Now, we shall examine the nature of presumption
that arises under section 16 of the 1956 Act. In Jai Singh v.
Shakuntala, (2002) 3 SCC 634, the Apex Court had held that
the presumption that arises out of section 16 of the 1956 Act is
rebuttable and the inclusion of the words “unless and until it is
disproved” appearing at the end of the statutory provision has
made the situation not that rigid but flexible enough to depend
upon the evidence on record in support of adoption. The
relevant portion of that judgment, as found in paragraph No.2
thereof, is extracted below:
“2. The section thus envisages a statutory presumption
that in the event of there being a registered document
pertaining to adoption there would be a presumption that
adoption has been made in accordance with law. Mandate
of the statute is rather definite since the legislature has
used “shall” instead of any other word of lesser
significance. Incidentally, however, the inclusion of the
words “unless and until it is disproved” appearing at the
end of the statutory provision has made the situation not
that rigid but flexible enough to depend upon the evidence
available on record in support of adoption. It is a matter of
grave significance by reason of the factum of adoption and
displacement of the person adopted from the natural
succession — thus onus of proof is rather heavy. Statute
has allowed some amount of flexibility, lest it turns out to
be solely dependent on a registered adoption deed. The
reason for inclusion of the words “unless and until it is
disproved” shall have to be ascertained in its proper
perspective and as such the presumption cannot but be
said to be a rebuttable presumption. Statutory intent thus
stands out to be rather expressive depicting therein that
the presumption cannot be an irrebuttable presumption by
reason of the inclusion of the words just noticed above.”
{Para 13}
14. Even in the decision in Laxmibai’s case (supra),
relied by the learned counsel for the appellant, the Apex Court
held that a very heavy burden is placed upon the propounder to
prove adoption but once a registered document recording the
adoption is brought before the court the onus shifts. The court
however clarified that this aspect must be considered taking
note of various attending circumstances. The relevant portion of
that judgment i.e.paragraph 33, is extracted below:
“33. The appellate court could therefore, not have drawn
any adverse inference against the appellant-plaintiffs on
the basis of a mere technicality, to the effect that the
natural parents of the adoptive child had acted as
witnesses, and not as executors of the document.
Undoubtedly, adoption disturbs the natural line of
succession, owing to which, a very heavy burden is placed
upon the propounder to prove the adoption. However, this
onus shifts to the person who challenges the adoption,
once a registered document recording the adoption is
brought before the court. This aspect must be considered
taking note of various other attending circumstances i.e.
evidence regarding the religious ceremony (giving and
taking of the child), as the same is a sine qua non for valid
adoption.”
(Emphasis supplied)
15. The legal principle deducible from the decisions
noticed above is that once a registered deed of adoption is
produced though there arises a presumption that the adoption
has been made in compliance with the provisions of the 1956
Act but that presumption is rebuttable. Whether that
presumption has been rebutted depends on the facts of each
case borne out from the evidence on record.
16. In the instant case, the adoption deed on which
reliance has been placed by the appellant declares Rajendra
Singh as unmarried whereas, it is established on the record, he
was married and had a wife living on the date of adoption.
Therefore once it was proved that Rajendra Singh had a living
wife, the presumption, if any, arising from that deed with regard
to the adoption being in accordance with the provisions of the
1956 Act stood demolished because how could it be presumed
that the wife had given her consent for her husband to take a
son in adoption when even the existence of that wife is not
acknowledged. In fact in the adoption deed Rajendra Singh has
been described as unmarried. Thus, when clinching evidence
had come on board that the person who allegedly took the
appellant in adoption had a living wife, whose existence was
denied in the deed, the presumption, whatever available, stood
rebutted.
ALLAHABAD HIGH COURT
Case :- SPECIAL APPEAL No. - 22 of 2021
Appellant :- Bhanu Pratap Singh
Respondent :- State Of U.P. And 3 Others
Coram:
Hon'ble Manoj Misra,J.
Hon'ble Rohit Ranjan Agarwal,J.
Order Date :- 22.2.2021.
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