The Delhi High Court held that a duly registered adoption deed carries a statutory presumption of validity and does not require a court decree for recognition by government authorities, directing registration of the adopted child and extension of benefits.
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2023/DHC/001577
W.P.(C) 4624/2021 HIGH COURT OF DELHI Date of Decision: 28th February, 2023
W.P.(C) 4624/2021 KULDEEP & ANR. ..... Petitioners Through: Mr. Rajiv Bajaj & Mr. Karan Prakash, Advs. with Petitioners in person. Mr. Dinesh Kumar and Smt. Babita in person.
VERSUS
UNION OF INDIA & ANR. ..... Respondents Through: Mr. Vivek Goyal (CGSPC) with Mr. Gokul Sharma, Adv. for UOI. Mr. Gautam Narayan, ASC, GNCTD with Ms. Asmita Singh, Mr. Unmukt Gera, Mr. Harshit Goel & Mr. Harshit Goel, Advs. for R-3.
CORAM:
JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by Petitioner No.1 - Shri Kuldeep and his wife Petitioner No.2 - Smt. Suman Lata seeking recognition of the registered adoption deed dated 25th September, 2019 without the declaration of a Civil Court. The prayers in this petition are as under:
“A. Issue a Writ of Mandamus directing the respondents to recognize the adoption deed dated 25.9.2019 as valid and further directing the respondents for publication of part II order for the birth of adopted daughter for baby Palak by the petitioners and further directing the respondents to provide requisite benefits which are available to the daughter of the petitioners of being employed with Respondent No.1 which has been denied by the Respondent No. 2 vide Letter dated 28.05.2020;”
3. The Petitioner No.1’s brother Mr. Dinesh and his wife Smt. Babita were married on 2nd March, 2006 and were blessed with a baby girl - Palak on 10th September, 2018. The Petitioner No.1, who was serving as a soldier in the Indian Army, took VRS on 31st October, 2018. Pursuant to an understanding between the two couples, Palak was agreed to be given in adoption by Shri Dinesh and his wife Smt. Babita to the Petitioners. The girl is stated to have been given in adoption to the Petitioners in front of relatives, friends and villagers.
4. The names of the Petitioners were incorporated in the birth certificate of Palak issued by the Municipal Corporation of Delhi and the adoption was carried out through an adoption deed dated 25th September, 2019, which was registered with the Sub-Registrar – IX A, Delhi. The said registered adoption deed has been placed on record.
5. Since the Petitioner No.1 is an ex-army personnel, he sought updation of his service record and registration of Palak as his daughter with the Respondent No.2 - Rajya Sainik Board (RSB), GNCTD on 4th November,
2019. On 11th November, 2019, the RSB informed the Petitioner that the adoption deed was not from the competent authority i.e. the District Court of law, hence, registration of Palak as his daughter cannot be considered. The said letter is as under: Letter dated 11th November, 2019 “ Mil Tele: 6335 Civ No: 0581-2518800 Intranet E-Mail ID: cro_recordsjr Internet EMaiIID: cro.jrcbly_army@nic.in Web: http:// Recordsjat_army.mil(6321) JAT Regiment Abhilekh Karyalaya Records The JAT Regiment PIN: 900496 c/o 56 APO 3196637/SR-JR/NEL-11 11 Nov 2019 No 3196637W Ex Sep Kuldeep VPO – Issapur Delhi – 110073 Mob No. – 9717380857 PUBLICATION OF PART II ORDER
1. Please refer to your petition received through Rajya Sainik Board vide letter No.26/C/RSB/04 dated 04 Nov 2019.
2. Documents received vide your petition under reference are retained with your service documents for wants of following clarification/documents through Zila Sainik Board. (a) An adoption deed from the competent authority i.e. District Court of Law in original not found enclosed. Sd/- Senior Record Officer for OIC Records”
6. Subsequently, the RSB vide its letter dated 6th March, 2020 recommended the case for publication. The said letter is as under: Letter dated 6th March, 2020 “Phono No: 011-2381360 Fax No: 011-23881876 Email: rsbdelhi@nic.in Rajya Sainik Board Govt of NCT Delhi 4th Floor, Tower Block. Maharana Pratap ISBT Kashmere Gate Delhi-110006 No: 261C1RSBI06 Dated: 06 03.2020 THE RECORDS JAT REGIMENT PIN-900496. C/O 56 APO
1. Pleaser refer to your letter NO. 3196637W/SR·JR/NEL-11 dated 11 Nov2019.
2. It is to Inform you that Adoption Deed signed by Sub Registrar, New Delhi for adoption of female child by No. 3196637W Ex Sep Kuldeep has already been forwarded to your office, in original vide our letter No26/C/RSB/04 dated 04 Nov 2019. photocopy of the same is also enclosed herewith.
