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2005 DIGILAW 157 (KER)

Sudarsanan Sen v. Sudarasanan

2005-02-24

PIUS C.KURIAKOSE

body2005
Judgment :- Pius C. Kuriakose, J. Petitioner in an Original Petition under S.9(4) of the Hindu Adoptions and Maintenance Act, 1956 read with S.13(1) of the Hindu Minority and Guardianship Act, 1956 seeks revision of the order of the learned District Judge dismissing the Original Petition as not maintainable. The Original Petition was filed by the revision petitioner before the District Court, Kollam seeking an order of declaration that he is the adopted son of the 3rd respondent, a citizen of the United Kingdom. Petitioner’s natural parents were arrayed as respondents 1 and 2 in the O.P. According to the petitioner, he was born to respondents 1 and 2 on 10.3.1983; all the parties are Hindus; the 3rd respondent is a British citizen who retired from the service of M/s. D.S.S. Long-benton of United Kingdom; the 3rd respondent’s wife Smt. Vijayamma Narayanan died in the year 1965; they have no issues, the 3rd respondent did not re-marry after the demise of his wife; on 15.5.1985 the 3rd respondent adopted the petitioner as his son with the consent of the petitioner’s natural parents respondents 1 and 2; the said adoption is a perfectly valid adoption in terms of the Hindu Adoptions and Maintenance Act, 1956; still on document and much less any registered document was executed for recording the said adoption. Ever since adoption the petitioner and 3rd respondent have been living as adopted child and adoptive father respectively and from that day onwards all the family ties between the petitioner and respondents 1 and 2, his natural parents remained severed and replaced by those created by the adoption. It is alleged by the petitioner that he is pursuing studies in Engineering in a college in Kanyakumari in Tamil Nadu and it is the 3rd respondent who is looking after the petitioner in all respects. The petitioner intends to go over to United Kingdom, after completion of his present course, for higher studies and the 3rd respondent is desirous of taking the petitioner over to United Kingdom. According to the petitioner, document-any proof regarding the adoption has become necessary in view of his proposed journey to the United Kingdom for joining the 3rd respondent. Hence the Original Petition seeking the relief of declaration regarding the adoption. 2. All the respondents were served with notice of the O.P. by the District Court. According to the petitioner, document-any proof regarding the adoption has become necessary in view of his proposed journey to the United Kingdom for joining the 3rd respondent. Hence the Original Petition seeking the relief of declaration regarding the adoption. 2. All the respondents were served with notice of the O.P. by the District Court. They on entering appearance filed formal statement of objections supporting the claim of the petitioner. Pursuant to orders of the Court, publicity regarding the filing of the Original Petition was given through the Government Gazette and nobody entered in response to the Gazette notification to resist the application. 3. The evidence in the case consisted of the petitioner’s testimony as PW.1 and Ext. A1, his birth certificate. The Court heard the parties and took the case up for orders. But orders were not pronounced, in view of doubts regarding the maintainability of the proceeding. Accordingly the case was reopened and the parties were heard again on the question of maintainability. After hearing, the Court dismissed the Original Petition as not maintainable taking the view that neither S.9(4) of the Hindu Adoptions and Maintenance Act nor S.13(1) of the Hindu Minority and Guardianship Act invoked by the petitioner will enable the Court to grant the relief of declaration sought for in the petition. 4. K. Thankappan, J. who considered this case for admission requested. Sri T. Krishnanunni; Advocate to assist the Court as amicus curiae and Mr. Krishnanunni agreed to do so. Accordingly I heard the arguments of Sri. C. Unnikrishnan, learned counsel for the revision petitioner and Sri. T. Krishnanunni, the learned amicus curiae. 5. Since the proceeding before the Court below was non-contentious, I am of the view that the C.R.P. itself can be disposed of without issuing notice to the respondents. 6. Sri. Unnikrishnan submitted that the Hindu Adoptions and Maintenance Act, 1956 is the special Statute which codifies the law relating to adoptions and maintenance among the Hindus and the petitioner’s adoption by the 3rd respondent is perfectly valid in terms of the provisions of that Statute. Inviting my attention to S.9(4) of the Statute, learned counsel submitted that the Court which has the power in Kerala context to grant permission to parties in the matter of adoption is the District Court which was moved by the Petitioner. Inviting my attention to S.9(4) of the Statute, learned counsel submitted that the Court which has the power in Kerala context to grant permission to parties in the matter of adoption is the District Court which was moved by the Petitioner. Learned counsel referred to S.7 of the Hindu Minority and Guardianship Act, 1956 and submitted that upon adoption the natural guardianship of the adopted son during his minority passes to the adoptive father from the natural father. According to leveled counsel, under the Hindu Adoptions and Maintenance Act, 1956, the Statute which deals with adoptions among Hindus in India and under the Hindu Minority and Guardianship Act, 1956, the Statute dealing with minority and guardianship among Hindus and also under the Guardians and Wards Act, 1890, the Court having power to deal with adoption/guardianship is the District Court. That Court, going by the Code of Civil Procedure, is the principal Civil Court of original jurisdiction and even going by the Civil Courts Act, District Courts come within the first class of Civil Courts. Therefore, even as a Civil Court, relief should have been granted, so submits Mr. Unnikrishnan. 7. Sri. T. Krishnanunni submitted that the order which is impugned in the revision cannot be faulted and is not tainted by any jurisdictional infirmity, warranting interference under S.115 of the Code. Learned counsel however submitted that the District Court as the principal Civil Court of original jurisdiction could have allowed amendment of the O.P. as an original suit and granted relief on the basis of the evidence which came on record in this case. According to Mr. Unni, this Court can eyen invoke the supervisory powers under Art.227 and straightaway grant relief to the petitioner. 8. Having considered the submissions made at the Bar and having gone through the relevant statutory provisions, especially those contained in the Hindu Adoptions and Maintenance Act which is the codification of the law in India relating to adoption and maintenance among Hindus, I am in agreement with the learned District Judge who has taken the view that the relief of declaration sought for in the O.P. could not have been granted under the statutory provisions invoked by the petitioner. Thus, the impugned order cannot be said to be vitiated by any jurisdictional infirmity warranting interference under S.115 of the Code. Thus, the impugned order cannot be said to be vitiated by any jurisdictional infirmity warranting interference under S.115 of the Code. Nevertheless, the undisputed or established facts in this case persuade me to invoke this Court's supervisory jurisdiction and grant relief to the petitioner to a certain extent. 9. It is Chapter III of the Hindu Adoptions and Maintenance Act, 1956 which regulates adoptions among Hindus in India. The taking of the petitioner in adoption by 3rd respondent as well as giving of the petitioner in adoption to 3rd respondent by respondents 1 and 2 has been established in this case. It has also been established that respondents 1 and 2 were capable on the terms of S.9 of the Statute to give the petitioner in adoption. It has been further established that the 3rd respondent had on the terms of S.7 of the same Statute the capacity at the relevant time to take the petitioner in adoption. So also, it has been established that the petitioner at the relevant time did not have any disqualification in the matter of being taken in adoption on the terms of S.10 of the Hindu Adoptions and Maintenance Act, 1956. It is also evident that all other conditions required by S.11 of the Statute for a valid adoption have been complied with in this case. The adoptive father did not have any other sons at the time of adoption nor does he have any other sons now. He is certainly more than 21 years older than the petitioner. The petitioner has not been adopted by anybody other than the 3rd respondent. The petitioner was actually given in adoption by his parents and actually taken in adoption by the 3rd respondent. There is evidence to hold that the said adoption was with the intention of transferring the petitioner from the family of birth to the family of the 3rd respondent. 10. There is no evidence in this case that Datta Homam or any other religious ceremony or ritual has been performed. But the proviso to S.11 itself will show that performance of such a rituals is not essential for validating the adoption. It would have been very convenient if there was a document recording the adoption. 10. There is no evidence in this case that Datta Homam or any other religious ceremony or ritual has been performed. But the proviso to S.11 itself will show that performance of such a rituals is not essential for validating the adoption. It would have been very convenient if there was a document recording the adoption. A registered document purporting to record an adoption signed by the persons respectively giving and taking the child in adoption enjoys presumptions under S.16 of the Statute regarding due compliance with the statutory provisions in the matter of adoption. But execution, of a registered document or any document for that matter is not a mandatory requirement. The evidence placed before the Court below, in my view, will establish that the petitioner was duly adopted by the 3rd respondent. I am not however inclined on the facts of this case to grant full relief to the petitioner, since, as already stated, the view of the learned District Judge that the Original Petition is not maintainable in law is correct. In my view, interests of justice will be satisfied if the case is remanded to the District Court itself with appropriate directions to the learned District Judge to allow conversion of the O.P. as a regular civil suit. The District Court being the principal Civil Court of original jurisdiction will be competent to grant relief to the petitioner on the suit, which comes up before it after conversion of the present Original Petition. 11. Accordingly the impugned order will stand set aside and O.P. (HM & GW) No.57 of 2004 will go back to the District Court, Kollam. That Court will allow the application for amendment of the above Original Petition as a suit incorporating a relief of declaration of the status of the petitioner as the adopted son of the 3rd respondent. After allowing such amendment, the learned District Judge shall permit the defendants to file written statement, if any, and in case they prefer not to file written statement, the learned Judge shall dispose of the suit on the basis of the evidence already adduced in the Original Petition and any further evidence which the revision petitioner may choose to adduce. The CRP is allowed as above. The parties will appear before the District Court on 11.3.2005.