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2022 DIGILAW 2364 (RAJ)

Ronak Joshi v. State Of Rajasthan

2022-09-02

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present writ petition has been filed against the order dated 02.01.2019 (Annex.-4) vide which the application of the petitioner for compassionate appointment has been rejected on the ground that the adoption of a child above 15 years of age is not a valid adoption in terms of Section 4 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'Act of 1956'). 2. The case of the petitioner is that he was adopted by late Smt. Nirmala vide a registered adoption deed dated 02.02.2018. Smt. Nirmala was a Class-IV employee with the respondent Department and she expired on 12.02.2018. After her death, the petitioner applied for compassionate appointment in terms of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996 (hereinafter referred to as 'Rules of 1996'). The petitioner submitted that he being the legally adopted son of the deceased, is entitled for compassionate appointment in terms of Rules of 1996. The said application of the petitioner was rejected on the premise that on the alleged date of adoption, he was above 15 years of age and in terms of Section 4 of the Act of 1956, the person above 15 years of age cannot be adopted unless and until, the same is permitted by the custom or usage applicable to the parties. 3. Learned counsel for the petitioner relied upon the judgment of this Court passed in the case of Motilal Jingar v. State of Rajasthan & Ors.; S.B. Civil Writ Petition No. 2040/2018, decided on 10.07.2018. He submitted that in Motilal Jingar's case (supra) also the relevant Clause of the adoption deed was almost akin to the Clause in the present adoption deed. While deciding Motilal Jingar's case (supra), this Court came to the conclusion that the said Clause of the adoption deed was sufficient to prove that the customary adoption was in existence in the respective custom of the concerned parties. While deciding Motilal Jingar's case (supra), this Court came to the conclusion that the said Clause of the adoption deed was sufficient to prove that the customary adoption was in existence in the respective custom of the concerned parties. The Clause of the adoption deed in Motilal Jingar's case (supra), read as under:- 1- ;g fd izFke i{kdkj y{eh dqekjh us vius oa'k dks vkxs pykus ds fy, viuk uke vkckn j[kus ds fy, r`rh; i{k tks fd f}rh; i{kdkj dk izkd`frd iq= gS tks vius tkfr jhfr fjokt vuqlkj o vius dqVqEc i{k dks bdVBk dj xksn fy;k gS rFkk xksn dh jLe esa izFke i{kdkj us r`rh; i{k dks vius xksn esa fcBkdj dqVqEc o ifjokj lekt okyksa esa xqM+ o feBkbZ vkfn ckaVdj leLr tkr fcjknjh ds le{k r`rh; i{k eksrhyky dks xksn fy;k gS] rFkk f}rh; i{kdkj us vius iq= eksrhyky dks jkth [kq'kh ls izFke i{kdkj dks xksn fn;k gSA 4. While dealing with the said Clause, the Court held as under:- "16. After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that Section 10(iv) of the Act of 1956 would not bar the adoption, as has been made in the present case, completely, as the said provision itself contained a proviso in relation thereto, which is reflected from the aforequoted portion of the said provision, and thus, the customary adoption is also permissible under the law, even after the person taken in adoption has completed the age of fifteen years, if the respective custom so permits. 17. This Court further finds that Section 10(iv) of the Act of 1956 is not a bar or an absolute law of adoption, and once the adoption deed has been registered on 25.05.2015, which was well before the death of Smt. Laxmi Jingar, the mother of the petitioner, who expired on 31.01.2016, then it was not open for the respondents to have denied compassionate appointment to the petitioner." 5. In the present matter, the relevant Clause of the adoption deed reads as under:- ;g fd] fnukad 12-12-2017 dks izFkei{kdkj dks f}rh;i{kdkjku~ us vius mDr iq= jksud dks HkkSfrd :i ls xksn esa j[kdj laHkyk fn;k rFkk izFkei{kdkj o f}rh;i{kdkjku~ ds fe=] ca/kq] fj'rsnkjku o lekt ds izfrf"Br O;fDr;k sa dh ekStqnxh o mifLFkfr esa f}rh;i{kdkjku~ us vius mDr iq= jksud dks izFkei{kdkj dh xksn esa cSBk;k o xksn dh reke jLesa lkekftd o tkfr jhfr fjokt ds vuqlkj lEiUu dh x;hA 6. A bare perusal of the Clause shows that the same is akin to the Clause in Motilal Jingar's case (supra) wherein the Court held that the same was sufficient to prove the custom and the usage of the adoption of a person above 15 years of age. 7. Learned counsel for the respondents did not refute the submission of learned counsel for the petitioner that the controversy in question would be governed by Motilal Jingar's case (supra). 8. In view of the above observations and in view of the ratio as laid down in Motilal Jingar's case (supra), the present writ petition is allowed. The respondent Authorities are directed to provide compassionate appointment to the petitioner on any suitable post as per his educational qualifications, while treating him to be a legally adopted son of the deceased Smt. Nirmala, within a period of two months from today, strictly in accordance with law. 9. All the pending applications stand disposed of.