3. It is requested to publish Part II Order for Birth in respect of adopted female child at the earliest and copy of same be forwarded to above named ESM for record. Sd/- Secretary Rajya Sainik Board (Govt. of NCT of Delhi)”
7. Thereafter, vide letter dated 28th May 2020, the RSB informed the Petitioners that the adoption deed is supposed to be issued from court of law. The said letter is set out herein below: Letter dated 28 May 2020 “Mil Tele: 6335 Civ No: 0581-2518800 E-Mail ID: fatherland.two@nic.in JAT Regiment Abhilekh Karyalaya PIN: 900496 c/o 56 APO 3196637/SR-JR/NEL-11 28 May 2020 No 3196637W Ex Sep Kuldeep VPO – Issapur Delhi – 110073 Mob No. – 9717380857
1. Please refer to your application received through Rajya Sainik Board, Delhi vide letter No. 26/C/RSB/04 dated 04 Nov 2019. As per policy, adoption deed is supposed to be issued from the court of law.
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2. You are requested to forward the adoption deed issued from the court of law. Hence, documents received vide letter under reference is returned herewith unactioned. Sd/- Senior Record Officer for OIC Records”
8. Thus, the Petitioners have approached this Court seeking recognition of the adoption of their daughter - Palak on the strength of registered adoption deed dated 25th September, 2019.
9. Mr. Rajiv Bajaj, ld. Counsel appearing for the Petitioners submits that the girl child requires regular physiotherapy and since she is an adoptive child, she is entitled to the facilities which are extended to ex-army personnel and their family. Accordingly, he submits that the adoption deed may be recognized. He relies upon Sections 15 & 16 of the Hindu Adoption and Maintenance Act, 1956 to argue that the registered adoption deed has a presumption and in fact, such an adoption deed, which is valid, cannot be even cancelled. Ld. Counsel also relies upon the judgment of the Hon’ble Gujarat High Court in C/SCA/15757/2021 titled Chhayaben v. The judgement is as under:
“14. In such circumstances and in light of undisputed facts, the opinion of biological father is not necessary and if the same is sought for, it will create further complications and delay in make the correction. As per the provision of section 16 of the Hindu Adoptions and Maintenance Act, 1956, a presumption has to be drawn in favour of the petitioners since there is no rebuttal of the adoption deed of the minor 'Devam'. The Registrar, who is the competent authority under the Registration of Births and Deaths Act, 1969 can only verify the correction of the adoption deed and if the same is found to be duly registered and valid, he has to make necessary corrections/changes in the birth records of the adopted child. In the present case, the Registrar has not questioned the registration of the adoption deed. 15. As noticed hereinabove, the impugned communication since is premised on the circulars, which are not in existence, the same is quashed and set aside. The respondent authority is directed to correct the father's name and incorporate the name of the petitioner no.2 in the birth certificate of son 'Devam' and accordingly issue a fresh certificate. The same shall be issued within a period of 01 (one) month from the date of receipt of the present order.”
10. On behalf of the Respondents it is submitted that the adoption deed would have to be recognised by a court of law in order to enable the Petitioner to register the adoptive child as his daughter and for extending benefits to her.
11. Heard counsel for the parties. Sections 15 and 16 of the Hindu Adoption and Maintenance Act, 1956 read as under:
“15. Valid adoption not to be cancelled - No adoption which has been validly made can 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. 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.”
12. The issue of presumption as to a registered adoption deed which arises in the present case has been discussed in the following judgements:
(i) Jai Singh v. Shankuntala (2002) 3 SCC 634;
(ii) Mst Deu and Ors v. Laxmi Narayan and Ors, 1996 Supreme
(iii) Saroja v. Santhilkumar and Ors, (2011) 11 SCC 483;
(iv) Ranjit Singh Dhillon v. Punjab School Education Board, AIR
(v) Khojema Saifudin Dodiya v. The Registrar of Birth and
13. The relevant part of the said judgements is as under: Jai Singh v. Shankuntala (2002) 3 SCC 634
“1. The matter under consideration pertains to the effect of statutory presumption as envisaged under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. For convenience sake, it would be worthwhile to note the provision for its true purport. Section 16 reads as 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. In the wake of the aforesaid, the
observations of the learned Single Judge in Modan Singh v. Sham Kaur stand confirmed and we record our concurrence therewith.” Mst. Deu and Ors v. Laxmi Narayan and Ors, 1996 Supreme Court (1998) 8 SCC 701
“3. 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. The High Court was fully justified in directing that the respondent be substituted in place of Smt Phulla on the basis of the registered deed of adoption produced before the court.”
