody and gratification of the property after the death of Zaina Bi. But this feature has not been examined by the Court below to provide a verdict one way or the other and the Court was content to receive the plea of custom regarding the adoption and is only based on the request by the respondent to come on record as the legal representative of the deceased Zaina Bi was permitted.
This question also requires inquiry and mediation by the Court based on the evidence already arranged and the parties. As stated before, The Court finds that even on the issue of proof of custom and the factum of adoption, there has not been a proper judgment earlier and in the Court’s view, all the questions require a proper investigation and verdict by the Court. In this view, this review is allowed and the matter (1. A. No. 462 of 1980) will now stand submitted to the file of the Court for it to consider the same afresh in the light of the directions given, instructions, and different observations made above.
There, will be no order as to costs in the present revision.
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