Bombay High Court
Jigna Mahesh Dedhia vs Union Of India, Through Secretary, Dept ... on 13 October, 2014
Author: G.S.Kulkarni
Bench: A.S.Oka, G.S.Kulkarni
Rng 1
wp6755.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6755 OF 2014
Jigna Mahesh Dedhia }
age 37 years, an Adult Indian inhabitant
residing at 3, Tej Chhaya, Mamlatdarwadi
Road No.6, Malad (W) Mumbai-400 064. } .. Petitioner
vs
1. Union of India
Through Secretary,Department of Ministry }
of External Affairs having its office at
Trikoot NO.3 Hudeo Bldg, Bhikaji Kamaji
Palace, New Delhi. ig }
2. Regional Passport Officer,
Manish Commercial Centre,
216-A, Dr.Annie Besant Rd, }
Prabhadevi, Worli,
Mumbai-400 025. .. Respondents
Ms.Mamta Sadh a/w Mr.Sushil Purohit i/b Mr.Dinesh
Prakash Guchiya for Petitioner
Mr.M.S.Bharadwaj for Respondent nos.1 & 2.
CORAM: A.S.OKA & G.S.KULKARNI,JJ
JUDGMENT RESERVED ON: 23.9.2014
JUDGMENT PRONOUNCED ON: .10.2014
JUDGMENT (Per G.S.Kulkarni, J)
1. By an order dated 19.8.2014 notice for final disposal of this writ petition was issued. We have therefore, taken up the matter for final hearing.
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2. By this Petition under Article 226 of the Constitution of India the Petitioner has prayed for the following reliefs :
(a) That the Respondent may be directed by this Hon'ble Court to accept the application of Petitioner's son in the name of Jash Mahesh Dedhia and issue passport;
(b) Grant of such other reliefs as the nature and circumstances of the case may require.
3. It is the petitioner's case that the previous marriage of the petitioner with one Mr.Jayesh Gala was dissolved by a consent decree of divorce by mutual consent dated 28th January, 2005 passed by the Family Court, Mumbai. Master Jash is her son from the said marriage. Under the consent decree passed by the Family Court the custody of her minor son 'Master Jash Jayesh Gala' (as named at the relevant time) was permanently given to the petitioner.
4. On 29.5.2008 the petitioner got re-married with one Mr.Mahesh Dhanji Dedhia. The petitioner's son Master Jash was adopted by Mr.Mahesh Dhanji Dedhia vide a Deed of Adoption dated 23.4.2009 registered with the Registrar of Assurances. This Deed of Adoption is executed by Mr.Jayesh Gala in favour of Mr.Mahesh Dhanji Dedhia. A copy ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 3 wp6755.14.doc of the decree of divorce alongwith the copy of Marriage certificate of the 2nd marriage and registered Deed of Adoption is placed on the record of this petition. In pursuance of the deed of adoption the name of the minor son Master Jash was changed 'as Master Jash Mahesh Dedhia so as to insert the name of the adoptive father Mr.Mahesh Dedhia. This change in the name was notified in the Gazette of the Government of Maharashtra dated 27.5.2009. The school record also show the name of the minor son as Master Jash Mahesh Dedhia. An Adhar card and a PAN card was also issued in the same name.
5. The Petitioner on this background made an application to the passport authority for issuance of a passport for her minor son in the name of Master Jash Mahesh Dedhia. All aforesaid documents necessary for the issuance of a passport were submitted along with the said application. In response to the said application, the Passport Officer issued a letter dated 6.5.2014 informing the petitioner that the petitioner had mentioned the name of the 2nd spouse as his father. It was stated that the Passport officer had examined the application and on the basis of the standing instructions of the Ministry of External Affairs, New Delhi the petitioner was informed ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 4 wp6755.14.doc as under :
" In the event of re-marriage after divorce the name of step-father or mother cannot be written in the passport of children from the previous marriage. The relationship of the child to his biological parents subsists even after divorce by parents. It is also not possible to leave the column of father or mother blank in the passport in such cases. Therefore such applicant must write the names of their biological parents in the application form.
However, if the stepfather or stepmother is appointed by a Court as legal guardian, the name of such step-parent can be written as legal guardian."
