Sunday, 7 March 2021

Whether the court can presume that wife had consented to adopt the child if she was present in the adoption ceremony?

  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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