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2015 DIGILAW 515 (RAJ)

Rafiq Ahmed v. Jaipur Vidhyut Vitaran Nigam Ltd.

2015-02-25

PRAKASH GUPTA, SUNIL AMBWANI

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ORDER : The petitioner (appellant herein) applied for compassionate appointment in Jaipur Vidhyut Vitaran Nigam Limited (for short, 'JVVNL') as an adopted son of late Shri Nazar Mohd. It was stated before learned single Judge that he was adopted by late Shri Nazar Mohd. from his natural parents namely, Nahoor Mohd. and Smt. Nameeda at the age of 12 years, vide adoption deed dated 15.07.1992. 2. Late Shri Nazar Mohd. died on 19.11.2007. The Assistant Engineer (O & M) JWNL, Sambhar Lake, informed the petitioner that the Personnel Officer of the JVVNL has raised an objection on the adoption deed of the petitioner on the ground that it is not valid as per the Rules of the JVVNL. 3. Learned single Judge dismissed the writ petition on the ground that Muslim Law does not permit adoption. 4. It is submitted that an adoption deed was executed, and that a Succession Certificate has been issued in favour of the appellant under Section 372 of the Indian Succession Act, 1925 by the Additional District & Sessions Judge, Sambhar Lake on 25.09.2008, holding that the petitioner-appellant is an adopted son of late Shri Nazar Mohd. The Succession Certificate was allowed recording in the order that the respondents have not denied the adoption, nor filed any objections, and consequently, the appellant was held entitled to the entire amount of gratuity and GPF, payable to late Shri Nazar Mohd. 5. Learned counsel appearing for the appellant submits that the Muslim Law does not permit adoption, but that as an exception, the Muslim Law permits customs to prevail, under which a Muslim may also adopt a child. He has relied on judgment of learned single Judge of this Court in Mst. Bivi through L.Rs. v. Syed Ali through L.Rs. & Ors., 1997 (1) RLR 757, in which after quoting some previous judgments, learned single Judge held that the adoption is not known to Muslim Law Committee, however, by virtue of custom, Mohammedans may also have the system of adoption, and that a Muslim, who alleges that, by custom he is subject of adoption, must prove such custom and adoption. 6. We find that the judgment of the competent Court for issuance of the succession certificate under section 372 of the Indian Succession Act, 1925, was given in absence of any contest by the opposite party in the matter. 6. We find that the judgment of the competent Court for issuance of the succession certificate under section 372 of the Indian Succession Act, 1925, was given in absence of any contest by the opposite party in the matter. The judgment, therefore, is a summary judgment, which does not prove the exception of a custom in any community in the Muslim allowing adoption. 7. It is submitted that the appellant belongs to 'Kureshi' caste residing in Sambher Lake, Jaipur where the custom of adoption is prevalent. 8. We do not find any error of law in the judgment of learned single Judge, by which he has dismissed the writ petition on the ground that the adoption is not permitted in Muslim Law. In case, any exception by way of custom, as pointed out by learned single Judge in Mst. Bivi through L.Rs. v. Syed Ali through L.Rs. & Ors. (supra) is prevalent, such custom must be proved, subject to its necessary ingredients, by leading appropriate evidence, to establish the custom and the adoption. This Court under Article 226 of the Constitution of India does not ordinarily, take evidence, which may prove the custom to be prevalent in any Personal Law, and the adoption in pursuance thereof. 9. The Special Appeal is, accordingly, disposed of, with liberty to the appellant to file an appropriate suit in the Court of competent jurisdiction, to prove the custom and the adoption. In case a suit is filed, the competent Court will consider the limitations on the proof of custom, and will also take into consideration whether Muslim Law applicable to the caste of the petitioner has any such custom, which permits adoption, and if any such custom is prevalent as exception, whether any valid adoption had taken place. Order accordingly.