6. On behalf of the petitioner, it is submitted that this communication dated 6.5.2014 is arbitrary and without application of mind to the facts of the petitioner's case. It is submitted that this communication of the Passport Officer does not take into consideration that there was a consent decree of divorce between the petitioner and Mr.Jayesh Vallabhji Gala passed by the Family Court, Mumbai. That the decree of divorce categorically recorded that the permanent custody of the minor son Master Jash shall continue to remain with the petitioner and that Mr.Jayesh Vallabhji Gala had thus given up his claim for the permanent custody and/or access to Master Jash. It is submitted that the decree categorically recorded the undertaking of Mr.Jayesh Vallabhji Gala that he ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 5 wp6755.14.doc shall not make any claim in that regard also in the event of re-marriage of the petitioner and would not claim any right in future. On the other hand learned counsel for the respondent has supported the decision of the respondents.
7. Having considered the aforesaid facts it is clear is that the Petitioner got re-married to Mr.Mahesh Dhanji Dedhia. Thereafter a Deed of Adoption dated 23.4.2009 came to be executed to which Mr.Jayesh Vallabhji Gala (the natural father of Master Jash), the petitioner and Mr.Mahesh Dhanji Dhedia (Petitioner's husband on re-marriage and the adoptive father) are parties whereby Master Jash is adopted by Mr.Mahesh Dhanji Dhedia. The deed of adoption was duly registered with the Registrar of Assurances. Master Jash was thus adopted by Mr.Mahesh Dhanji Dedhia the Petitioner's husband. Thereafter, intimation of the change of the name of son from "Master Jash Jayesh Gala' to 'Master Jash Mahesh Dedhia' was also notified in the Government Gazette. A PAN card, Adhar Card,School Identity Card all bear the name of the Petitioner's son as 'Master Jayesh Mahesh Dedhia.' All these documents were submitted by the petitioner along with an application for the issuance of a passport for her son Master Jash. The Passport Officer in his letter dated 6.5.2014 ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 6 wp6755.14.doc applied the standing instructions of the Ministry of External Affairs, New Delhi to record that in the event of re-marriage after divorce the name of step-father or mother cannot be written in the passport of children from the previous marriage. It was stated that the relationship of the child to his biological parents subsists even after divorce by parents and that it is also not possible to leave the column of father or mother blank in the passport in such cases. It was therefore stated such applicant must write the names of their biological parents in the application form. It was also stated that if the stepfather or stepmother is appointed by a Court as legal guardian, the name of such step-parent can be written as legal guardian.
On the basis of this reasoning the petitioner's son was not issued a passport.
8. We are of the opinion that the reasons as recorded in the communication dated 6.5.2014 issued by respondent no.2 show complete non-application of mind to the clear facts of the petitioner's case.
Moreover, the said reasons as contained in the said communication were squarely inapplicable to the petitioner's case for the reason that the biological father of Master Jash namely Mr.Jayesh Vallabhji Gala had ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 7 wp6755.14.doc permanently given up all the rights in respect of his son Master Jash in favour of the petitioner as recorded in the consent decree of divorce.
Thereafter, Mr.Jayesh Vallabhji Gala, the biological father executed a Deed of Adoption dated 23.4.2009 which was registered with the Sub-Registrar of Assurances, Mumbai whereby Master Jash was given in adoption to Mr.Mahesh Dhanji Dedhia the petitioner's husband on her re-marriage.
The legal consequence of the Deed of Adoption is that the husband of the petitioner on re-marriage has become the adoptive father and the lawful guardian of the minor son along with the petitioner. Consideration to the deed of adoption is completely absent in the communication dated 6.5.2014 issued by respondent no.2. We have come across many cases where the Passport Authorities do not take into consideration the effect of a valid deed of adoption.
9. To adjudicate the issue as arising in the present petition it would be useful to refer to the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956.(78 of 1956) (for short 'the Act'). Section 5 of the Act provides for adoption to be regulated by Chapter II. Section 5 reads thus:
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5. "Adoption 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."
Section 6 provides for requisites of a valid adoption and reads as under :
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.
Section 15 provides that a valid adoption cannot be cancelled and reads thus :
15."Valid adoption not to be cancelled-
No adoption which has been validly made can be cancelled by the adoptive father or other 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."
Section 16 provides for presumption as to registered documents ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 9 wp6755.14.doc relating to adoption. Section 16 reads thus:
"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."
10. A perusal of the aforesaid provisions of the Hindu Adoptions and Maintenance Act, 1956 clearly indicate that a valid adoption is one which fulfills the requirements of section 6. Further, section 15 provides for a complete protection on adoption and the status so created on adoption.
