Hindu Adoptions and Maintenance Act, 1956 as examined by us
on a decision of the Division Bench of this Court in Writ Petition No.3078
of 2013 in the case of Alpana Harsham vs Union of India & ors. In the
facts of the said case the Division Bench had held that it was not open for
the passport authorities to question the custody of the son as received by
the mother of the petitioner under a valid decree of divorce as also it was
not open for the passport authorities to question about the validity of
adoption when the same was registered. It was held that it was only the
first husband who could raise an objection and which was not raised. It
was therefore, held that it was not open to the Passport Authorities to
raise a question about the validity of the adoption when the petitioner
therein had made an application for changing the name of her son in
view of the Adoption Deed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6755 OF 2014
Jigna Mahesh Dedhia
vs
Union of India
CORAM: A.S.OKA & G.S.KULKARNI,JJ
JUDGMENT PRONOUNCED ON: 13 .10.2014
Citation; 2014(6) MHLJ 691Bom
By an order dated 19.8.2014 notice for final disposal of this writ
petition was issued. We have therefore, taken up the matter for final
hearing.
By this Petition under Article 226 of the Constitution of India the
Petitioner has prayed for the following reliefs :
2.
(a) That the Respondent may be directed by this Hon'ble Court to
accept the application of Petitioner's son in the name of Jash
Mahesh Dedhia and issue passport;
It is the petitioner's case that the previous marriage of the
3.
(b) Grant of such other reliefs as the nature and circumstances of
the case may require.
petitioner with one Mr.Jayesh Gala was dissolved by a consent decree of
divorce by mutual consent dated 28th January, 2005 passed by the Family
Court, Mumbai. Master Jash is her son from the said marriage. Under the
consent decree passed by the Family Court the custody of her minor son
'Master Jash Jayesh Gala' (as named at the relevant time) was
permanently given to the petitioner.
4.
On 29.5.2008 the petitioner got remarried with one Mr.Mahesh
Dhanji Dedhia. The petitioner's son Master Jash was adopted by
Mr.Mahesh Dhanji Dedhia vide a Deed of Adoption dated 23.4.2009
registered with the Registrar of Assurances. This Deed of Adoption is
executed by Mr.Jayesh Gala in favour of Mr.Mahesh Dhanji Dedhia. A copy
of the decree of divorce alongwith the copy of Marriage certificate of the
2nd marriage and registered Deed of Adoption is placed on the record of
this petition. In pursuance of the deed of adoption the name of the minor
son Master Jash was changed 'as Master Jash Mahesh Dedhia so as to
insert the name of the adoptive father Mr.Mahesh Dedhia. This change in
the name was notified in the Gazette of the Government of Maharashtra
dated 27.5.2009. The school record also show the name of the minor son
as Master Jash Mahesh Dedhia. An Adhar card and a PAN card was also
issued in the same name.
The Petitioner on this background made an application to the
5.
passport authority for issuance of a passport for her minor son in the name
of Master Jash Mahesh Dedhia. All aforesaid documents necessary for the
issuance of a passport were submitted along with the said application. In
response to the said application, the Passport Officer issued a letter dated
6.5.2014 informing the petitioner that the petitioner had mentioned the
name of the 2nd spouse as his father. It was stated that the Passport officer
had examined the application and on the basis of the standing instructions
of the Ministry of External Affairs, New Delhi the petitioner was informed
as under :
“ In the event of remarriage after divorce the name of stepfather or
mother cannot be written in the passport of children from the
previous marriage. The relationship of the child to his biological
parents subsists even after divorce by parents. It is also not possible
to leave the column of father or mother blank in the passport in
such cases. Therefore such applicant must write the names of their
biological parents in the application form.
On behalf of the petitioner, it is submitted that this communication
6.
However, if the stepfather or stepmother is appointed by a Court as
legal guardian, the name of such stepparent can be written as legal
guardian.”
dated 6.5.2014 is arbitrary and without application of mind to the facts of
the petitioner's case. It is submitted that this communication of the
Passport Officer does not take into consideration that there was a consent
decree of divorce between the petitioner and Mr.Jayesh Vallabhji Gala
passed by the Family Court, Mumbai. That the decree of divorce
categorically recorded that the permanent custody of the minor son
Master Jash shall continue to remain with the petitioner and that
Mr.Jayesh Vallabhji Gala had thus given up his claim for the permanent
custody and/or access to Master Jash. It is submitted that the decree
categorically recorded the undertaking of Mr.Jayesh Vallabhji Gala that he
shall not make any claim in that regard also in the event of remarriage of
the petitioner and would not claim any right in future. On the other hand
learned counsel for the respondent has supported the decision of the
respondents.
