Supreme Court: Under which circumstances, adoption of child is not proved even though it was through registered adoption deed?

  Adoption Deed was registered, the presumption under Section 16 of the Act of 1956 attached to it and it was for Defendant No.1 to rebut that presumption. We find that he did so more than sufficiently. Mere registration of Adoption Deed did not absolve the person asserting such adoption from proving that fact by cogent evidence and the person contesting it from adducing evidence to the contrary. It is in this respect that various suspicious circumstances attached to the adoption ceremony assume significance. While so, Plaintiff witness, himself, stated that she did not invite any of her relations to attend the adoption ceremony. Normally, such occasions would not be kept secret or confidential as an adoption would usually be made with much pomp and celebration. The clandestine manner in which the alleged adoption is stated to have taken place raises a doubt but the same has not been adequately explained. Further, no evidence was adduced to prove that relations between owner and defendant no.1, her grandson, had fallen out. The document also did not record any reasons as to why owner was not happy with Defendant No.1, whose marriage she had performed a few months earlier.[Para 46]

50. The actual giving and taking of the child in adoption, being an essential requisite under Section 11(vi) of the Act of 1956, there was no convincing evidence of that act also in the case on hand. Interestingly, there were no pictures of the actual giving and taking of the child in adoption. The purohit was seen standing or sitting behind the others and the same could not be taken to be during the ceremony of giving and taking, as he would have stood/sat in front of them, chanting mantras and incantations as per shastras. Further, there were no photographs of the datta homam, though purohit claimed that he had performed the same. Even though it was no longer considered an essential ceremony, it was of significance when performed, and would have been captured for posterity by taking pictures. Strangely, though a professional photographer was stated to have been engaged for the purpose of taking pictures at the adoption ceremony, he took only three photographs and no more. This parsimony was not explained. Further, Plaintiff witness producing and marking receipt, supposedly issued by photographer to the temple, with no explanation as to how it came into her possession, also did not inspire confidence.

55. The adoption of Appellant-Plaintiff by deceased-owner was not proved in accordance with law despite the registration of Adoption Deed. The very adoption, itself, was not believable, given the multitude of suspicious circumstances surrounding it. The Appellant could not, therefore, be treated as her heir by adoption. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/1240/2023.

Read full Judgment here: Click here.

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Supreme Court: How to prove execution of will as per Section 69 of the Indian Evidence Act, 1872?

 For the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will. The evidence of the scribe of the disputed Will (PW 6) also casts a doubt on the identity of the executant as he specifically stated that a woman was sitting at a distance but he could not tell whether she was Venkubayamma and he could not also tell whether Venkubayamma had signed the document. In effect, Ex. A10 Will was not proved in accordance with law and it can have no legal consequence. Nalini Kanth's claim of absolute right and title over Venkubayamma's properties on the strength thereof has, therefore, no legs to stand upon and is liable to be rejected.

{Para 32}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation:  MANU/SC/1240/2023.

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Legal Consequences of Adoption of child : Inheritance Rights in the Natural and Adoptive Families

Under Indian law, an adopted child cannot claim a share in the property of their natural (biological) parents after adoption. The adoption legally severs all ties with the biological family regarding inheritance rights. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) clearly states that "all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family".

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Navigating the Adoption Process in India: Legal Framework and Procedures

 Adoption in India is governed by a complex legal framework primarily consisting of the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015. These laws outline the eligibility criteria for both adoptive parents and children, as well as the procedural requirements for a valid adoption.

Legal Framework

Hindu Adoption and Maintenance Act, 1956 (HAMA)

- Eligibility to Adopt: Under HAMA, any male Hindu who is of sound mind and not a minor can adopt a child, provided that he has the consent of his living wife unless she has been declared incompetent by a court. Female Hindus can adopt if they are unmarried, widowed, or divorced.

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Important highlights of SC Judgment Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

 1. No Fundamental Right To Marry.

The Supreme Court unanimously held that there was not fundamental, unequivocal right to marry in India.

2. On Striking Down The Special Marriage Act & Allied Laws

Another point on which the entire bench agreed was to not strike or read the Special Marriage Act (SMA) and its allied laws down.

3. On Rights Of Transgender Persons To Marry

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Supreme Court: Child Adopted By Widow After Death Of Govt. Employee Not Entitled To Family Pension

 It may also be appropriate to refer to the decision of this Court in Poonamal v. Union of India, MANU/SC/0359/1985 : (1985) 3 SCC 345, wherein the purpose for which 'family pension' is granted, was highlighted by this Court in the following words:

Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socioeconomic justice family pension scheme was devise to help the widows tie over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. {Para 12}

It is evident from the passage quoted above that family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. Therefore, the definition of the term 'family' cannot be extended to include those persons who were not even dependents of the government servant, at the time of his death.

