Learned single judge upon noticing that the
provisions of the proviso to section 7 of the 1956 Act are, in
part, pari materia to clause (c) of section 8 of the 1956 Act, by
applying the interpretation accorded to clause (c) of section 8 of
the 1956 Act by the Apex Court in Brajendra Singh’s case
(supra), held that the requirement of consent of the wife, under
the proviso to section 7 of the 1956 Act, cannot be dispensed
with where there is no dissolution of marriage even though the
wife might be estranged from her husband and staying
separate. In our considered view, the learned single judge was
right in holding that the consent of even an estranged wife for
taking in adoption would be required, if the marriage has not
been dissolved. No doubt, consent of wife would not be
required where the marriage has been dissolved or the wife has
completely renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of
unsound mind. But, here, it has not been proved that the
marriage was dissolved. Rather, the document produced is to
the contrary. Further, there is nothing on record to suggest that
Phoolmati has completely renounced the world or has ceased
to be a Hindu or has been declared of unsound mind by any
court. Mere staying separate from one's husband may amount
to renouncing the husband but not the world. Under the
circumstances, Phoolmati's consent was required before her
husband could take in adoption.
11. Noticeably, there is no evidence brought on record
to demonstrate that consent of Phoolmati was obtained or was
there, before her husband allegedly took the appellant in
adoption. In Ghisalal v. Dhapubai, (2011) 2 SCC 298, the
Apex Court after laying emphasis on the mandatory
requirement of obtaining consent of wife before the husband
could validly take a son or a daughter in adoption, interpreted
the term consent, in paragraph 26 of the judgment, as follows:
“26. The term “consent” used in the proviso to Section 7
and the Explanation appended thereto has not been
defined in the Act. Therefore, while interpreting these
provisions, the court shall have to keep in view the legal
position obtaining before enactment of the 1956 Act, the
object of the new legislation and apply the rule of
purposive interpretation and if that is done, it would be
reasonable to say that the consent of wife envisaged in
the proviso to Section 7 should either be in writing or
reflected by an affirmative/positive act voluntarily and
willingly done by her. If the adoption by a Hindu male
becomes subject-matter of challenge before the court, the
party supporting the adoption has to adduce evidence to
prove that the same was done with the consent of his wife.
This can be done either by producing document
evidencing her consent in writing or by leading evidence to
show that wife had actively participated in the ceremonies
of adoption with an affirmative mindset to support the
action of the husband to take a son or a daughter in
adoption. The presence of wife as a spectator in the
assembly of people who gather at the place where the
ceremonies of adoption are performed cannot be treated
as her consent. In other words, the court cannot presume
the consent of wife simply because she was present at the
time of adoption. The wife's silence or lack of protest on
her part also cannot give rise to an inference that she had
consented to the adoption.”
(Emphasis supplied)
12. From the decision noticed above, the legal principle
deducible is that the party propounding an adoption by a Hindu
male, who has a living wife, has to adduce evidence to prove
that the same was done with the consent of his wife. This can
be done either by producing document evidencing her consent
in writing or by leading evidence to show that wife had actively
participated in the ceremonies of adoption with an affirmative
mindset to support the action of the husband to take a son or a
daughter in adoption. In other words, the court cannot presume
the consent of wife simply because she was present at the time
of adoption. The wife's silence or lack of protest on her part also
cannot give rise to an inference that she had consented to the
adoption.
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
In re: Delay Condonation Application No. NIL of 2021:
1. As the limitation expired during the period of
COVID-19 pandemic, the office has not reported the appeal to
be beyond the period of limitation but, as a delay condonation
application has been filed, to avoid any technicalities, we deem
it appropriate to allow the application and condone the delay, if
any.
In re: Appeal
2. Heard Sri B.B. Paul for the appellant; the learned
Standing Counsel for the respondents 1, 2 and 3; and perused
the record.
3. This intra-court appeal has been filed by the writpetitioner
(for short the appellant) against the judgment and
order dated 25.11.2020 passed by the learned Single Judge in
Writ A No. 10300 of 2107 by which appellant’s writ petition has
been dismissed.