7.
Having considered the aforesaid facts it is clear is that the
Petitioner got remarried to Mr.Mahesh Dhanji Dedhia. Thereafter a Deed
of Adoption dated 23.4.2009 came to be executed to which Mr.Jayesh
Vallabhji Gala (the natural father of Master Jash), the petitioner and
Mr.Mahesh Dhanji Dhedia (Petitioner's husband on remarriage and the
adoptive father) are parties whereby Master Jash is adopted by
Mr.Mahesh Dhanji Dhedia. The deed of adoption was duly registered with
the Registrar of Assurances. Master Jash was thus adopted by Mr.Mahesh
Dhanji Dedhia the Petitioner's husband. Thereafter, intimation of the
change of the name of son from “Master Jash Jayesh Gala' to 'Master Jash
Mahesh Dedhia' was also notified in the Government Gazette. A PAN card,
Adhar Card,School Identity Card all bear the name of the Petitioner's son
as 'Master Jayesh Mahesh Dedhia.' All these documents were submitted by
the petitioner along with an application for the issuance of a passport for
her son Master Jash. The Passport Officer in his letter dated 6.5.2014
applied the standing instructions of the Ministry of External Affairs, New
Delhi to record that in the event of remarriage after divorce the name of
stepfather or mother cannot be written in the passport of children from
the previous marriage. It was stated that the relationship of the child to
his biological parents subsists even after divorce by parents and that it is
also not possible to leave the column of father or mother blank in the
passport in such cases. It was therefore stated such applicant must write
the names of their biological parents in the application form. It was also
stated that if the stepfather or stepmother is appointed by a Court as legal
guardian, the name of such stepparent can be written as legal guardian.
On the basis of this reasoning the petitioner's son was not issued a
passport.
8.
We are of the opinion that the reasons as recorded in the
communication dated 6.5.2014 issued by respondent no.2 show complete
nonapplication of mind to the clear facts of the petitioner's case.
Moreover, the said reasons as contained in the said communication were
squarely inapplicable to the petitioner's case for the reason that the
biological father of Master Jash namely Mr.Jayesh Vallabhji Gala had
permanently given up all the rights in respect of his son Master Jash in
favour of the petitioner as recorded in the consent decree of divorce.
Thereafter, Mr.Jayesh Vallabhji Gala, the biological father executed a Deed
of Adoption dated 23.4.2009 which was registered with the SubRegistrar
of Assurances, Mumbai whereby Master Jash was given in adoption to
Mr.Mahesh Dhanji Dedhia the petitioner's husband on her remarriage.
The legal consequence of the Deed of Adoption is that the husband of the
petitioner on remarriage has become the adoptive father and the lawful
guardian of the minor son along with the petitioner. Consideration to the
deed of adoption is completely absent in the communication dated
6.5.2014 issued by respondent no.2. We have come across many cases
where the Passport Authorities do not take into consideration the effect of
a valid deed of adoption.
9.
To adjudicate the issue as arising in the present petition it would
be useful to refer to the relevant provisions of the Hindu Adoptions and
Maintenance Act, 1956.(78 of 1956) (for short 'the Act'). Section 5 of the
Act provides for adoption to be regulated by Chapter II. Section 5 reads
thus:
5. “Adoption to be regulated by this Chapter(1) No adoption shall be
made after the commencement of this Act by or to a Hindu except in
accordance with the provisions contained in this Chapter, and any
adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the
adoptive family in favour of any person which he or she could not
have acquired except by reason of the adoption, nor destroy the
rights of any person in the family of his or her birth.”
Section 6 provides for requisites of a valid adoption and reads as under :
ig
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.
Section 15 provides that a valid adoption cannot be cancelled and
reads thus :
15.”Valid adoption not to be cancelled
No adoption which has been validly made can be cancelled by the
adoptive father or other or any other person nor can the adopted
child renounce his or her status as such and return to the family of
his or her birth.”
Section 16 provides for presumption as to registered documents
relating to adoption. Section 16 reads thus:
“16.Presumption as to registered documents relating to
adoption
A perusal of the aforesaid provisions of the Hindu Adoptions and
10.
“ 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.”
Maintenance Act, 1956 clearly indicate that a valid adoption is one which
fulfills the requirements of section 6. Further, section 15 provides for a
complete protection on adoption and the status so created on adoption.