12.1.  In the present case, the heirs listed Under Rule 54(14)(b) of the CCS (Pension) Rules are the immediate dependents of the deceased government servant. Therefore, persons who were not dependant on the government servant prior to his death cannot be held to be included in the definition of 'family' Under Rule 54(14)(b) of the CCS (Pension) Rules.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Decided On: 17.01.2023

Ram Shridhar Chimurkar Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Citation: MANU/SC/0041/2023.

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Bombay High Court Orders Stay On Transfer of Adoption Cases To District Magistrates.

  While considering interim relief, we must bear in mind the

primary objective which is the interest of the children and infants

who are to be adopted whether these are domestic or foreign

adoptions. The concerns of the adoptive parents are also involved.

In considering ad-interim relief, we have to bear in mind the

interests of the minors who are put up for adoption and the interests

of the adopted parents. Presently, the adoptions are being handled

by Single Judges of this Court. This has continued for a very long

period of time and nothing is shown to us to indicate why for a

limited period of time of about four weeks this should not be

continued until we finally hear the challenge. No prejudice will be

caused to any party if the existing system continues. On the

contrary, the primary interest would be protected. Moreover, we are

granting interim relief only until the next date and not indefinitely for a long period of time. We are not impressed by the arguments of delays for disposals because at least in this High Court, the the adoptions jurisdiction is one in which there is no backlog at all. Adjournments are almost never requested or ordered and disposals take place on a weekly basis. {Para 2}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) 598 OF 2023

IN

WRIT PETITION NO. 32065 OF 2022

Aadil Ebrahim & Anr ...Applicant

In the mater between

Nisha Pradeep Pandya alias Nisha Amit Gor & Anr Vs Union of India & Ors 

CORAM G.S. Patel &

S.G. Dige, JJ.

DATED: 10th January 2023

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Case Note: Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

Findings of the court

Dr. D.Y. Chandrachud, C.J.I.

(i) The following were conclusions of this court:

a. This Court was vested with the authority to hear this case. Under Article 32, this Court had the power to issue directions, orders, or writs for the enforcement of the rights in Part III.

b. Queerness is a natural phenomenon known to India since ancient times. It was not urban or elite. c. There was no universal conception of the institution of marriage, nor is it static. under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage d. Marriage has attained significance as a legal institution largely because of Regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage e. The State has an interest in regulating the intimate zone to democratize personal relationship f. The issue of whether the Constitution recognizes the right to marry did not arise before this Court in Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini

g. The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty

h. This Court could not either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court could not read words into the provisions of the SMA and provisions of other allied laws such as the ISA and the HSA because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain

i. The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law

j. In Article 15(1), the word sex must be read to include sexual orientation not only because of the causal relationship between homophobia and sexism but also because the word sex is used as a marker of identity which cannot be read independent of the social and historical context

k. The right to enter into a union could not be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom was available to all persons regardless of gender identity or sexual orientation

l. The decisions in Navtej and Justice KS Puttaswamy recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15

m. Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage

n. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage

o. The state must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the state including the police, and other persons

p. Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations was ultra vires the JJ Act, Articles 14, and 15. Regulation 5(3) was read down to exclude the word marital. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together was equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing Regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment

q. The CARA Circular disproportionately impacts the queer community and was violative of Article 15 r. The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law and s. This court record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who were in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories The Committee shall in terms of the exposition in this judgment consider the following: (1). Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death (2). In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered family for this purpose iii. Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites and iv. Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.

The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories. [340]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 1011 of 2022, Writ Petition (Civil) No. 93 of 2023,

Decided On: 17.10.2023

Supriyo and Ors. Vs. Union of India (UOI)

Hon'ble Judges/Coram: Dr. D.Y. Chandrachud, C.J.I., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, JJ.

Citation: MANU/SC/1155/2023,2023/INSC/920.

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What are essentials of valid adoption of child as per provisions of Hindu adoption and maintenance Act?

 S 6 of Hindu Adoption and maintenance Act:- 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.

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Important provisions of Hindu Adoptions and Maintenance Act, 1956 regarding adoption of child

 3. Definitions.—In this Act unless the context otherwise requires—

(c) “minor” means a person who has not completed his or her age of eighteen years.

4. Overriding effect of Act.

5. Adoptions 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.

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Under which circumstances the court must relegate parties to adoption petition to substantive suit?