4. Facts, in brief, giving rise to this appeal are that on
death of one Rajendra Singh on 03.06.2016, in harness, by
claiming himself as his adopted son, the appellant applied for
compassionate appointment. As the claim of the appellant was
not being addressed, the appellant filed Writ A No.53860 of
2016 and obtained a direction on 17.11.2016 for consideration
of his claim. Pursuant to that direction, the Divisional Director,
Social Forestry Division, Mau (for short Director), by order
dated 17.12.2016, rejected the claim of the appellant upon
finding as below : (a) Rajendra Singh had a living wife in
Phoolmati against whom he had instituted suit no.145 of 1994
which was decided in terms of a compromise on 31.08.1997, as
per which their relationship as a married couple were to
continue; (b) Phoolmati claimed herself to be the sole heir of
Rajendra Singh and had denied adoption of the appellant; (c)
under Dying in Harness Rules, 1974, preference is to be
accorded to the deceased’s wife; (d) the adoption deed relied
by the appellant appeared fraudulent as it recited that Rajendra
Singh, the adoptive father, was unmarried even though he had
a living wife in Phoolmati; (e) the educational certificates of the
appellant, even those that were obtained post the date of
alleged adoption, reflected the name of his natural parents,
namely, Raj Narain and Kamla; (f) the extract of Parivar register
also reflects the name of appellant’s father and mother as Raj
Narain and Kamla, respectively and, therefore, the plea of
adoption set up by the appellant is nothing but fraudulent made
with a view to make unlawful gain. Assailing the order dated
17.12.2016 the appellant filed Writ A No. 10300 of 2017 by
claiming that as the adoption was by a deed of adoption, dated
07.02.2001, registered on 14.12.2009, there was no justification
to deny the benefit of compassionate appointment to the
appellant. In the counter affidavit to the writ petition, inter alia,
the validity of the alleged adoption was questioned. In the
rejoinder affidavit, to meet the objection that a married Hindu
male could not lawfully take in adoption without the consent of
his wife, a stand was taken that Phoolmati, wife of Rajendra
Singh, had left her husband and that in Suit No.145 of 1994, on
the basis of compromise, dated 31.08.1997, a decree of divorce
came to be passed on 01.09.1997, hence, her consent was not
required.
5. The learned Single Judge dismissed the petition of
the appellant upon finding that: (a) there was no decree of
divorce obtained by Rajendra Singh (the deceased employee)
against his wife Phoolmati who was alive at the time of the
alleged adoption; (b) the adoption deed discloses Rajendra
Singh’s status as single, which implies that there was no
consent of his wife for taking the appellant in adoption as is the
mandatory requirement of the proviso to section 7 of the Hindu
Adoption and Maintenance Act, 1956 (for short the 1956 Act);
(c) mere separate living by the wife, or wife's estrangement
from her husband, would not obviate the requirement of her
consent to make a valid adoption. The learned single Judge
concluded that the alleged adoption is invalid and also
fraudulent because, despite alleged adoption, the name of
natural parents of the appellant continued in educational
certificates that were obtained post the date of alleged
adoption.
6. Sri B.B. Paul, learned counsel for the appellant, has
questioned the correctness of the order passed by the learned
Single Judge by claiming that the learned Single Judge has
failed to notice that by a decree dated 31.08.1997 the marriage
of Rajendra Singh with his wife Smt. Phoolmati stood dissolved.
Moreover, even if it is assumed that there was no legal divorce,
she, by living separate from her husband, had renounced the
world therefore her consent was not necessary. The next
submission is that the learned single judge had failed to
consider the import of section 16 of the1956 Act which, upon
existence of a registered deed of adoption, raises a
presumption as to the validity of adoption and since there was
no serious contest to the adoption of the appellant by any of the
successors of the deceased employee, the appellant ought to
have been provided the benefit of adoption by raising that
presumption. In support of this submission reliance was placed
on a decision of the Apex Court in Laxmibai v.
