Dhanabakium v Subramanian and Another
Jurisdiction | South Africa |
Judge | De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA |
Judgment Date | 19 November 1942 |
Citation | 1943 AD 160 |
Hearing Date | 23 October 1942 |
Court | Appellate Division |
Tindall, J.A.:
The appellant, an Indian woman, is the mother of an infant child born on 15th May, 1941. On 30th June. 1941, the appellant, as parent of the child, signed a consent before the assistant magistrate of Pietermaritzburg, as commissioner for child welfare for the adoption of the child, under Chapter 7 of Act 31 of 1937 by the respondents. The form signed by the appellant, which is prescribed by Order IV of the rules framed
Tindall, J.A.
under sec. 6 of the Act and published under Government Notice No. 470 of 28th March, 1940, states that she is the mother of the child whose name is given. On 15th July, 1941, the two respondents, as adoptive father and adoptive mother respectively, signed a form of application to the Children's Court for the district mentioned for an order for the adoption of the infant by the respondents. In the statement of particulars in the form (which is also prescribed by the said Order) the name of the father of the child is given as Saravana Naiker and a note is added that the father died on 7th May, 1941. The appellant's name is given as the mother. On the same date as the application the respondents made affidavits in each of which it is stated that the father was the son of the respondents and that appellant was their daughter-in-law. Thereafter the commissioner of child welfare wrote to the secretary of the child welfare society for a report and on 27th August, 1941, after receipt of the report, made an order of adoption in the prescribed form.
Sec. 5 (1) of the Act provides that a commissioner or assistant commissioner of child welfare shall preside over a children's court established under the Act, and sec. 69 (5) empowers the court to take evidence on oath by affidavit or viva voce when dealing with an application for an adoption order. Rule 7 (2) of Order VI requires the proceedings at the hearing of an application for an order of adoption to be recorded by the commissioner, or by a clerk or shorthand writer under his direction, and mentions, among the things which the record shall comprise, "a note of the oral evidence given at the enquiry; of the admission of any consent in writing, affidavit, written report, exhibit or other production: and of the rejection of any such consent, affidavit, exhibit or production".
On 19th November, 1941, the appellant applied to the children's court under sec. 73 of the Act for a rescission of the order of adoption. In an affidavit in support of the application she alleged that she was born on or about 27th September, 1921, that she was married to Saravanan Naiker on 30th October, 1939, according to Hindu rites at Pietermaritzburg, that such marriage was not registered, and that therefore she was not legally married. As she found that her marriage was not a legal one, she did not wish to live with the respondents, but intended living with an uncle who was in a position to provide for her and the child. She alleged
Tindall, J.A.
that she did not understand the true effect of the adoption proceedings, and that the first respondent had made certain misrepresentations to her; but it is not necessary, for the purpose of the decision of this appeal, to dwell on the grounds of misrepresentation and error relied on by the appellant in her affidavit. The allegations of misrepresentation and misunderstanding are denied in the affidavits filed by the two respondents and the court interpreter made an affidavit that he interviewed the appellant before she signed the consent, and had satisfied himself that she understood what she was consenting to. The magistrate who, as commissioner of child welfare, made the order of adoption, also made an affidavit in which he stated that he had satisfied himself that she fully understood the effect of the consent and that she was executing the document of her own free will. The magistrate did not say whether he had inquired into the legal status of the appellant. I infer that either he considered that her legal status was irrelevant as the father was dead and the appellant was the mother, or else he assumed that appellant was legally married to the deceased father, and that the appellant was a major. The papers before the Court do not indicate that the magistrate who dealt with the application for adoption heard any oral evidence.
At the hearing of the application for rescission of the adoption order the commissioner of child welfare (not the same official who had granted the order of adoption) did not hear any oral evidence. He had before him the affidavits of the parties, that of the commissioner who had made the order and that of the interpreter, certain other affidavits and certain letters from the protector of Indian immigrants. Counsel appeared on each side, and after hearing their submissions, the commissioner, on 15th December, 1941, granted the order of rescission. The commissioner's reasons show that his main ground for rescinding the order of adoption was substantially the following. The appellant no longer wished to live with the respondents, and, therefore, if the order of adoption were allowed to continue, the result would be a separation of the infant from its mother, to the detriment of the infant. The commissioner added that he was also influenced by the consideration that the appellant did not fully grasp the possible effects of adoption.
Against that order the adoptive parents appealed to the Natal Provincial Division. One of the grounds on which counsel for the
Tindall, J.A.
mother of the child supported the rescission order in the Provincial Division was that, being a minor, the mother was not competent to agree to the adoption. The Provincial Division disagreed with that contention, and held that in the case of an illegitimate child paragraph (d) (i) of sec. 69 (2)...
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