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2017 DIGILAW 404 (JHR)

Abhishek Rajan v. State of Jharkhand

2017-02-28

SHREE CHANDRASHEKHAR

body2017
ORDER : Whether delay in adoption by a Hindu widow can be a ground for refusing appointment on compassionate grounds to the adopted son, is the precise issue before the Court. 2. Heard. 3. The proceeding of the District Establishment Committee held on 05.02.2007 would disclose that on the ground that adoption of the petitioner by the wife of the deceased-employee is 3 years after the death of the deceased-employee, which fact is itself wrong, claim for appointment of the petitioner has been declined. The employee namely, Raj Mohan Singh died on 11.10.2005 and his wife adopted the petitioner on 18.07.2006. Adoption of the petitioner is within 9 months of the date of death of the deceased-employee. The learned counsel for the petitioner has referred to a decision in Sukhwinder Kaur Vs. State of Punjab and Others in CWP No.24521 of 2015 of High Court of Punjab and Haryana to contend that the adopted son gets transplanted from natural parents and thus, the petitioner for all practical purposes became son of the widow of the deceased-employee. 4. Adoption of a child by a Hindu male or female is regulated by the Hindu Adoption and Maintenance Act, 1956.Section 6 of the Act lays down requisites of a valid adoption which reads 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.” 5. It is not the case pleaded by the respondent-State that adoption of the petitioner by the wife of the deceased-employee is not valid. Section 8 provides that any female Hindu who is of sound mind and is not a minor can adopt a son or a daughter. Proviso to Section 8 makes it clear that a widow Hindu can also adopt a son or a daughter. Section 8 provides that any female Hindu who is of sound mind and is not a minor can adopt a son or a daughter. Proviso to Section 8 makes it clear that a widow Hindu can also adopt a son or a daughter. Proviso to Section 8 of the Hindu Adoption and Maintenance Act, 1956 reads as under:- “Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband 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.” 6. On a bare reading of Proviso to Section 8 of the Act, it is apparent that adoption by a Hindu female, if her husband is alive, is on a condition that her husband consents for the adoption. It thus, has to be necessarily inferred that a widow Hindu is competent to adopt a son or a daughter. The Act does not provide a limitation for adoption by a female Hindu. The impugned proceeding dated 05.02.2007 of the District Establishment Committee while rejecting the claim of the petitioner for appointment on compassionate ground proceeds on a premise as if 3 years after the death of her husband no adoption by a female Hindu widow is permissible in law. Besides the period indicated in the impugned proceeding is incorrect, the reasoning disclosed in the said proceeding is also, thus, erroneous. 7. The petitioner is aged about 28 years; his date of birth is 26.08.1989. He has, thus, not crossed the maximum age for appointment. The application submitted by the wife of the deceased-employee would disclose that the petitioner is the only person in the family. These facts have not been disputed by the respondents in their counter-affidavit filed in the present proceeding. 8. In view of the aforesaid facts, what follows is that the impugned proceeding dated 05.02.2007 warrants interference of this Court and accordingly, it is quashed. The Deputy Commissioner, Palamau-respondent no.3 is directed to consider the claim of the petitioner for compassionate appointment within six weeks. The petitioner is at liberty to produce a copy of this order within a week before the Deputy Commissioner, Palamau. The Deputy Commissioner, Palamau-respondent no.3 is directed to consider the claim of the petitioner for compassionate appointment within six weeks. The petitioner is at liberty to produce a copy of this order within a week before the Deputy Commissioner, Palamau. It is indicated at this stage itself that the claim of the petitioner shall not be declined on the ground of delay, which primarily occurred due to pendency of this writ petition. 9. The writ petition stands allowed, in the aforesaid terms.