Section 16 provides that a document registered as per the provisions of
in adoption and taking in adoption, creates a presumption in law that the
adoption has been made in compliance with the provisions of the Act,
unless such fact is disproved.
law which records the adoption duly executed between the person giving
11.
In the light of the aforesaid provisions of the Act it is clear that the
adoption as undertaken in the present case by Mr.Mahesh Dedhia is in
conformity with the provisions of section 5 and section 6 of the Hindu
Adoptions and Maintenance Act 1956 in the absence of any contrary
material. Further section 15 cannot be overlooked which provides that a
valid adoption cannot be cancelled by the adoptive father or mother or
any other person nor can the adopted child renounce his or her status as
such and return to the family of his or her birth. Section 16 of the Hindu
Adoptions and Maintenance Act 1956 has created a presumption of a valid
adoption on the basis of a registered document of adoption. The reason as
recorded by the respondent no.2 that the application of the petitioner
ought to contain the name of the biological parents, in view of the divorce
decree and the deed of adoption goes completely contrary to the clear
provisions of the Hindu Adoptions and Maintenance Act, 1956 which we
have extracted above. This insistence on the part of respondent no.2
cannot be sustained for two reasons; firstly that the name of the biological
father has lost its relevance on account of the valid deed of adoption, as
for all purposes the legal status as created by virtue of a valid deed of
adoption can only be considered. This is the requirement of sections 5 and
6 read with sections 15 and 16 of the Act. A presumption other than that
what is created by these provisions cannot be envisaged by the passport
authority in considering a passport application involving such facts. The
legal effect of a valid adoption deed just cannot be overlooked by the
Passport Authorities. The communication dated 6.5.2014 does not take
into consideration these requirements of law and hence cannot be applied
when there is a valid adoption in question. In cases where there is a valid
adoption as per the provisions of the Act, the passport authority cannot
insist that the applicant furnish the name of the biological parents. Such
insistence obliterates the status of a person as created by a valid adoption
and nullifies the deed of adoption which has all the sanctity and validity in
view of the said provisions of the Act.
12.
In the present case, apart from the valid adoption deed several
other documents were placed for consideration of the respondent no.2
along with the passport application namely the PAN card, Adhar card, the
School Identity and in addition to the Decree of Divorce, Deed of Adoption
these documents were not rejected by the respondents. All these
documents unequivocally went to show that the minor son Master Jash
had no legal relationship whatever with his biological father who himself
had given up all claims in respect of Master Jash. This was also
abundantly clear from the decree of divorce as also the Deed of Adoption
to which Mr.Jayesh Vallabhji Gala the former husband of the petitioner
was a party. We have therefore, no hesitation to hold that the respondent
no.2 ought not to have issued the communication dated 6.5.2014 so as to
compel the petitioner to write the name of the biological father of her son
Master Jash. This insistence on the part of respondent no.2 in the teeth of
the Deed of Adoption dated 23.4.2009 as also the clear provisions of the
hereinabove.
Learned counsel for the petitioner has appropriately placed reliance
13.
Hindu Adoptions and Maintenance Act, 1956 as examined by us
on a decision of the Division Bench of this Court in Writ Petition No.3078
of 2013 in the case of Alpana Harsham vs Union of India & ors. In the
facts of the said case the Division Bench had held that it was not open for
the passport authorities to question the custody of the son as received by
the mother of the petitioner under a valid decree of divorce as also it was
not open for the passport authorities to question about the validity of
adoption when the same was registered. It was held that it was only the
first husband who could raise an objection and which was not raised. It
was therefore, held that it was not open to the Passport Authorities to
raise a question about the validity of the adoption when the petitioner
therein had made an application for changing the name of her son in
view of the Adoption Deed.
14. In the light of the aforesaid discussion the impugned action on the
part of Respondent no.2 of issuing a communication dated 6.5.2014 to the
petitioner to insist for disclosure of the name of the biological father of
Master Jash is wholly without application of mind and patently contrary to
the provisions of sections 5,6,15 and 16 of the Hindu Adoptions and
Maintenance Act, 1956.
15.
We therefore, allow the present petition by directing the
respondents to accept the application of the petitioner's minor son 'Master
Jash Mahesh Dedhia' and consider the same for issuance of a passport
without insisting for compliance of the directions as contained in the
communication dated 6.5.2014. The Application shall be decided within
45 days from today.
Writ Petition is allowed in the aforesaid terms. Parties to bear their
own costs.
(A.S.Oka, J)
No comments:
Post a Comment