In Absence Of Registered Document Of Adoption, Adoptive Parents Have To Establish That Child Was Adopted Before Completing 15 Years With Adoptive Mother’s Consent: Gujarat High Court

The petition before the High Court was filed under Articles 226 and 227 of the Constitution, seeking issuance of a direction to the Additional District Judge to declare the adoption of a boy by the present petitioners in 1991 as legally valid and correct by quashing the impugned order of the Additional District Judge.

The Single Bench of Justice Devan M. Desai said, “ For a valid adoption, in absence of a registered document of adoption, any ceremony performed prior to the registration of a deed of adoption is of no value in the eye of law, unless by a clinching evidence, adoptive parents establish a fact that the child was adopted before the completion of 15 years of age and with the consent of wife. In the present case, as observed earlier, petitioners have not examined either the priest or the relatives of the parties to substantiate the fact that the adoption Vidhi was performed on 13.01.1991 as per the Hindu rituals.”

Advocate Devdip Brahmbhatt represented the Petitioner, while Advocate Nidhi P Barot represented the Respondent.

Factual Background

The Appellants-original applicants, filed an application under Section 16 of the Hindu Adoption and Maintenance Act, 1956, for the adoption of a boy in 1991 as legal and valid. The case of the original applicants-appellants was that original-applicant 1 and original-opponent 1 are real brothers, and original-applicant 2 and original-opponent 2 are the respective wives of applicant 1 and opponent 1. Original opponents are the natural parents of the adoptive son. The adoption ceremony was held in 1991in the presence of well-wishers and relatives of both sides.

The document of deed of adoption was executed and registered in 2016, and thereafter, the adoptive son filed an application under Section 7 of the Guardians and Wards Act, 1980. The application of the adoptive son, who was about 25 years old on the date when the application was made, came to be rejected by the second Additional District Judge. Thereafter, the appellants filed an application under Section 16 seeking validation of the adoption as legal, but the same was rejected. Aggrieved thereby, the appellants approached the High Court.

Reasoning

The Bench referred to Clause (iv) of Section 10 of the Act which mandates as to the person who may be adopted and observed, “A person who has completed the age of 15 years cannot be held to be capable of being taken in adoption unless a custom or usage enables the parties to permit persons to adopt who have completed the age of 15 years.”

On a perusal of the application and oral deposition of the power of attorney of the petitioners, the Bench found that no case was made out bythe petitioners that a custom or usage was applicable to the parties which permitted adoption of a person beyond the age who had attained the age of 15 years.

The Bench also found a breach of the proviso to Section 7 of the Act, which envisages that a male Hindu who is of sound mind and is not a minor capacity to take a son or daughter in adoption but he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by Court of competent jurisdiction to be of unsound mind.

The Bench noticed that the evidence to the effect that whether the wife of petitioner 1 consented before the adoption ceremony or not was missing. The petitioners had chosen to remain absent from the proceedings. Moreover, the date of birth of the said witness was mentioned as October 18, 1998, in the deed of adoption. Thus, on the date of adoptio,n Vidhi dated January 13, 1991, the said witness was aged about only 3 years. As per the Bench, the evidence of such a witness could not be accepted. It could not be said that the said witness knew about the alleged adoption Vidhi performed in 1991. The high court of Gujarat further said, “The date of adoption is the date of execution of a registered sale deed of adoption dated 18.02.2016, which is an illegal document as on the date of registration of deed Ankit was aged about 25 years.”

Thus, finding no reason to interfere with the findings arrived at by the trial Court in rejecting the application, the Bench dismissed the Petition.

Cause Title: Patel Sureshbhai Babulal & Anr. v. Patel Pravinbhai Babubhai & Ors. (Case No.:R/Special Civil Application No.1516 of 2018)

Appearance

Petitioner: Advocate Devdip Brahmbhatt

Respondent: Advocate Nidhi P Barot

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