Gujarat High Court
Tushar Kanaiyalal Vyas Through Poa Mr. ... vs State Of Gujarat & 2 on 15 February, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/7864/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7864 of 2016
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TUSHAR KANAIYALAL VYAS THROUGH POA MR. KANAIYALAL NANDLAL
VYAS....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIRAL M PANDYA, ADVOCATE for the Petitioner(s) No. 1
A S TIMBALIA, ADVOCATE for the Respondent(s) No. 3
MRS KALPANA K RAVAL, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 15/02/2017
ORAL ORDER
1. Heard Mr. Viral Pandya, learned advocate for the petitioner and Ms. Kalpana K. Raval, learned advocate for respondent no.2 and Mr. Krutik Parikh, learned AGP for respondent no.1.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order or direction directing the respondent authority to mention the name of the petitioner as father in the birth certificate of his son who is minor named "Harsh".
3. The following facts emerge from the record of the petition 3.1 That the petitioner married one Neelamben d/o Madanlal Badaji Kalal on 06.11.2015. As the Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Aug 12 15:30:07 IST 2017 C/SCA/7864/2016 ORDER record indicates, the petitioner as well as Neelamben were earlier married and both had taken divorce. It is the case of the petitioner that when the present wife of the petitioner Neelamben took divorce, the first husband had waived all his rights upon son Harsh who is aged 7 years and therefore, the minor son Harsh now stays with the petitioner and Neelamban as their own son. The record indicates that Adoption Deed came to be registered on 18.11.2015 wherein the petitioner adopted the minor son Harsh.
3.2 As the record indicates, the petitioner now stays at Dubai and intends to settle there with family for which the petitioner intends to get his son Harsh admitted to school for which the name of the petitioner is required to be changed as father for taking admission in school at Dubai. As the record indicates that the petitioner applied for change of name of father, however, as the same was declined, the present petition is filed.
4. The learned counsel appearing for the petitioner has taken this Court through the factual matrix and has submitted that for all purposes, minor son Harsh is his own son, though adopted. The petitioner has also relied upon the copy of the marriage certificate of the petitioner as well as Neelamben, the judgment of the family court, Adoption Deed as well as the passport and even the photographs. Mr. Viral Pandya, learned counsel appearing for the petitioner has relied Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Aug 12 15:30:07 IST 2017 C/SCA/7864/2016 ORDER upon the judgment of this Court in the case of Rameshbhai Nathubhai Solanki Vs. Rajkot Municipal Co. through Registrar reported in 2013(2) GLR 1535 as well as judgment of this Court in the case of Amruta Vijay Vora Vs. Union of India, 2003(3) GLR 2625 and also the Judgment dated 23.03.2016 of Hon'ble Madras High Court in the case of M.Kannan vs. The Director of Public Health in Writ Petition No.24004 of 2015 to buttress his arguments. It was submitted by Mr.Viral Pandya that the petition requires consideration and the same deserves to be allowed as prayed for.
5. Ms.Raval, learned counsel appearing for respondent No.2 has relied upon the affidavitin reply filed by respondent No.2. It was contended by Ms. Raval that as the adoption has taken place of the child from the earlier marriage without prior permission of the biological father, as per the circulars dated 18.02.2016 and 10.03.2016, without the order of the Court, such change cannot be made. It was submitted by Ms.Raval that the present petition is nothing but an attempt to bypass such procedure without appropriate procedure being followed and therefore, she submitted that the petition deserves to be dismissed.
6. The learned AGP has adopted the arguments of Ms.Raval.
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7. Mr. Pandya, learned advocate for the petitioner, in reply to the same, reiterated that the petitioner relies upon the Adoption Deed and on basis of that, only seeks to change the name of the father wherein ample evidence is produced on record. It was submitted by Mr. Pandya that the biological father of the child has voluntarily waived all his rights and responsibilities towards the child Harsh which is forming part of the deed of divorce as well as decree of the family court which is legal and valid in the eye of law and therefore the petition be allowed as prayed for.
8. It deserves to be noted that by an order dated 19.01.2017, this Court permitted the petitioner to add the biological father, one Mr. Snehal Pravinbhai Jayswal as party respondent no.3. The respondent no.3, biological father, has filed an affidavit dated 15.02.2017, wherein respondent no.3 has stated that he has separated from his exwife, i.e., wife of the petitioner and has declared before this Court that at the time of divorce, both had mutually decided that custody of his son Harsh would be with his exwife, i.e., wife of the petitioner, and that he has waived all rights of his son in favour of former wife, Neelamben, the present wife of the petitioner and has stated that he has no objection if his name is replaced by the name of the petitioner as father.
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9. No other or further submissions have been made.
10. Upon considering the submissions made and on perusal of the record, it clearly transpires that by a judgment and decree dated 18.02.2012 passed by the Family Court, Ahmedabad in Family Suit No.688 of 2011, the marriage solemnized between respondent no.3 and the wife of the present petitioner, Neelamben, came to be dissolved. The said judgment records as under "The custody of the minor son shall remain with the petitioner no.2/wife in future. The petitioner no.1/husband have (sic) has waived his visitation rights to meet the minor in future."
The said decree is also registered.
11. It further appears that thereafter, a Deed of Adoption came to be registered wherein the petitioner has adopted minor Harsh and such Adoption Deed is duly registered under Registration No.7262 dated 18.11.2015. It is clear from the decree of divorce between respondent no.3 herein and wife of the present petitioner that all rights of minor son Harsh was given to Neelamben, the present wife of the petitioner and thereafter, a registered Deed of Adoption is executed, which is in accordance with law and the Adoption Deed was registered with the competent authority and at present the petitioner and his wife have become parents of minor Harsh.
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12. Section 16 of the the Hindu Adoptions and Maintenance Act, 1956, provides as under:
"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."
13. In the case on hand, the decree of divorce between the biological parents clearly provides that custody of minor Harsh would be with the wife of the petitioner and respondent no.3 as former husband, has given up all his rights. The Deed of Adoption is a registered deed which is not challenged by anybody. On the contrary, as noted hereinabove, respondent no.3 who happens to be the biological father of the minor child Harsh has expressed by way of an affidavit before this Court in this petition unequivocally that he has no objection if the petitioner's name is substituted as father. Thus, as provided under section 16 of the the Hindu Adoptions and Maintenance Act, 1956, minor Harsh is lawfully adopted and the Deed of Adoption is registered and therefore the presumption as per the provisions of section 16 of the Act can be drawn in favour of the petitioner as there is no rebuttal by the procedure known to the law. Following the ratio laid down by this Court in the case of N.R. Trivedi v. District Education Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Aug 12 15:30:07 IST 2017 C/SCA/7864/2016 ORDER Officer, Anand , AIR 2004 Guj 53, thus, from the record of this case, it appears that the presumption as regards adoption by a registered deed would be in favour of the petitioner.
14. In light of the aforesaid therefore, the following direction is issued
a) The respondent Corporation shall make entry in the birth certificate of the minor child Harsh according to the application of the petitioner and change the name of father from Snehal Pravinbhai Jayswal to the present petitioner, i.e., Tushar Kanaiyalal Vyas.
b) Such exercise shall be carried out by the respondent no.2 authority as expeditiously as possible and a fresh birth certificate of minor child Harsh with necessary entries shall be issued to the petitioner within a period of three weeks from the date of receipt of this order.
15. Petition is disposed of accordingly.
(R.M.CHHAYA, J.) bjoy Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Aug 12 15:30:07 IST 2017