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Calcutta High Court · body

2016 DIGILAW 48 (CAL)

Arun Mondal v. Director, Directorate of Health Services

2016-01-15

DEBI PROSAD DEY

body2016
JUDGMENT : 1. Shri Chaman Dass, being an adoptive father of Master Arun Mondal, has prayed for correction of the name of the parent of Master Arun Mondal before the authority but, his application was turned down. The fact of the case is that Master Arun Mondal was adopted by Shri Chaman Dass on the strength of a registered deed, vide Annexure P-1. Thereafter, the petitioner submitted a detailed representation before the respondent No. 2 for issuance of birth certificate in favour of Master Arun Mondal by incorporating the name of Shri Chaman Dass as father, vide Annexure P-2. 2. It is the specific case of the petitioner that the authorities did not adhere to such application submitted by Shri Chaman Dass instead the authorities handed over one circular of the Deputy Registrar General (CRS). The respondent authorities have duly appeared in this proceeding and submitted affidavit-in-opposition. The specific case of the respondents is that the deed of adoption, as submitted by the petitioner, is invalid and the said deed being hit by Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956, cannot be given effect to. 3. Learned advocate for the petitioner contended that the Hon'ble High Court in MAT No. 025 of 2014 has specifically directed that the birth certificate should be amended in case of change of custody in terms of Sec. 41(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000. 4. Learned advocate for the petitioner further contended that a valid adoption deed was produced with the prayer for incorporating the name of Shri Chaman Dass in the birth certificate of Master Arun Mondal but, the authorities did not adhere to such request. 5. It is apparent from the facts and circumstances of this case that on the strength of a registered deed, Shri Chaman Dass adopted Master Arun Mondal, though Shri Chaman Dass has had one son and daughter. It is apparent from the said deed [Annexure P -1] that Shri Chaman Dass had one son and daughter yet Chaman Dass adopted Master Arun Mondal in order to provide him education. The father of Master Arun Mondal died suddenly and the mother of Master Arun Mondal got married for the second time. That was the reason for adopting Master Arun Mondal by Shri Chaman Dass. 6. It is true that there cannot be two birth certificates for self same person. The father of Master Arun Mondal died suddenly and the mother of Master Arun Mondal got married for the second time. That was the reason for adopting Master Arun Mondal by Shri Chaman Dass. 6. It is true that there cannot be two birth certificates for self same person. Admittedly, the name of the natural parent was recorded in the birth certificate of Master Arun Mondal. The decision of our High Court in MAT No. 025 of 2014 has specifically stated that the circular dated 12.03.2012 was necessitated because of inaction on the part of adoptive father or the institutions giving the child in adopt ion having not taken any steps for registration of the birth of such children. 7. A pertinent question raised by the respondents is that the so called deed of adoption is hit by Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956. The conditions for valid adoption have been enumerated under Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956. Sec. 11 of the Hindu Adoptions and Maintenance Act clearly stipulates that the adoptive father shall not have a son, son's of son or son's son living at the time of adoption. 8. It is apparent from the deed under reference that Shri Chaman Dass has had one son when the deed of adoption was registered. That goes to show that the deed under reference is definitely hit by Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956. Therefore, the respondents are not bound to admit the said registered deed as a valid deed in order to correct the birth certificate of Master Aran Mondal. 9. I would like to make it clear that the birth certificate may safely be corrected on the strength of a valid deed. There is no bar to correct the birth certificate under changed circumstances. The circular dated 12.03.2012 refers adoption order or deed. 10. It is the specific contention of the learned advocate for the respondents that the deed, being hit by Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956, cannot be adhered to. 11. There is no bar to correct the birth certificate under changed circumstances. The circular dated 12.03.2012 refers adoption order or deed. 10. It is the specific contention of the learned advocate for the respondents that the deed, being hit by Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956, cannot be adhered to. 11. Learned advocate for the petitioner has drawn my attention to the Sec. 16 of Hindu Adoptions and Maintenance Act, 1956, which may be reproduced as follows: "Section 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." 12. In support of his contention, the learned advocate for the petitioner has referred to the decisions reported in : [1998] 8 SCC 701 (Mst. Deu and others v/s. Laxmi Narayan and others). The Apex Court, in terms of Sec. 16 of the Hindu Adoptions and Maintenance Act, 1956 has specifically observed that 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 mentioned therein the court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. The respondent authorities have had no locus standi to challenge the said registered deed of adoption and cannot raise any objection with regard to such registered deed I unless the same is being disproved or declared void in any court of law. 13. In the decision reported in : [2013] 4 SCC 97 : ( AIR 2013 SC 1204 ) (Laxmibai (Dead) thr. LRs. an Anr. v/s. Bhagwantbuva (Dead) thr. 13. In the decision reported in : [2013] 4 SCC 97 : ( AIR 2013 SC 1204 ) (Laxmibai (Dead) thr. LRs. an Anr. v/s. Bhagwantbuva (Dead) thr. LRs.& Ors), it has been observed by the Apex Court that substantial compliance of the legal requirements, specified in Sec. 16 of the Act 1956 and when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best. 14. In the given facts and circumstances, it transpires that the father of Master Aran Mondal died prematurely; and, the mother of Master Aran Mondal is not in a position to look after the child. Chaman Dass, accordingly, adopted Aran Mondal and in order to provide him education, it is necessary to incorporate the name of Chaman Dass as the father of such adopted child. It is submitted by the learned advocate for the petitioner that no benefit can be extended to the minor Aran Mondal, unless the name of the Chaman Dass is incorporated in the birth certificate of Aran Mondal as his adoptive father. 15. I have already stated in the foregoing paragraphs that the respondents have no locus standi to challenge the registered deed though the same may be challenged on the ground of Sec. 11 of the Hindu Adoptions and Maintenance Act, 1956. 16. On the contrary, the Hon'ble Apex Court has decided in unequivocal terms that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best. 17. If this Court direct the authorities to incorporate the name of Chatnan Dass, as father of the Master Arun Mondal in that event the said Chaman Dass would be able to extend all sorts of benefits to the minor child Arun Mondal. 17. If this Court direct the authorities to incorporate the name of Chatnan Dass, as father of the Master Arun Mondal in that event the said Chaman Dass would be able to extend all sorts of benefits to the minor child Arun Mondal. If this court accept the contention of the respondents, in that event, in my considered opinion, the Court will be failing in its duty in extending such substantial justice to the petitioner being entangled with technicalities of law. 18. Keeping in view of the proposition of law as enunciated by the Hon'ble Apex Court and in terms of Sec. 16 of the Act, 1956, I find it convenient to direct the respondent authorities to pass necessary order in respect of the application filed by Shri Chaman Dass dated 03.09.2014 within three weeks from the date of communication of this order in the light of the observations made in the foregoing paragraphs by this Court and after giving opportunity of hearing to the petitioner. The writ petition, being WP No. 051 of 2015, is, thus, disposed of in terms of the above said order. No order as to costs.