Sunday, 7 March 2021

Whether the contents of the adoption deed can rebut the presumption of the registered adoption deed?

  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.

Read full Judgment here: Click here

Print Page

No comments:

Post a comment