Bhagwantbuva, (2013) 4 SCC 97 where it was held that if
there is a registered document pertaining to the adoption there
is a presumption, under Section 16 of the 1956 Act, to the effect
that the adoption has been made in compliance with the
provisions of the 1956 Act, until and unless such presumption is
disproved.
7. Having noticed the submissions made, on a careful
perusal of the record, we find that the submission of Sri Paul
that there exists a decree of divorce, dated 31.08.1997,
severing the marital bond between Rajendra Singh and his wife
Phoolmati, is contrary to the record. The alleged decree, which
has been brought on the record as Annexure RA III to the
rejoinder affidavit filed in the writ proceeding, is not a decree of
divorce. It only disposes off divorce proceeding in terms of the
compromise. The compromise records payment of Rs.5000/- to
Phoolmati towards litigation expenses and its terms (at page
209 of the paper-book) are: (a) that Rajendra Singh and
Phoolmati shall continue to remain husband and wife; (b) that
Phoolmati’s name, as Rajendra Singh’s wife, would be entered
in his service-book; and (c) that she would get maintenance @
Rs.500 pm. In view of the above, the submission of the learned
counsel for the appellant that on account of divorce between
Phoolmati and Rajendra Singh her consent was not required for
adoption has no basis on facts and is rejected outright.
8. Before we weigh the merit of other submissions
made by the learned counsel for the appellant, it would be
apposite to notice the provisions of sections 6, 7, 8 and 16 of
the 1956 Act, the applicability of which on the parties is not in
issue. These are as below:
“6. Requisites of a valid adoption.—No adoption shall
be valid unless—
(i) the person adopting has the capacity, and also
the right, to take in adoption;
(ii) the person giving in adoption has the capacity to
do so;
(iii) the person adopted is capable of being taken in
adoption; and
(iv) the adoption is made in compliance with the
other conditions mentioned in this Chapter.
7. Capacity of a male Hindu to take in adoption.—Any
male Hindu who is of sound mind and is not a minor has
the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, 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 a court of
competent jurisdiction to be of unsound mind.
Explanation.—If a person has more than one wife
living at the time of adoption, the consent of all the wives is
necessary unless the consent of any one of them is
unnecessary for any of the reasons specified in the
preceding proviso.
8. Capacity of a female Hindu to take in adoption.—Any
female Hindu—
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has
been dissolved or whose husband is dead or has
completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind, has the
capacity to take a son or daughter in adoption.
16. Presumption as to registered documents relating to
adoptions.—Whenever any document registered under
any law for the time being in force is produced before any
court purporting to record an adoption made and is signed
by the person giving and the person taking the child in
adoption, the court shall presume that the adoption has
been made in compliance with the provisions of this Act
unless and until it is disproved.”
9. From a perusal of the provisions extracted above, it
is clear that for an adoption to be valid one of the conditions is
that the person taking in adoption must have the capacity to
adopt. As per section 7, a male Hindu, who is of sound mind
and is not a minor, could take a son or daughter in adoption
provided, if he has a wife living, 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 a court of competent jurisdiction to be of
unsound mind. In the instant case, the argument on behalf of
the appellant is that as the wife had not been in the company of
her husband therefore it could be taken that she had renounced
the world and, as such, her consent would not be required. This
contention was specifically repelled by the learned single judge
by placing reliance on a decision of the Apex Court in the case
of Brajendra Singh v. State of M.P., (2008) 13 SCC
161 where the Apex Court while dealing with the capacity of a
female Hindu to take in adoption interpreted the provisions of
section 8 of 1956 Act, in paragraphs 15 to 17 and 19 of its
judgment, as under:
“15. We are concerned in the present case with clause (c)
of Section 8. The section brings about a very important and
far-reaching change in the law of adoption as used to apply
earlier in case of Hindus. It is now permissible for a female
Hindu who is of sound mind and has completed the age of
18 years to take a son or daughter in adoption to herself in
her own right provided that (a) she is not married; (b) or is
a widow; (c) or is a divorcee or after marriage her husband
has finally renounced the world or is ceased to be a Hindu
or has been declared to be of unsound mind by a court
having jurisdiction to pass a declaratory decree to that
effect. It follows from clause (c) of Section 8 that Hindu wife
cannot adopt a son or daughter to herself even with the
consent of her husband because the section expressly
provides for cases in which she can adopt a son or
daughter to herself during the lifetime of the husband. She
can only make an adoption in the cases indicated in clause
(c).
