Himachal Pradesh High Court
Rajesh Sharma vs State Of Himachal Pradesh & Ors on 10 January, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 3717 of 2014 Reserved on: 27.12.2016 Decided on: 09.01.2017 .
____________________________________________________________ Rajesh Sharma.
.....Petitioner.
Versus State of Himachal Pradesh & Ors.
......Respondents.
__________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of 1 Whether approved for reporting?
For the petitioner : Mr. Naveen K. Dass, Advocate.
For the respondents :
rt Mr. Pushpinder Jaswal, Deputy Advocate General with Mr. Rajat Chauhan, Law Officer, for respondents No. 1 & 2.
Ms. Kamlesh Shandil, Advocate, for respondents No. 3 & 4.
Chander Bhusan Barowalia, Judge The present writ petition is maintained by the petitioner under Article 226 of the Constitution of India for issuing following directions:
"(i) That a writ petition in the nature of certiorari may very kindly be issued and the decision of the respondents, in compliance to the direction of this Hon'ble Court in CWP No. 6503 of 2013 and in COPC No. 4299 of 2013, vide annexure P-8 may very kindly be quashed and set aside.
(ii) That writ in the nature of mandamus may very kindly be issued, directing the respondents to enter the name of Master Sagar Sharma on the Parivar Register of late Sh. Deep Ram Sharma and late Smt. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:53:08 :::HCHP
Phulma Devi, and also on the Panchayat records of the Thadi Panchayat."
2. Briefly stating facts, as per the petitioner, giving rise to the present petition are that late Sh. Deep Ram .
Sharma and late Smt. Phulma Devi, both residents of village Bathoon, Pargana Khushalla Panchayat Thadi, P.O. Shoghi, Tehsil & District Shimla, H.P., adopted master Sagar Sharma, of vide Adoption Deed (Annexure P-2), duly prepared, signed by late Sh. Deep Ram Sharma and by putting left thumb impression of late Smt. Phulma Devi, the same was also rt signed by the biological parents namely Sh. Rajesh Kumar Sharma and Smt. Sonia Sharma in presence of two witnesses and sub Registrar, Shimla (Rural), vide Deed No. 294/2002. However, the representations, for correction of the revenue record were made by the petitioner before the President Gram Panchayat Thadi, SDM (Rural) and Deputy Commissioner, but the same was not done, thus the petitioner preferred a civil writ petition No. 6503 of 2013 before this Court and the same was disposed of on 09.09.2013, directing the respondents No. 1 & 2 to decide the representation of the petitioner within two months. Even after the lapse of two months, the judgment/order dated ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP 09.09.2013 was not complied with by the respondents, so the petitioner filed a contempt petition, i.e. COPC No. 4299 of 2013 and the same was disposed of on 03.12.2013, .
directing the respondents to comply with the earlier judgment/order dated 09.09.2013, passed in CWP No. 6503 of 2013, within a period of four weeks. Pursuant to the directions of this Court, the representations of the petitioner of was listed before the learned Principal Secretary, Panchayati Raj to the Government of Himachal Pradesh, rt Shimla-2 and the same was rejected/dismissed vide order dated 27.12.2013, mentioning therein that the name of master Sagar Sharma cannot be entered in the Parivar Register of late Sh. Deep Ram Sharma and late Smt. Phulma Devi, as it was in contrary to the provisions of H.P. Panchayati Raj (General) Rules 1997 "Rule 21" India. It was also mentioned in the order that the Gram Sabha refuses to enter the name of master Sagar Sharma on Panchayat records and Parivar Register, as there is already a Will regarding the said property, in the name of Sh. Heera Nand, S/o Sewakia, R/o Village Bauthian, Tehsil & District Shimla, H.P., copy of revenue record is annexed herewith as Annexure P-6. The petitioner further prays that the Adoption ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP Deed was duly prepared in accordance with the provisions of the Hindu Adoption and Maintenance Act, 1956, therefore master Sagar Sharma, being a legal heir, has a .
right to got registered in the Parivar Register also in the Panchayat records of late Sh. Deep Ram Sharma and Smt. Phulma Devi. Hence the present writ petition.
3. Respondents No. 1 & 2 by way of filing reply to of the writ petition specifically averred therein that in compliance to the orders of this Court, the representation of rt the petitioner was decided on 27.12.2013, wherein detailed order regarding each and every aspect, which was within the jurisdiction of respondent No. 1 was passed. Hence the present writ petition is nothing but, reiteration of the same facts. On merits, respondents averred that the adoption was made on 16.12.2002, the adoptive parents of master Sagar Sharma, i.e, Deep Ram Sharma, expired on 08.03.2005 and Phulma Devi, expired on 24.11.2013, however the name of master Sagar Sharma not found mentioned anywhere in the Panchayat records, including Parivar Register. The petitioner was required to take declaration from Civil Court whether the deed is genuine document, but no steps in this regard was taken by the ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP petitioner during 11 years. Legally the entry was required to be made within 21 days from the date of Adoption, thus the order dated 27.12.2013 is correct and the present petition is .
deserves to be dismissed.