Ranjit Singh Dhillon v. Punjab School Education Board, AIR 2004 P&H 382
“9. We have given our anxious thought to the entire matter. We are of the considered opinion that a bona fide mistake cannot be permitted to stand in the way of substantial justice. It is accepted by all concerned that Simarjeet had been adopted by her maternal uncle and aunt. It is also accepted by all the parties that Gurmit Kaur and Rajwinder Kaur are one and the same person i.e. The mother of Simarjeet. She is the real sister of the adopted father and the Special Power of Attorney Shivraj Singh Sidhu. The formalities for adoption have been completed. The adoption deed has
been duly registered. Once the adoption deed has been registered, respondent-Board has no jurisdiction to doubt the authenticity of the same. It was, therefore, incumbent on the respondent-Board to issue the necessary clarification in the record of Simarjeet. We are of the considered opinion that a purely family matter has been unnecessarily complicated by respondent-Board. Undoubtedly, the petitioner is entitled to the relief claimed.” Khojema Saifudin Dodiya v. The Registrar of Birth and Death/ Chief Officer, Dhoraji Nagarpalika, C/SCA/416/2022
“37. The observations of the Division Bench of the Bombay High Court are only passing observations whereas this Court in the case of Sukumar Mehta (supra) has otherwise considered the same. The Court in the Division Bench of the Bombay High Court has opined that deletion of name of biological father could be drastic. In the opinion of this Court, the refusal to do so and not correcting the birth certificate of the ward post the adoption would lead to multiple hurdles in day to day affairs connecting the dealings with various public or other authorities and the practical difficulties that they would face would be more drastic if the power under Section 15 of the Registration of Birth and Deaths Act is not exercised in favour of the parties. 38. The question of statutory presumption under Section 16 of the Adoption Act was considered by the Supreme Court in the case of Jai Singh vs Shakuntala in decision dated 14.3.2002 in Appeal (Civil) No.9469 of 1996 where it is held as under: ….. 39. The observations of the Division Bench that only the Court can consider the presumption of the
document being legal is with respect not right. The parties to the Registration Deed have consented to take the child in adoption. No objections have come from the biological father with regard to the mode and the manner of adoption and therefore as held that the presumption though being rebuttable no roadblock or dispute has been raised for the adoption of the child, relegating the parties then to undertake the rigmarole of approaching the Court when the deed of adoption is filed before the Registrar would not render the
40. Therefore in all these petitions the communications in the respective petitions by which the authorities have rejected the request of the Petitioners to carry out the corrections in the birth certificates and for insisting on an order of the Civil Court, are quashed and set aside and the petitions are allowed. The concerned make necessary corrections as prayed for by the respective petitioners herein, in the birth registers as well as their respective birth certificates. Direct service is permitted.”
14. A perusal of the aforementioned judgements show that in a case where the formalities for adoption have been completed, the adoption deed has been duly registered and there is no third party challenge to the same, a government body such as the RSB cannot doubt the authenticity of the registered adoption deed and seek a declaration by a court of law. All registered documents have a presumption as per their relevant statutes and a court of law is not called upon to give a declaration in all such cases, unless there is a challenge.
15. In view of the settled legal position as set out in the aforementioned judgements, the provisions of the Hindu Adoption and Maintenance Act, 1956 and the adoption deed having been registered through a competent authority in accordance with law, no decree of Court of law would be required in to recognise the registered adoption deed of Palak.
16. Further, the statements of the biological parents and adoptive parents of Palak have been recorded today and the Court is satisfied with the genuineness of the adoption which is between two brothers and their wives. The child has been given in adoption by one brother and his wife to the other brother and his wife.
17. Accordingly, Palak is declared as the adoptive daughter of the Petitioners i.e. Shri Kuldeep and his wife Smt. Suman Lata.
18. Copy of this order shall be communicated by Mr. Anurag Ahluwalia, ld. CGSC to the RSB as also to the Secretary, Ministry of Defence, Union of India immediately so as to enable Palak, as the daughter of Shri. Kuldeep to avail of the medical facilities which are extended to ex-army personnel and their family.
19. In view of the prayers in the present petition, the GNCTD is directed to publish Part II order to the effect that Palak is the adoptive daughter of the Petitioners.
20. The petition is disposed of in the above terms. All pending applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
FEBRUARY 28, 2023
dk/kt
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