16. It is important to note that Section 6(i) of the Act
requires that the person who wants to adopt a son or a
daughter must have the capacity and also the right to take
in adoption. Section 8 speaks of what is described as
“capacity”. Section 11 which lays down the condition for a
valid adoption requires that in case of adoption of a son,
the mother by whom the adoption is made must not have a
Hindu son or son's son or grandson by legitimate blood
relationship or by adoption living at the time of adoption. It
follows from the language of Section 8 read with clauses (I)
and (ii) of Section 11 that the female Hindu has the
capacity and right to have both adopted son and adopted
daughter provided there is compliance with the
requirements and conditions of such adoption laid down in
the Act. Any adoption made by a female Hindu who does
not have requisite capacity to take in adoption or the right
to take in adoption is null and void.
17. It is clear that only a female Hindu who is married and
whose marriage has been dissolved i.e. who is a divorcee
has the capacity to adopt. Admittedly in the instant case
there is no dissolution of the marriage. All that the evidence
led points out is that the husband and wife were staying
separately for a very long period and Mishri Bai was living
a life like a divorced woman. There is conceptual and
contextual difference between a divorced woman and one
who is leading life like a divorced woman. Both cannot be
equated. Therefore in law Mishri Bai was not entitled to the
declaration sought for. Here comes the social issue. A lady
because of her physical deformity lived separately from her
husband and that too for a very long period right from the
date of marriage. But in the eye of the law they continued
to be husband and wife because there was no dissolution
of marriage or a divorce in the eye of the law. Brajendra
Singh was adopted by Mishri Bai so that he can look after
her. There is no dispute that Brajendra Singh was in fact
doing so. There is no dispute that the property given to him
by the will executed by Mishri Bai is to be retained by him.
It is only the other portion of the land originally held by
Mishri Bai which is the bone of contention.
19. A married woman cannot adopt at all during the
subsistence of the marriage except when the husband has
completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind. If the
husband is not under such disqualification, the wife cannot
adopt even with the consent of the husband whereas the
husband can adopt with the consent of the wife. This is
clear from Section 7 of the Act. Proviso thereof makes it
clear that a male Hindu cannot adopt except with the
consent of the wife, unless the wife has completely and
finally renounced the world or has ceased to be a Hindu or
has been declared by a Court of competent jurisdiction to
be of unsound mind. It is relevant to note that in the case of
a male Hindu the consent of the wife is necessary unless
the other contingency exists. Though Section 8 is almost
identical, the consent of the husband is not provided for.
The proviso to Section 7 imposes a restriction in the right
of male Hindu to take in adoption. In this respect the Act
radically departs from the old law where no such bar was
laid down to the exercise of the right of a male Hindu to
adopt oneself, unless he dispossess the requisite capacity.
As per the proviso to Section 7 the wife's consent must be
obtained prior to adoption and cannot be subsequent to the
act of adoption. The proviso lays down consent as a
condition precedent to an adoption which is mandatory and
adoption without wife's consent would be void. Both
proviso to Section 7 and 8(c) refer to certain circumstances
which have effect on the capacity to make an adoption.”
