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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Pradeep Puri Goswami - Appellants
Vs.
Nidhi Goswami - Respondent
Criminal Revision No. 556 of 2012
Decided On: 19.09.2014
Code of Criminal Procedure, 1973 - Section 125 - Hindu Adoptions and Maintenance Act, 1956 - Sections 6, 7 and 11 - No evidence on record – Trial Court - Per contra, the applicant herein Pradeep Puri Goswami has examined himself as NAW-3, he has stated that he has never adopted the non-applicant herein as his adopted daughter and her name has incorrectly been mentioned in the records. Smt. Rama Goswami, wife of Suresh Kumar Goswami has been examined as NAW-2, she has also stated that the applicant herein had no issue and she has denied the fact of non-applicant being taken on adoption. Baldaupuri (NAW-3), fathers brother of the applicant in his statement denied the fact of non-applicant being taken on adoption - Thus, on analysis and close appreciation of record, it would appear that the non-applicant herein has adduced evidence to this effect that non-applicant was taken on adoption as per Hindu Rites, whereas, the present applicant has brought on record the evidence to establish that no such act of adoption was performed adopting non-applicant herein on record. There is no evidence on record to show the consent of the applicants wife as required under Section 7 of the Act of 1956 was taken and there is also no evidence on record to show the other conditions as enumerated for the valid adoption was fulfilled and admittedly, there is no deed of adoption available on record – Held, In Kishori Lal v. Mst. Chaltibai, AIR 1959 SC 504, their Lordships of Supreme Court has clearly held that an adoption, results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicious of fraud and so consistent and probable as to leave no occasion for doubting its truth - Thus, following the principle of law laid down in above-stated decision, it appears that the evidence brought on record on behalf of non-applicant to prove the factum of adoption is wholly insufficient to hold that the applicant-Pradeep Puri Goswami has adopted non-applicant with the consent of his wife and the non-applicant has failed to prove her valid adoption by applicant herein by clear-cut and appropriate legal evidence, as a corollary, it is held that non-applicant is not entitled for maintenance from the applicant herein under Section125 - However, this, finding is subject to and without prejudice to the judgment of Civil Suit filed by non-applicant herein. As a fall out and consequence of the aforesaid discussion, the criminal revision is allowed and the impugned order is hereby set-aside – Order accordingly
Sanjay K. Agrawal, J.
1. Ku. Nidhi Goswami is daughter of Dilip Puri Goswami and the applicant- Pradeep Puri Goswami is the brother of Dilip Puri Goswami. She filed an application under Section 125(1) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for brevity) pleading inter alia that she was adopted by the applicant herein Pradeep Puri Goswami, as he had no issue of his own and he asked her father Dilip Puri Goswami to give his daughter on adoption and she was adopted as per Hindu Rites and Rituals, thereafter, she became the adopted daughter of the present applicant- Pradeep Puri Goswami. There is no formal deed of adoption. It was further pleaded that applicant- Pradeep Puri Goswami after the death of his wife Premlata Goswami, performed second marriage and blessed with a daughter Ku. Geetanjali and, since then, the applicant herein started neglecting her and failed to discharge his duty towards her as a father and failed to provide food, clothing and educational expenses, as such, she is unable to maintain herself and she is entitled for maintenance from her adopted father. The present applicant filed his counter-affidavit and specially denied the factum of adoption by stating inter alia that Ku. Nidhi Goswami is residing with her natural father Dilip Puri Goswami and further pleaded that in order to grab his property, such an application has been filed. It was also pleaded that a Civil Suit No. 50-A/2007 has been filed by non-applicant herein Ku. Nidhi Goswami, which is pending consideration and therefore, she is not entitled for maintenance.
2. The Family Court, by its impugned order dated 28/07/2012, allowed the application holding that the non-applicant is adopted daughter of the present applicant, as such, she is entitled for maintenance.
3. Questioning the legality and validity of the impugned order dated 28/07/2012, passed by Family Court, granting maintenance to the non-applicant, applicant-Pradeep Puri Goswami filed the present criminal revision.
4. Appearing for the applicant Mr. Adil Minhaj, learned counsel would submit that the non-applicant has miserably failed to prove the fact of adoption in accordance with Sections 6, 7 and 11 of the Hindu Adoptions and Maintenance Act, 1956 ('Act of 1956' for brevity), therefore, the impugned order deserves to be set-aside.
5. Appearing for the non-applicant Mr. R.S. Patel, learned counsel would support the impugned order and submit that the Family Court has rightly granted maintenance, as there is overwhelming documentary evidence on record to prove the fact of adoption.
6. I have heard learned counsel appearing for the parties and considered their rival submission made therein and also perused the impugned order with utmost circumspection.
7. The short question falls for consideration in the revision is whether the fact of adoption has duly been established by the non-applicant herein?
8. In order to consider the submission made at the bar, it would be proper to notice Sections 6, 7, 8, 11, 12 and 16 of the Act of 1956 and for the sake of convenience, it is hereby reproduced 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."
"7. Capacity of male Hindu to take in adoption.--Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
"Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.
Explanation.--If a person has more than one wife living at the time of adoption, the consent of all
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