Gujarat High Court
Patel Jayantibhai Mangaldas vs Patel Maheshkumar Joitaram on 3 February, 2025
NEUTRAL CITATION
C/FA/4420/2023 JUDGMENT DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4420 of 2023
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/FIRST APPEAL NO. 4420 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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PATEL JAYANTIBHAI MANGALDAS & ANR.
Versus
PATEL MAHESHKUMAR JOITARAM & ORS.
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Appearance:
MS VIDHI J BHATT(6155) for the Appellant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/02/2025
ORAL JUDGMENT
1. Heard Ms. Vidhi Bhatt, learned advocate for the appellant and Mr. Shivam Dixit, learned Assistant Government Pleader for the respondent no.3 State. Notice issued by this Court upon the respondent nos. 1 and 2 has been duly served, however they have chosen not to appear and contest the present appeal.
2. Present appeal is directed against the impugned judgment and order dated 27.6.2023 passed by the learned 3rd Additional District Judge, Mehsana in CMA No.130 of 2022 whereby the application preferred by the present appellants under Section 9 of the Hindu Adoption and Maintenance Act, Page 1 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined 1956 came to be dismissed.
3. In nutshell the case of the appellant is as under:
3.1. The respondent no.1 has married to one Ilaben Amrutbhai in the year 1993 and out of the aforesaid wedlock Vishvaskumar Maheshkumar Patel -respondent no.2 herein was born on 19.2.1994. In the meantime, on 20.07.1994 the mother of the respondent no.2 had expired. After the death of mother of respondent no.2, the appellant who is otherwise related by blood to the deceased mother of respondent no.2 intended to become the guardian of respondent no.2. The respondent no.2 was adopted by the appellant and raised as their own child. The appellant who were married to each other had no child of their own. In the year 1996 the respondent no.1 had remarried and has own children out of second marriage. It is the case of the appellant that the respondent no.2 has been raised and taken care of as their own child. The rituals with regard to adoption has also been performed adopting the respondent no.2, however later on 17.4.2016 the appellant and the respondent herein had entered into registered adoption deed so as to legally enable the appellant to adopt the respondent no.2. It is the case of the appellant that since in the official document of respondent no.2, name of respondent no.1 continued as father of Page 2 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined respondent no.2., the need arose for the appellant to approach the Court of learned District Judge, Mehsana by preferring the application under Section 9 of the Hindu Adoption and Maintenance Act, 1956 thereby seeking declaration that they have become the guardian and parent of the respondent no.2 and seeking consequential relief to reflect name of appellant no.1 as father of the respondent no.2 in the official document viz. birth certificate, Aadhar Card, Educational Certificate of degree and other such official documents. The learned Judge without appreciating the merits of the case in light of the legal position as relied upon by the learned advocate for the appellant has proceeded to dismiss the application by impugned judgment and order dated 27.6.2023. Being aggrieved and dissatisfied with the aforesaid order, the appellants have approached this Court by way of present appeal under Section 96 of the Code of Civil Procedure, 1908.
4. Learned advocate Ms. Vidhi Bhatt, for the appellant at the outset, has invited attention of this Court to the facts of the case, and the findings recorded by the learned Judge in refusing to entertain their application under Section 9(5) of the Hindu Adoption and Maintenance Act, 1956. According to her, the learned Judge committed serious error while applying clause (iv) of section 10 of the Act of 1956, in light of the evidence brought on record. As regards the compliance of Page 3 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined condition of existence of customary provision in their caste and adoption of male child beyond 15 years is concerned, she had pointed out that the learned Judge ought to have appreciated that the registered adoption deed dated 17th February 2016 was produced on record. Under Section 16 of the Hindu Adoption and Maintenance Act, 1956, there is a presumption in law that a registered adoption deed is a valid document. The natural guardian of respondent no.2 i.e. Respondent no.1 was party to the adoption deed and had also deposed before the learned Judge regarding his willingness in giving his son in adoption. The glance of the findings and reasons recorded by the learned Judge has failed to discuss with regard to the aforesaid adoption deed executed by the parties. She had therefore submitted that the impugned order is passed without considering the documentary evidence produced before the Court and is arrived upon on surmises and conjectures, which is required to be quashed and set aside. She had further invited attention of this Court to the evidence of the parties, as well as of the witnesses at Exh.6, 7 and 9 and 16, which clearly establishes the condition as regards existence of custom practice in Patel community to adopt a person who is above 15 years of age. She had further pointed out that there was no rebuttal to the aforesaid oral as well as documentary evidence produced before the Court. Page 4 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025
NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined Neither there was any reason for the learned Judge to disbelieve aforesaid witnesses in absence of their credibility being doubted or challenged. She had therefore submitted that sufficient material had been brought on record, satisfying the Court about compliance of condition as required to be fulfilled as per clause (iv) of section 10 of the Hindu Adoption and Maintenance Act, 1956 4.1. On the legal aspect, the learned advocate had referred to the official website of the Collectorate Mehsana. The history of the constitution of District Mehsana suggests that Mehsana was initially established by Masaji Chawda of Chhabra Dynasty in the year Vikram Sampath 1414. Later on Gaikwad established its main headquarters in Mehsana in 1902. After Independence in 1947, it was merged with the Union of India and it was part of Bombay State later on in 1960 with the division of Bombay State into Maharashtra and Gujarat , Mehsana became part of the State of Gujarat. She had further pointed out that in Mulla's Hindu law, 14th edition at page 550 as referred to in the case of Kodi Rama, Pa Alias Shirke, dead by his heirs and legal representatives, and another versus Narayan Kodi Ba Pa, 1991 (2)SCC 218, it is held that in the Bombay State, a person may be adopted at any age, though he may be older than the one who adopt, and though he may be married and have children, the custom is Page 5 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined judicially recognised in the Bombay State as regards adoption of a child at any stage. She had therefore submitted that the custom of adopting a major child beyond 15 years is judicially recognised in the Bombay State.
