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2004 DIGILAW 325 (RAJ)

Hira Lal v. State of Rajasthan

2004-03-05

O.P.BISHNOI, RAJESH BALIA

body2004
JUDGMENT 1. - Heard learned counsel for the petitioner as well as the learned Additional Advocate General.The petitioner challenges the order dated 27.3.2003 (Annex.1), by which he has been held to be disqualified to hold the office of Sarpanch, to which he was elected, in exercise of the powers under Section 39(2) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994') by the Divisional Commissioner, Udaipur, who has been named as 'Competent Authority' by the State Government.By this petition, the validity of the provisions of Sections 39 and 2(vii) of 10 the Act of 1994 have been challenged inter alia on the ground that this amounts to abdication of necessary legislative functions to a delegate in the matter of nominating a competent authority under the Act of 1994, where a competent authority is required to discharge certain duties under the Act. Apart from the aforesaid contention, the order has also been challenged on merit.Having heard the learned counsel for the parties and after perusing the order impugned, we are of the opinion that so far as the challenge to the vires of the aforesaid provisions are concerned. they are not required to be I decided in this petition in as much as the petition must succeed on the bare perusal of the impugned order dated 27.3.2003 (Annex.1).The petitioner was served with a notice that since he had fathered a third child on 10.6.2001, therefore, he had become ineligible to hold the office of the Sarpanch either by contesting election or by continuing after election.The petitioner has not denied that he fathered a child on 10.6.2001. He puts forward his case that much prior to that. his daughter Kanchan was given in adoption to one Chand Lal Sic) Dulaji and, therefore, as on 10.6.2001, the child born to him was only a second child in existence. 2. A perusal of the impugned order goes to show that it proceeds on two mis-conceptions. Firstly, that unless the adoption-deed is registered, the adoption is not valid in law. This is wholly untenable premise under the law. When the parties are Hindu, they are governed by the Hindu Adoption and Maintenance Act. Whether under the Mitakshra law governing the principles 15 of adoption or under the statute, it is not at all a requirement that the adoption should be evidenced by a registered deed. This is wholly untenable premise under the law. When the parties are Hindu, they are governed by the Hindu Adoption and Maintenance Act. Whether under the Mitakshra law governing the principles 15 of adoption or under the statute, it is not at all a requirement that the adoption should be evidenced by a registered deed. What is the essence of adoption is giving a child in adoption by the natural parents and acceptance of such child by the recipient parents. The actual rituals required to bring adoption in existence is governed by the customs applicable to the parties. The registration of a document of adoption in terms of Hindu Adoption and Maintenance Act only gives rise to a presumption about the factum of adoption dispensing with the proof of actual ceremony necessary for bringing out a valid adoption. This would be apparent from a bare perusal of Section of the Hindu Adoptions and Maintenance Act, 1956, which reads 25 as under: "16. Presumption as to registered documents relating to adoptionWhenever any document registered under any law for the time being in force is produced before any court purporting to record and adoption made is signed by the person giving and the person 30 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." 3. A perusal of the above provision clearly shows that it provides for a rule of evidence by raising a reputable presumption and nothing more. In case, an adoption is endorsed by a registered-deed signed by both the persons taking and giving child in adoption, the court is required to presume that adoption has taken place in accordance with the provisions of the Act. In that event, burden to prove otherwise rests on the person who challenges the factum of adoption. In case there is no registered-deed of adoption, there does not exist any presumption in favour of adoption and this fact is required to be proved like any other fact, where ever such question arises. But it does not provide registration of adoption deed as a condition of valid adoption as has been assumed by the Divisional Commissioner while passing the impugned order. 4. But it does not provide registration of adoption deed as a condition of valid adoption as has been assumed by the Divisional Commissioner while passing the impugned order. 4. It is apparent that the authority passing the order has totally misdirected itself in law by raising a presumption that in the absence of a registered document, the adoption is not valid. This mistake is apparent on the face of the order, which goes to the root of the matter. 5. Equally untenable is the second reason which has prevailed with the so authority, when it says that in the absence of any provision in the Act of 1994 about recognition of adoption giving a child in adoption cannot result in taking away the effect of Section 19 of the Act. if the law recognises adoption and there is no prohibition in the statute, with which we are concerned, against it, if a valid adoption has taken place, the legal consequence follows and it cannot be nullified on unfounded presumption or assumption on the part of the authority bestowed with the powers under the Act of 1994. The order betrays a total mis-apprehension of law relating to adoption and also betrays scant respect to follow the principles of natural justice. The question of adoption affects substantive rights of the parties and their civil status. Without holding proper enquiry, deciding the question of adoption in a perfunctory manner, needs to be highly depreciated. The order has been passed in a mechanical manner without taking into consideration the facts and law and, therefore, it cannot be allowed to stand. 6. The petition is accordingly allowed and the impugned order dated 27.3.2000 is quashed. 7. There shall be no order as to costs.Writ Petition Allowed-Impugned Order Set Aside. *******