(Emphasis supplied)
10. Learned single judge upon noticing that the
provisions of the proviso to section 7 of the 1956 Act are, in
part, pari materia to clause (c) of section 8 of the 1956 Act, by
applying the interpretation accorded to clause (c) of section 8 of
the 1956 Act by the Apex Court in Brajendra Singh’s case
(supra), held that the requirement of consent of the wife, under
the proviso to section 7 of the 1956 Act, cannot be dispensed
with where there is no dissolution of marriage even though the
wife might be estranged from her husband and staying
separate. In our considered view, the learned single judge was
right in holding that the consent of even an estranged wife for
taking in adoption would be required, if the marriage has not
been dissolved. No doubt, consent of wife would not be
required where the marriage has been dissolved or the wife has
completely renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of
unsound mind. But, here, it has not been proved that the
marriage was dissolved. Rather, the document produced is to
the contrary. Further, there is nothing on record to suggest that
Phoolmati has completely renounced the world or has ceased
to be a Hindu or has been declared of unsound mind by any
court. Mere staying separate from one's husband may amount
to renouncing the husband but not the world. Under the
circumstances, Phoolmati's consent was required before her
husband could take in adoption.
11. Noticeably, there is no evidence brought on record
to demonstrate that consent of Phoolmati was obtained or was
there, before her husband allegedly took the appellant in
adoption. In Ghisalal v. Dhapubai, (2011) 2 SCC 298, the
Apex Court after laying emphasis on the mandatory
requirement of obtaining consent of wife before the husband
could validly take a son or a daughter in adoption, interpreted
the term consent, in paragraph 26 of the judgment, as follows:
“26. The term “consent” used in the proviso to Section 7
and the Explanation appended thereto has not been
defined in the Act. Therefore, while interpreting these
provisions, the court shall have to keep in view the legal
position obtaining before enactment of the 1956 Act, the
object of the new legislation and apply the rule of
purposive interpretation and if that is done, it would be
reasonable to say that the consent of wife envisaged in
the proviso to Section 7 should either be in writing or
reflected by an affirmative/positive act voluntarily and
willingly done by her. If the adoption by a Hindu male
becomes subject-matter of challenge before the court, the
party supporting the adoption has to adduce evidence to
prove that the same was done with the consent of his wife.
This can be done either by producing document
evidencing her consent in writing or by leading evidence to
show that wife had actively participated in the ceremonies
of adoption with an affirmative mindset to support the
action of the husband to take a son or a daughter in
adoption. The presence of wife as a spectator in the
assembly of people who gather at the place where the
ceremonies of adoption are performed cannot be treated
as her consent. In other words, the court cannot presume
the consent of wife simply because she was present at the
time of adoption. The wife's silence or lack of protest on
her part also cannot give rise to an inference that she had
consented to the adoption.”
(Emphasis supplied)
12. From the decision noticed above, the legal principle
deducible is that the party propounding an adoption by a Hindu
male, who has a living wife, has to adduce evidence to prove
that the same was done with the consent of his wife. This can
be done either by producing document evidencing her consent
in writing or by leading evidence to show that wife had actively
participated in the ceremonies of adoption with an affirmative
mindset to support the action of the husband to take a son or a
daughter in adoption. In other words, the court cannot presume
the consent of wife simply because she was present at the time
of adoption. The wife's silence or lack of protest on her part also
cannot give rise to an inference that she had consented to the
adoption.
13. 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.”
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.
17. At this stage, we may notice another statement of
the learned counsel for the appellant though not vehemently
pressed as an argument. It was stated that there were property
documents on record to show that the estate of the deceased
employee (Rajendra Singh) had come to the appellant and,
therefore, for all practical purposes he was the son of the
deceased employee. We find not much value in those facts
because here, to qualify as a dependent of an employee who
died in harness, the appellant had set up a plea that he was the
adopted son of the deceased employee. Once that plea stood
discarded upon finding that a valid adoption could not be
established, as to how the property of the deceased employee
devolved was not important and binding on the authorities who
were to deal with the claim for compassionate appointment on
the strength of adoption. That apart, there were other
circumstances also, such as continuance of name of natural
parents of the appellant in educational certificates, obtained
after the alleged date of adoption, to suggest that adoption was
sham may be to divest the estranged wife of her claim in the
deceased employee’s property.
18. For all the reasons recorded above, we are of the
considered view that the learned single judge was justified in
negativing the claim of the writ petitioner (the appellant) for
compassionate appointment on the basis of his alleged
adoption by the deceased employee.
19. The appeal is, accordingly, dismissed.
Order Date :- 22.2.2021
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