  The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. In face of the objection raised by the biological parents, the issue could not be decided in summary manner as decided by the Civil Court in the Adoption Petition. The inquiry contemplated under the provisions of HAMA as regards the actual giving and taking of the child in adoption with the intent of transferring the child from the family of the biological parents to the family of adoptive parents was not conducted in the proceedings of Adoption Petition No 189 of 2021. The biological parents have disputed that the adoptive parents were present at the time of execution of the Deed of Adoption and it is their contention that the child was handed over to Ms. Julia of AHAM Foundation. Clause (vi) of section 11 of HAMA emphasizes give and take of child with intent to transfer the child from one family to another. The intention will have to be gathered from the conduct of parties at the time of actual give and take of the child which can be only conclusively proved after the evidence in that behalf has been led. In wake of the dispute being raised as regards the actual giving and taking of the child with intent to transfer the child from one family to another, evidence was required to be led.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

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Whether the court can entertain miscellaneous application after disposal of main petition?

  The adoption petition was disposed of on 16th March, 2022 and Misc. Application was filed on 18th August, 2022. The provisions of Order 20 Rule 3 of Code of Civil Procedure (CPC) provides that the judgment once signed shall not afterwards be altered or added to save as provided by Section 152 or on review. I find considerable force in the submission of learned counsel for Petitioner that once the adoption petition was disposed of by order dated 16th March, 2022, the City Civil Court became functus officio and could not have entertained Misc Application No.137 of 2022. Pertinently at the time of passing of the order dated 8th March, 2023 in Misc. Application No.137 of 2022, the same Court was seized of Short Cause Suit No.2830 of 2022 and passed the order in Notice of Motion No.4791 of 2022 on the same day. In spite of being functus officio, the City Civil Court has, on the basis of arguments and documents, decided the miscellaneous application and vide order dated 8th March, 2023 directed the custody to be handed over to the respondents herein which cannot be sustained. {Para 38}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

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Whether government circular have overriding effect over statutory provisions?

  As regards the Government Circulars relied upon by learned counsel for the respondents, the circular dated 15th May, 2015 provides that as regards non institutional adoptions, registered adoption deed is enough and there is no need to produce adoption order of a court for such cases. The circular dated 31st January, 2018 the same is in respect of adoptions through institutions. A reading of the said circulars cannot be interpreted to mean that the adoption deed is required to be mandatorily registered. In any case the government circulars cannot override the statutory provisions and the circulars have been issued to facilitate the registration of births and issuance of birth certificate in respect of adopted child. {Para 39}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

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Whether it is mandatory to register adoption deed?

 The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. This was not done and the petition was rejected. The second ground was that the adoption deed was not registered. In that context if we peruse Section 16 of HAMA, it raises a statutory presumption as to registered documents relating to adoption provided that the condition precedent is satisfied and cannot be interpreted to mean that the adoption deed is required to be registered. In that context if we peruse the provisions of Section 17 of Indian Registration Act, 1908, the deed of adoption does not find mention in the documents required to be compulsorily registered.  The provisions of HAMA do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. In the present case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption. 

{Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

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Whether order passed in an inquiry under O 22 R 5 of CPC is a decree?

 In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C. {Para 7}

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007.

Read full Judgment here: Click here

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Whether the court has jurisdiction to question registered adoption deed in collateral proceeding?

 Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:

16. Presumption as to registered documents relating to adoption. - 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. {Para 10}

11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:

In view of Section 16 aforesaid 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 persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.

12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007

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Is a Child Adopted By Widow After the Death Of a Government Employee Entitled To Family Pension?

It is necessary that the scope of the benefit of family pension be restricted only to sons or daughters legally adopted by the government servant, during his/her lifetime. The definition of 'family' is narrowly worded under the CCS (Pension) Rules, in the specific context of the entitlement to 'family pension' and in relation to the government servant. Therefore, the word "adoption" in Rule 54(14)(b)(ii) of the CCS (Pension) Rules, in the context of grant of family pension, must be restricted to an adoption made by a government servant during his/her lifetime and must not be extended to a case of adoption made by a surviving spouse of the government servant after his/her death. This is because the object of the provision is to lend succour to a son till he attains the age of twenty-five years and unmarried or widowed or divorced daughter; similarly to the adopted son or unmarried adopted daughter when such an adoption had been made by the government servant during his/her lifetime.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Ram Shridhar Chimurkar Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Decided On: 17.01.2023.

Citation: MANU/SC/0041/2023

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Whether Child Adopted By A Widow is Entitled To Inherit Her Deceased Husband's Property?

