Gujarat High Court : In a petition filed by the petitioners under Articles 226 and 227 of the Constitution seeking declaration of their adoptive son, X as legally valid and quash and set aside the impugned order dated 24-11-2017 (‘the impugned order’) passed by the Additional District Judge, Mehsana., a Single Judge Bench of Devan M. Desai, J., stated that the deed was legally invalid, as X was approximately 25 years old, making the adoption itself untenable as per Section 10 of the Hindu Adoption and Maintenance Act, 1956 (‘the 1956 Act’). The Court found no reason to interfere in the impugned order and opined that for a valid adoption, in absence of a registered document of adoption, any ceremony performed prior to the registration of a deed of adoption was 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 wife’s consent.
Background
The petitioners filed an application under Section 16 of the 1956 Act for declaration of adoption of X on 8-1-1991 as legal and valid. The respondents were the natural parents of X, who were the real brother and sister-in-law of Petitioner 2. The date of birth of X was 1-1-1991 and on 13-1-1991, the adoption ceremony was allegedly performed according to Hindu rites in presence of well-wishers and relatives of both the sides and X, was given in adoption.
On 18-2-2016, the document of deed of adoption was executed and registered and thereafter, X filed an application under Section 7 of the Guardians and Wards Act, 1890 (‘the 1890 Act’). The application of X who was about 25 years on the date of application was rejected by 2nd Additional District Judge, Mahesana. Thereafter, the petitioners filed an application under Section 16 of the 1956 Act seeking validation of X as legal and valid, but after considering the evidence on record, Additional District Judge rejected the application on 24-11-2017.
The petitioners contended that the adoption ceremony was held on 13-1-1991, but the deed of adoption was not executed on the said date and after 13-1-1991, X was staying with petitioners. Further, the name of X was entered in all government records, i.e., Ration Card, School Leaving Certificate, Passport, Aadhaar Card, Election Card, as the son of the petitioners. After adoption in 1991, the petitioners were blessed with three other children. The petitioners and X were staying at USA and as X had got a Green Card, petitioners required a legal and valid document i.e., the Court’s orders validating the adoption of X, held on 13-1-1991. It was also contended that the date of adoption was 13-1-1991 and not 18-2-2016, the day when the deed of adoption was executed and registered. Further, they contended that the reasonings adopted by the Trial Court were uncalled for so far as the interpretation of Sections 7 and 8 of the 1890 Act and even the reference of Section 8 was uncalled for by the Court.
Thus, being aggrieved and dissatisfied with the judgment, the petitioners had filed the present first Appeal before this Court seeking legally valid declaration.
Analysis, Law and Decision
The Court observed that a person who had completed the age of 15 years could not be held to be capable of being taken in adoption unless a custom or usage enabled the parties to permit to adopt persons who had completed the age of 15 years as per Section 10(iv) of the 1956 Act. It appeared from the application and oral deposition of the power of attorney of petitioners, that no case was made out by the petitioners that a custom or usage was applicable to them which permitted adoption of a person who had attained the age of 15 years.
The Court noted that the certificate issued by priest did not specify the date of issuance. Furthermore, the invitation card presented did not appear to mention about the names of respective wives of Petitioner 1 and Respondent 1.
The Court observed that there was a violation of the proviso to Section 7 of the 1956 Act, which envisaged that a male Hindu who was of sound mind and was not a minor, had the capacity to take a son or daughter in adoption, but he should not adopt except with the consent of his wife unless the wife had completely and finally renounced the world or had ceased to be a Hindu or had been declared by the Court of competent jurisdiction to be of unsound mind.
Further, the Court on perusal of the record, stated that the evidence to the effect that whether wife of Petitioner 1 consented before the adoption ceremony or not was missing. The Court, after noting that Respondent 1’s elder son was examined, stated that his date of birth was mentioned as 18-10-1998 in the deed of adoption and thus, on the date of adoption Vidhi dated 13-1-1991, he was aged about only 3 years. The Court opined that the evidence of such witness could not be accepted as it could not be said that the said witness had knowledge about the alleged adoption Vidhi performed on 13-1-1991.
The Court stated that for a valid adoption, in absence of a registered document of adoption, any ceremony performed prior to the registration of a deed of adoption was of no value in the eyes 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. Merely by having name of Petitioner 1 after the name of X as a father, it would not make a legal and valid adoption so far as validation of adoption was concerned. The date of adoption was the date of execution of a registered sale deed of adoption dated 18-2-2016, which was an illegal document as on the date of registration of deed as X was aged about 25 years.
The Court opined that scope under Article 227 of the Constitution was very narrow, and this Court could only interfere in the order impugned if the same was de hors the provisions of law and there was patent illegality and arbitrariness in arriving at the conclusion.
The Court thus, stated it did not find any reason to interfere in the finding of Trial Court. Resultantly, the present petition was dismissed.
[Patel Sureshbhai Babulal v. Patel Pravinbhai Babubhai, 2025 SCC OnLine Guj 2826, decided on 2-7-2025]
Advocates who appeared in this case :
For the Petitioners: Devdip Brahmbhatt
For the Respondents: Nidhi P Barot
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