4.2. Apart from the aforesaid submissions, learned advocate had relied upon the judgement of this Court in the case of Mukesh Kumar Govindbhai vs. Assistant Collector and others 2016 SCC Online (GUJ) 9029, the learned Judge of this Court while examining the issue as to whether he was adopted son and whether it was valid or not and the issue as to whether a Patel community person can be adopted as a son of Sadhu community person, after taking into consideration Section 10 of the Hindu Adoption and Maintenance Act, 1956 reiterated the legal position that the prohibition contained in clause (iv) of Section 10 against adoption of a person who has completed the age of 15 years has no meaning in relation to male persons adopted in the territories which were comprised in the former State of Bombay which include the District of Satara from where the appeal arises. The Court further held that the expression "custom " and "usage" as defined is inclusive. Section 3 of the said act include not only customs and usage in the ordinary sense, which have obtained the force of law among Hindus in any local area, tribe, community, group or family, but also text, who is an Page 6 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined interpretation of Hindu law, which have been continuously and uniformly observed and have obtained the force of law amongst Hindus in any local area, tribe, community, group or family. The reliance was also placed on the judgement of Hon'ble Supreme Court, in the case of Atluri Brahmanandam, dead through legal representatives versus Anne Sai Bapuji reported in 2010(14) SCC 466 wherein the Hon'ble Supreme Court has held that the decision of High Court, recognising existence and validity of a custom in the State gets blinded into law and is not required to be proved. She has therefore submitted that the exception to section 10 (iv) is satisfied and since the custom and adoption is also recorded in register deed, Court can presume under Section 16 that adoption deed has been made in compliance with the provisions of Act. She has therefore submitted that to quash and set aside the impugned order and to grant prayers made in their application preferred under section 9(5) of the Hindu Adoption and Maintenance Act, 1956.
5. Having heard learned advocate appearing for the applicant and perused the impugned judgement and order passed by the learned judge in light of the legal position as well as the documentary and oral evidence produced on record, which is placed for consideration before this court . The findings and reasons assigned by the learned Judge while not entertaining Page 7 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined the application preferred by the applicants under section 9(5) of the Act of 1956 is essentially challenged on the ground that the condition as envisaged in clause (iv) of section 10 has not been fulfilled in absence of any cogent evidence being brought on record to establish that custom practice prevailed to adopt a child above 15 years in light of section 10 of the Act of 1956 in the Patel community. Thus, the only question which falls for consideration for this Court in the present appeal is :
"whether the learned Judge committed any error in arriving at a conclusion that no evidence has been brought on record by the applicant to establish that there exist a custom practice in the Patel community, which permits the adoption of a child, having not completed the age of 15 years as provided under clause (iv) of section 10 of the Hindu Adoption and Maintenance Act, 1956.?"
6. To appreciate the controversy involved, it would be appropriate to look into the relevant provisions. Section 10 and Section 16 of the Hindu Adoption and Maintenance Act, 1956 of which reference has been made reads as under:
Section 10: Persons who may be adopted.-- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:--
(i)he or she is a Hindu;
(ii)he or she has not already been adopted;Page 8 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025
NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined
(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. Section 16: Presumption as to registered document 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."
5.1. The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in the case of Atluri Brahman Nanda (supra), the court observed as under:
"12. We are concerned for the purpose of this case with clause (iv) of Section 10 which provides that a person to be adopted should not have completed the age of 15 years. But there is also an exception provided therein to Page 9 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined the aforesaid required qualification which provides that if there is a custom or usage applicable to the parties permitting persons who have completed the age of 15 years being taken in adoption, such a person could also be validly adopted. On the other hand, the effect and the implication of Section 16 of the Act is that if there is any document purporting to record an adoption made and is signed by the person giving as well the person taking the child in adoption is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disproved.
13. There is no denial of the fact in the present case that the respondent was more than 15 years of age at the time of his adoption. But the respondent has relied upon the exception provided in section 10 (iv) and has proved by leading cogent and reliable evidence like Ex. A-8 that there is a custom in the "Kamma" community of Andhra Pradesh for adoption of a boy even above the age of 15 years. Therefore, the aforesaid exception which is engrafted in the same part of the provision of 10 of the Act was satisfied. Since the aforesaid custom and aforesaid adoption was also recorded in a registered Page 10 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined deed of adoption, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the respondent has utterly failed to challenge the said evidence and also to disprove the aforesaid adoption.