 There is decision of this Court on the subject and the said issue is covered by the decision in case of Banabai and others Vs. Wasudeo, reported in AIR 1979 Bom. 881 (At Nagpur). When there is direct Judgment of this Court, it needs to be followed in the said decision. In para No. 18, it is held as under :-

18. Thus it would be seen that the adoption takes effect only

from the date of adoption and not prior to the adoption. Under

the former law the adoption had the effect of relating the

adoption back to the date of death of the father. The adopted

son was deemed to be in existence at the time when the father

died. That fiction of relation back as a result of the adoption has

been done away with by S. 12. Further the provisions also limit

the rights of the provisions also limit the rights of the adopted

son in the new family and proviso (c) which is material and

which deals with the rights in the property as well the right of

management to which Mr Kherdekar wants me to extend the

principle as enunciated by the Supreme Court is that “the

adopted child shall not divest any person of any estate which

vested in him or her before the adoption.” In other words,

though the adopted son from the date of adoption becomes a

member of the adoptive family and acquires all the rights and

status which that person would acquire in the adopting family

with regard to the property, his right was controlled and is

subject to his incapacity to divest any person of an estate

which has already vested in him. Though, therefore, an

adopted son may have rights in future in the property which the

family may acquire after his adoption, with regard to the

property which has vested in any particular person before his

adoption, the adoption does not vest in him any rights with

regard to that property. The plain terms of S. 12 and in

particular proviso (c) clearly make it quite clear that the

adopted son, short of acquiring the right of management and

right to the property of his adoptive parents acquires all the

other rights and status of a natural born son in the family.

26. In case of Banabai (supra), the principle of relation back as a

result of the adoption has been done away with by section 12 of the Hindu Adoptions and Maintenance Act, 1956. Under the old Hindu law the adoption had the effect of relating the adoption back to the date of death of the father. The adopted son was deemed to be in existence at the time when the father died. That fiction of relation back as a result of adoption is no more available in view of Section 12 of said Act. Having regard to this

legal position, I am unable to accept the argument advanced by Mr Pakashsing Patil, learned counsel for the appellants. After coming into force of Hindu Adoptions and Maintenance Act, 1956, the child adopted by the widow of the co-parcener, does not get the status of the child of deceased co-parcener from the date of death of co-parcener. As such, adopted son/original defendant No.1 cannot claim share in the suit property, by stepping into the shoes of his late father who died long before in the year 1965. Therefore, I have recorded my finding against question No.1 in the negative.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 515 OF 2021

 Rajesh S/o. Panditrao Pawar,  Vs Parwatibai W/o. Bhimrao Bende

CORAM : SHRIKANT D. KULKARNI, J.

PRONOUNCED ON : 07.04.2022

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When should the Court consider a Child Born In Live-in Relationship as Child Born To a Married Couple?

  It is for the woman to recognize and decide

on recognition of fatherhood of child. If she chooses

the preference to acknowledge the biological father

at the time of conceiving, the father has every right

to be recognized as a biological father. Woman alone

has the right of choice on her body and motherhood. It

is the time when she exercises the option on

conception that reckons - a child is born to a married

couple or unmarried couple. If at the time of

conception, she has not recognized the right of

fatherhood, in the context of JJ Act, a man has no

right to recognize himself as the biological father,

except with her consent and; she continues to be

recognized as an unwed mother for the purpose of JJ

Act. Decisional autonomy is the key in privacy

rights.Once a woman acknowledges the biological father

that cannot be questioned to deny the right of

biological father on the ground of want of legal

marriage. Any such denial would amounts to encroaching

up on her decisional autonomy and freedom to choose. JJ

Act intends to exclude only such biological father, who

became father without the consent of the woman. Thus in

the light of scheme of law as above there is no

difficulty in holding that a child born in a live-in

relationship also has to be construed as a child born

to a married couple. {Para 27}

KERALA HIGH COURT

A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

Dated this the 9th day of April, 2021

Author: A.Muhamed Mustaque, J.

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Kerala high court directs all Family courts to mask adoptive parents' names while issuing the certified copies.

 In order to protect the privacy of parties

involved, the parties name shall be masked while

uploading the judgment. Publishing the names of parties

is prohibited without their consent. We noticed in

certified copy issued by the Family Court name of

adoptive parents is disclosed. Confidentiality of

adoptive parents have to be maintained in public portal

and adoption records under Regulation 45 of the

Adoption Regulations. We direct the Registrar

(District Judiciary) to give necessary directions to

all the Family Courts in the State to mask the names of

adoptive parents while issuing the certified copies.

KERALA HIGH COURT

 A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

Dated this the 9th day of April, 2021

A.Muhamed Mustaque, J.

Read full Judgment here: Click here

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