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2017 (11) TMI 1868 - SC - Indian LawsAdoption - Restraint on naming of a person - the 1st Defendant, who is the Appellant herein, was not the adopted son of late Govardhandas Laxmichand Samsuka and consequently the Appellant herein was permanently restrained from representing himself as son of Govardhandas and further restrained him from naming himself as Ratanlal Govardhandas Samsuka - Whether the person who alleges the existence of a custom need not prove the same because it is judicially accepted? - Whether the Appellant could plead and prove the factum of adoption? HELD THAT:- A person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined Under Section 3(a), applicable to the parties which permits persons who are married being taken in adoption - India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met. The evidence as discussed makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plaintiff to prove the adoption which is contrary to law. The Appellant failed to satisfy the Court that any question of law much less substantial questions of law arise in this appeal which warrant interference of this Court. The view taken by the High Court, being convincingly reasonable - appeal dismissed.
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