14. Reference has also been made to a Division Bench decision of the Andhra Pradesh High Court reported in 1964 Andhra Weekly Reporter p.156. In the said decision, the Division Bench has recognized that there is a custom among the members of the "Kamma" caste to adopt a boy of more than 15 years old and that such custom is valid. The said decision rendered by a Division Bench in 1964 has stood the test of time and has remained binding till date.
15.In the case of Ujagar Singh v. Mst. Jeo reported in AIR 1959 SC 1041, this Court has held that the ordinary rule is that all customs general or otherwise have to be proved, but under Section 57 of the Evidence Act, 1872 nothing need to be proved of which the Court can take judicial notice. It was also held that when a custom has been repeatedly recognized by Courts, it is blended into the law of land and proof of the same would become unnecessary under Section 57 of Evidence Act, 1872.
16. The aforesaid decision is squarely applicable to the Page 11 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined facts and circumstances of the present case. The Andhra Pradesh High Court has recognized such a custom among the "Kamma" community of Andhra Pradesh of taking in adoption of a person even above the age of 15 years of age and has held the same to be legal and valid."
5.2. Thus, the court while interpreting the aforesaid provisions, observed that for the purposes of clause (iv) of Section 10, which provides that a person to be adopted should not have completed the age of 15 years, an exception is carved out, which provides that if there is a custom or usage applicable to the parties, permitting persons who have completed the age of 15 years being taken in adoption, such a person can be validly adopted. Aforesaid ruling also examines the effect and implication of section 15 of the Act and held that if there is any document to record an adoption made and signed by the person giving as well as person taking the child in adoption and is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved.
7. Applying the aforesaid legal principles in the facts of the case, admittedly, the respondent no.2 is above 15 years of age Page 12 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined and respondent no.1 being the father of respondent no.2 and natural guardian has agreed of giving his child -respondent no.2 to the applicants who are otherwise the real uncle and aunt of the deceased mother of respondent no.2 and wife of respondent no.1. The parties belong to Patel community and are residing in District Mehsana in Gujarat. As rightly pointed out by the learned advocate for the applicant, it is an admitted fact that Mehsana was initially forming part of erstwhile State of Bombay, which was later on upon division of State of Maharashtra and State of Gujarat, had became one of the districts of State of Gujarat. In light of the aforesaid undisputed facts and the decision of the Bombay High Court in the case of Anirudh Jagdev Rao versus Baba Rao Er Baji reported in AIR 1983, Bombay 391 their exist the custom of adopting a child beyond age of 15 years in the State of Bombay, which include present District Mehsana. It was held by the Court that Hindu law in India is derived from various text and Commentary, some of which have by custom held the field in various parts of India. As rightly noticed by the learned single Judge of this Court in the case of Mukesh Kumar Govindbhai (Supra), the expression, custom and usage as defined in clause(a) of section 3 of the said Act of 1956 includes not only customs and usage in ordinary sense, but includes customary practices which have obtained the Page 13 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined force of law among Hindus in any local area, tribe, group or family, but also texts, rules and interpretation of Hindu law, which have been continuously and uniformly observed and have obtained the force of law among Hindus in any local area, tribe, community, group or family.
8. As regards the custom prevailing in the Patel community is concerned, in light of the decision of this court in the case of Mukesh Kumar Govind Bhai (Supra), the Court has recognised the customary practice of adopting the male child who has completed age beyond 15 years, in light of the exception as provided under clause (iv) of Section 10 of the Hindu Adoption And Maintenance Act, 1956. As held by the Hon'ble Supreme Court in the case of Atluri Brahmanandam (supra), the recognition of the aforesaid custom prevailing in the state, as well as in the Patel community has been accepted by judicial pronouncement and such decision which has remained unchallenged are binding to this Court as held by the Hon'ble Supreme Court. The custom gets blended into law and proof of fact becomes unnecessary under Section 57 of the Evidence Act, 1872. In view of Section 57 and 48 of the Evidence Act, 1872 such customary practices once became proof of the aforesaid customs having blended into law by virtue of judicial notice, no other proof thereof is required. Even otherwise in view of Page 14 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025 NEUTRAL CITATION C/FA/4420/2023 JUDGMENT DATED: 03/02/2025 undefined section 16 of the Act of 1956 and looking to the contents of the adoption deed, this court has reason to presume that adoption has been made in compliance with the provisions of the Act.
9. For the foregoing reasons, the learned judge committed serious error in ignoring the aforesaid legal position and applying the same in the facts of the case. In the result, the impugned judgement and order dated 27.06.2023 passed by the learned 3rd Additional District Judge, Mehsana in CMA No.130 of 2022 is therefore quashed and set aside. The appeal is allowed. The application preferred by the original applicants under section 9(5) of the Act of 1956, hereby stands allowed. Records and proceedings be sent back forth to the concerned trial court.
10. In view of disposal of the appeal, no orders are required to be passed in connected Civil Application and accordingly stands disposed.
(NISHA M. THAKORE,J) RATHOD KAUSHIKSINH Page 15 of 15 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:37:29 IST 2025