4. I have heard the learned counsel for the parties and have gone through the record carefully.
5. As far as the adoption of minor Master Sagar of Sharma by the adoptive parents, from the biological parents is concerned, the same was made by registered rt Deed, copy of which is annexed herewith as Annexure P-2.
This Deed was duly signed by the biological parents, as well as the adoptive parents. The ceremonies for giving and taking in adoption are properly performed according to the law. It has also come in the Adoption Deed that the second party (adoptive parents), will look-after, manage and maintain Master Sagar Sharma as their own son and they will give him their name and he is a legal heir of the second party. Further it has also been mentioned in the Adoption Deed that Sagar Sharma has no right in the property of first party (biological parents), as he is entitled in the property of second party and in future any child borne out from the wedlock of the second party, the second party will not ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP disinherit the adopted child from their properties.
6. The Adoption Deed was appropriately executed in presence of the witnesses, scribed by Deed Writer and .
registered with the Registrar (Rural), Shimla. Now, as far as adoption is concerned, Sagar Sharma was born on 10.03.1997, at the time of adoption, he was five years old.
The adoption of a Hindu is to be made by the Hindus and of child can be given in adoption by a Hindu, as per Hindu Adoptions and Maintenance Act, 1956 (hereinafter to be rt called as "the Act"). The Act was framed, in order to legalize the right of the child which is reproduced as under:
" Adoption is the admission of a stranger by birth to the privileges of a child by a legally recognized form of affiliation. During the British rule the Traditional Hindu Law of adoption with its religious basis and sacramental elements remained in force throughout the country."
Section 5 of the Act provides as under:
"(i) No adoption shall be made after the commencement of this Act by or to a Hindu expect in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(ii) 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 expect by reason of the adoption, nor destroy the rights of any person in the family of his or her birth."
Section 6 of the Act provides requisites of a valid adoption, which is reproduced as under:
(i) The person adopting has the capacity, and also ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP 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;
(iv) The adoption is made in compliance with the other .
conditions mentioned in this Chapter.
Section 7 of the Act provides capacity of a male Hindu to take in adoption, which is reproduced as under:
of " Any made 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 rt has completely and family 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."
Section 9 of the Act provides persons capable of giving in adoption, which is reproduced as under:
(i) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(ii) Subject to the provisions of sub-Section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:
Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them 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.
(iii) Where both the father and mother are dead or have completely and finally renounced the world ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP or have abandoned the child or have been declared by a court of competent jurisdiction to be a unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the .
guardian himself.
(iv) Before granting permission to a guardian under sub-Section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or of agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation - For the purposes of this section- rt
(i) The expressions "father" and "mother" do not include an adoptive father and an adoptive mother.
Section 10 of the Act provides persons who may be adoptive, which is reproduced as under:
(i) He or she is a Hindu;
(ii) He or she has not already been adopted;
(iii) He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
7. It is clear from the Adoption Deed that the adoption was made by both the adoptive parents and they were Hindu. Biological parents, who gave their son in adoption have executed the Deed with their joint consent, ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP they were having a capacity to give in adoption and further they were Hindus, the parents, who adopted Master Sagar Sharma, were also Hindus and adopted the child .
below the age of fifteen years. The child was unmarried and eligible to be adopted in each and every aspect.
8. Adoption Deed also contains the photographs of the adoptive, as well as, his biological parents. There is no of dispute that the adoption was legal, valid and compete in all respects and executed on 16.12.2002. When the rt adoption is there, it is valid for all intents and purposes. No authority, law, enforcing agency has a right in these circumstances to say that this adoption cannot be recognized. The procedurel laws i.e, the Rule and Regulations to reflect the adoption in the records of Panchayat, revenue records is the procedure to record the adoption. Mere existence of any Rule showing that the adoption is to be recorded in such and such manner, could not take away the right of the parties which accrued to them, as of adoption.
9. It is made clear that adoption is a fact, which has happened, meaning thereby that since 16.12.2002, Master Sagar Sharma becomes the son of adoptive ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP parents, i.e, late Sh. Deep Ram Sharma and late Smt. Phulma Devi for all intents and purposes. In these circumstances, the act of the respondents to not .
recognizing this adoption is wholly arbitrary, capricious, beyond the confines of legitimacy, required to be corrected by issuing appropriate directions to them. So, present writ petition is allowed and the respondents are of directed to treat Master Sagar Sharma, as a son of late Sh.
Deep Ram Sharma and late Smt. Phulma Devi, for all intents and purposes.
rt
10. Respondents/State is directed to correct the records, as and where so required, and complete the records of past, future and correct the same, wheresoever it is required.
11. The writ petition is accordingly disposed of with costs of ` 10,000/-(Rupees ten thousand) in favour of the petitioner and against the respondents.
12. The writ petition, as also pending application(s), if any, shall stand(s) disposed of.
Chander Bhusan Barowalia) Judge 9th January, 2017 (raman) ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP .
of rt ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP