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2014 DIGILAW 350 (CHH)

Pradeep Puri Goswami v. Nidhi Goswami

2014-09-19

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Ku. Nidhi Goswami is daughter of Dilip Puri Goswami and the applicant- Pradeep Puri Goswami is the brother of Dilip Puri Goswami. She filed an application under Section 125(1) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for brevity) pleading inter alia that she was adopted by the applicant herein Pradeep Puri Goswami, as he had no issue of his own and he asked her father Dilip Puri Goswami to give his daughter on adoption and she was adopted as per Hindu Rites and Rituals, thereafter, she became the adopted daughter of the present applicant- Pradeep Puri Goswami. There is no formal deed of adoption. It was further pleaded that applicant- Pradeep Puri Goswami after the death of his wife Premlata Goswami, performed second marriage and blessed with a daughter Ku. Geetanjali and, since then, the applicant herein started neglecting her and failed to discharge his duty towards her as a father and failed to provide food, clothing and educational expenses, as such, she is unable to maintain herself and she is entitled for maintenance from her adopted father. The present applicant filed his counter-affidavit and specially denied the factum of adoption by stating inter alia that Ku. Nidhi Goswami is residing with her natural father Dilip Puri Goswami and further pleaded that in order to grab his property, such an application has been filed. It was also pleaded that a Civil Suit No. 50-A/2007 has been filed by non-applicant herein Ku. Nidhi Goswami, which is pending consideration and therefore, she is not entitled for maintenance. 2. The Family Court, by its impugned order dated 28/07/2012, allowed the application holding that the non-applicant is adopted daughter of the present applicant, as such, she is entitled for maintenance. 3. Questioning the legality and validity of the impugned order dated 28/07/2012, passed by Family Court, granting maintenance to the non-applicant, applicant-Pradeep Puri Goswami filed the present criminal revision. 4. Appearing for the applicant Mr. Adil Minhaj, learned counsel would submit that the non-applicant has miserably failed to prove the fact of adoption in accordance with Sections 6, 7 and 11 of the Hindu Adoptions and Maintenance Act, 1956 ('Act of 1956' for brevity), therefore, the impugned order deserves to be set-aside. 5. Appearing for the non-applicant Mr. 4. Appearing for the applicant Mr. Adil Minhaj, learned counsel would submit that the non-applicant has miserably failed to prove the fact of adoption in accordance with Sections 6, 7 and 11 of the Hindu Adoptions and Maintenance Act, 1956 ('Act of 1956' for brevity), therefore, the impugned order deserves to be set-aside. 5. Appearing for the non-applicant Mr. R.S. Patel, learned counsel would support the impugned order and submit that the Family Court has rightly granted maintenance, as there is overwhelming documentary evidence on record to prove the fact of adoption. 6. I have heard learned counsel appearing for the parties and considered their rival submission made therein and also perused the impugned order with utmost circumspection. 7. The short question falls for consideration in the revision is whether the fact of adoption has duly been established by the non-applicant herein? 8. In order to consider the submission made at the bar, it would be proper to notice Sections 6, 7, 8, 11, 12 and 16 of the Act of 1956 and for the sake of convenience, it is hereby reproduced 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." "7. Capacity of male Hindu to take in adoption.--Any male 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 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. Explanation.--If a person has more than one wife living at the time of adoption, the consent of all the wives in necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso." "8. Explanation.--If a person has more than one wife living at the time of adoption, the consent of all the wives in necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso." "8. Capacity of a female Hindu to take in adoption.--Any female Hindu-- (a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or 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, has the capacity to take a son or daughter in adoption. "11. Other conditions for a valid adoption.--In every adoption, the following conditions must be complied with:-- (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption": Provided that the performance, of datta homam shall not be essential to the validity of adoption." "12. Effects of adoption.--An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption." "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." 9. A plain and careful reading of the above quoted provisions of Act would show that Section 6 of the Act of 1956 provides for requisites of a valid adoption. Section 7 of the Act of 1956 lays down that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption subject to the rider provided in the proviso, which lays down that if a male Hindu has a wife living then he shall not adopt except with the consent of his wife. Section 11 of the Act of 1956 lays down other conditions of the valid adoptions. Section 12 of the Act of 1956 deals with effects of adoption. Section 11 of the Act of 1956 lays down other conditions of the valid adoptions. Section 12 of the Act of 1956 deals with effects of adoption. It declares that from the date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand severed and replaced by those created in the adoptive family. Section 16 of the Act of 1956 embodies a rule of presumption. 10. In order to establish the fact of adoption, the testimony of following witnesses on behalf of the non-applicant has been brought on record:-- "(i) Dilip Puri Goswami (AW-1), the natural father of the non-applicant has stated that the applicant- Pradeep Puri Goswami his brother, had no issue, therefore, he has adopted my daughter in the year 1995 as per Hindu Rites. (ii) Hompuri Goswami (AW-2), aged about 85 years, father of present applicant and grandfather of the non-applicant has stated that with the consent of both the families, Ku. Nidhi Goswami non-applicant herein was adopted by the present applicant-Pradeep Puri Goswami. (iii) Ku. Nidhi Goswami (AW-3) non-applicant herein has stated that she was adopted by the applicant herein and after the death of her adoptive mother, she has been brought back to her natural father to stay." 11. Per contra, the applicant herein Pradeep Puri Goswami has examined himself as NAW-3, he has stated that he has never adopted the non-applicant herein as his adopted daughter and her name has incorrectly been mentioned in the records. Smt. Rama Goswami, wife of Suresh Kumar Goswami has been examined as NAW-2, she has also stated that the applicant herein had no issue and she has denied the fact of non-applicant being taken on adoption. Baldaupuri (NAW-3), father's brother of the applicant in his statement denied the fact of non-applicant being taken on adoption. 12. Thus, on analysis and close appreciation of record, it would appear that the non-applicant herein has adduced evidence to this effect that non-applicant was taken on adoption as per Hindu Rites, whereas, the present applicant has brought on record the evidence to establish that no such act of adoption was performed adopting non-applicant herein on record. 12. Thus, on analysis and close appreciation of record, it would appear that the non-applicant herein has adduced evidence to this effect that non-applicant was taken on adoption as per Hindu Rites, whereas, the present applicant has brought on record the evidence to establish that no such act of adoption was performed adopting non-applicant herein on record. There is no evidence on record to show the consent of the applicant's wife as required under Section 7 of the Act of 1956 was taken and there is also no evidence on record to show the other conditions as enumerated for the valid adoption was fulfilled and admittedly, there is no deed of adoption available on record. No evidence on record has been brought to prove that the adoption was held in a religious ceremony as well as publicity was given to adoption or invitation were sent to brotherhood, relatives and friends. Non-applicant has not given the date and time on which she was adopted and also not given place of adoption. 13. In Kishori Lal v. Mst. Chaltibai, AIR 1959 SC 504 , their Lordships of Supreme Court has clearly held that an adoption, results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicious of fraud and so consistent and probable as to leave no occasion for doubting its truth. 14. Thus, following the principle of law laid down in above-stated decision, it appears that the evidence brought on record on behalf of non-applicant to prove the factum of adoption is wholly insufficient to hold that the applicant-Pradeep Puri Goswami has adopted non-applicant Ku. Nidhi Goswami with the consent of his wife 'and the non-applicant has failed to prove her valid adoption by applicant herein by clear-cut and appropriate legal evidence, as a corollary, it is held that non-applicant is not entitled for maintenance from the applicant herein under Section125(1) of the Cr.P.C. However, this, finding is subject to and without prejudice to the judgment of Civil Suit filed by non-applicant herein. As a fall out and consequence of the aforesaid discussion, the criminal revision is allowed and the impugned order dated 28-07-2012 is hereby set-aside.