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2016 Supreme(Cal) 233
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DEBI PROSAD DEY, J.
Arun Mondal - Appellant
Versus
Director, Directorate of Health Services & Others - Respondents
WP No. 51 of 2015
Decided On : 15-01-2016
Advocate Appeared:
Roshan George, Anjili Nag
In matters of adoption, substantial justice and the interests of the child should be prioritized over technical considerations, and registered adoption deeds are presumed valid under Section 16 of the Hindu Adoptions and Maintenance Act, 1956.
Headnote:
ADOPTION - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 11, 16 - VALIDITY OF ADOPTION DEED - CORRECTION OF BIRTH CERTIFICATE - SUBSTANTIAL JUSTICE - INTEREST OF JUSTICE - Locus standi of authorities to challenge registered deed of adoption - Presumption of validity of registered adoption deed - Substantial compliance of legal requirements - Overlooking mere irregularity or trivial breach of law for doing real and substantial justice.
Fact of the Case:
Petitioner, Chaman Dass, adopted Master Arun Mondal by a registered deed. He sought to correct Master Arun Mondal's birth certificate to include his name as the father. The authorities rejected his application, citing that the adoption deed was invalid under Section 11 of the Hindu Adoptions and Maintenance Act, 1956.
Finding of the Court:
The court held that the authorities had no locus standi to challenge the registered deed of adoption and that the deed was presumed valid under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. It further held that substantial justice and the interests of the child should be prioritized over technical considerations.
Issues: 1. Whether the authorities had the locus standi to challenge the registered deed of adoption? 2. Whether the adoption deed was valid despite being hit by Section 11 of the Hindu Adoptions and Maintenance Act, 1956? 3. Whether substantial justice and the interests of the child should be prioritized over technical considerations in matters of adoption?
Ratio Decidendi: 1. The authorities had no locus standi to challenge the registered deed of adoption as it was presumed valid under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. 2. Substantial justice and the interests of the child should be prioritized over technical considerations in matters of adoption. In this case, correcting the birth certificate to include the adoptive father's name would provide substantial benefits to the child.
Final Decision: The court directed the authorities to pass the necessary order in respect of the application filed by Shri Chaman Dass within three weeks from the date of communication of the order, considering the observations made by the court and after giving an opportunity of hearing to the petitioner.
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. 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 Maint