Section 16 provides that a document registered as per the provisions of law which records the adoption duly executed between the person giving in adoption and taking in adoption, creates a presumption in law that the adoption has been made in compliance with the provisions of the Act, unless such fact is disproved.
11. In the light of the aforesaid provisions of the Act it is clear that the adoption as undertaken in the present case by Mr.Mahesh Dedhia is in ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 10 wp6755.14.doc conformity with the provisions of section 5 and section 6 of the Hindu Adoptions and Maintenance Act 1956 in the absence of any contrary material. Further section 15 cannot be overlooked which provides that a valid adoption cannot 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. Section 16 of the Hindu Adoptions and Maintenance Act 1956 has created a presumption of a valid adoption on the basis of a registered document of adoption. The reason as recorded by the respondent no.2 that the application of the petitioner ought to contain the name of the biological parents, in view of the divorce decree and the deed of adoption goes completely contrary to the clear provisions of the Hindu Adoptions and Maintenance Act, 1956 which we have extracted above. This insistence on the part of respondent no.2 cannot be sustained for two reasons; firstly that the name of the biological father has lost its relevance on account of the valid deed of adoption, as for all purposes the legal status as created by virtue of a valid deed of adoption can only be considered. This is the requirement of sections 5 and 6 read with sections 15 and 16 of the Act. A presumption other than that what is created by these provisions cannot be envisaged by the passport ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 11 wp6755.14.doc authority in considering a passport application involving such facts. The legal effect of a valid adoption deed just cannot be overlooked by the Passport Authorities. The communication dated 6.5.2014 does not take into consideration these requirements of law and hence cannot be applied when there is a valid adoption in question. In cases where there is a valid adoption as per the provisions of the Act, the passport authority cannot insist that the applicant furnish the name of the biological parents. Such insistence obliterates the status of a person as created by a valid adoption and nullifies the deed of adoption which has all the sanctity and validity in view of the said provisions of the Act.
12. In the present case, apart from the valid adoption deed several other documents were placed for consideration of the respondent no.2 along with the passport application namely the PAN card, Adhar card, the School Identity and in addition to the Decree of Divorce, Deed of Adoption these documents were not rejected by the respondents. All these documents unequivocally went to show that the minor son Master Jash had no legal relationship whatever with his biological father who himself had given up all claims in respect of Master Jash. This was also ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 12 wp6755.14.doc abundantly clear from the decree of divorce as also the Deed of Adoption to which Mr.Jayesh Vallabhji Gala the former husband of the petitioner was a party. We have therefore, no hesitation to hold that the respondent no.2 ought not to have issued the communication dated 6.5.2014 so as to compel the petitioner to write the name of the biological father of her son Master Jash. This insistence on the part of respondent no.2 in the teeth of the Deed of Adoption dated 23.4.2009 as also the clear provisions of the Hindu Adoptions and Maintenance Act, 1956 as examined by us hereinabove.
13. Learned counsel for the petitioner has appropriately placed reliance on a decision of the Division Bench of this Court in Writ Petition No.3078 of 2013 in the case of Alpana Harsham vs Union of India & ors. In the facts of the said case the Division Bench had held that it was not open for the passport authorities to question the custody of the son as received by the mother of the petitioner under a valid decree of divorce as also it was not open for the passport authorities to question about the validity of adoption when the same was registered. It was held that it was only the first husband who could raise an objection and which was not raised. It was therefore, held that it was not open to the Passport Authorities to ::: Downloaded on - 13/10/2014 23:49:12 ::: Rng 13 wp6755.14.doc raise a question about the validity of the adoption when the petitioner therein had made an application for changing the name of her son in view of the Adoption Deed.
14. In the light of the aforesaid discussion the impugned action on the part of Respondent no.2 of issuing a communication dated 6.5.2014 to the petitioner to insist for disclosure of the name of the biological father of Master Jash is wholly without application of mind and patently contrary to the provisions of sections 5,6,15 and 16 of the Hindu Adoptions and Maintenance Act, 1956.
15. We therefore, allow the present petition by directing the respondents to accept the application of the petitioner's minor son 'Master Jash Mahesh Dedhia' and consider the same for issuance of a passport without insisting for compliance of the directions as contained in the communication dated 6.5.2014. The Application shall be decided within 45 days from today.
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(G.S.Kulkarni, J) (A.S.Oka, J)
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