The doctrine of Factum Valet is sometimes involved in the law of adoption. In Sri Balusu v. Sri Balusu, 22 Mad. (PC) 398, the question arose whether an only son could be given in adoption. The Mitakshara forbids the giving of an only son in adoption.
Nayeko Putra Deyaha (An only son should not be given in adoption).
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Na Jyeshta Putra Deyaha (The eldest son should not be given in adoption).
In that case an only son was given in adoption. It was urged that though there is a Hindu Law text forbidding such an adoption, the infirmity was cured by the application of the doctrine of Factum Valet. The Latin Maxim means that what ought not be done, is valet when done.
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According to Hindu Jurists “a fact is not changed by a hundred texts”. The Privy Council considered this doctrine to be applicable only to directory texts. It is inapplicable to mandatory texts.
If the text in question is only recommendatory, then this maxim may be applied and the adoption can be upheld. It was held that the text was only directory and so the adoption of an only son was held to be valid notwithstanding the prohibitory text of the Mitakshara.
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The doctrine has no application to mandatory texts. Lallan Ram v. Cobri Ram, AIR 1972 All. 540. The texts regulating capacity to give, the capacity to take and the capacity to be given in adoption are mandatory. Their infraction cannot be validated by the application of the doctrine of Factum Valet. Similarly, the formality of giving and taking is essential for adoption. The doctrine of factum valet cannot be applied to cure an infirmity in this regard.