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High Court Of Delhi
KHAZAN SINGH - Appellant
Versus
UNION OF INDIA - Respondent
Civil 1211 of 1976
Decided On : 08/30/1979
ADOPTION - CASTE - VALIDITY - EFFECT - ADOPTION UNDER HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - ADOPTION OF A PERSON ABOVE 15 YEARS OF AGE - CUSTOM OR USAGE - BURDEN OF PROOF - CANCELLATION OF CASTE CERTIFICATE - VALIDITY.
Fact of the Case:
The petitioner, an ex-Sub-Inspector of Police, claimed to be a member of the Julaha (Kabirpanthi) caste, a scheduled caste, by virtue of his adoption by Kishan Lal, a Julaha. The Deputy Commissioner (D.C.) issued a certificate to the petitioner certifying his caste as Julaha (Kabirpanthi). Subsequently, the D.C. cancelled the certificate on the ground that the adoption was invalid under the Hindu Adoptions and Maintenance Act, 1956 (the Act). The petitioner challenged the cancellation of the certificate by filing a writ petition.
Finding of the Court:
The court held that the adoption of the petitioner was valid under the Act and that the D.C. erred in cancelling the caste certificate. The court observed that Section 12 of the Act provides that an adopted child shall be deemed to be the child of the adoptive father or mother for all purposes with effect from the date of adoption and that all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. The court held that this provision creates a statutory fiction and that the adoptee is to be treated from the date of his adoption as if he were born in the adoptive family for all practical purposes. The court further held that the rule that a person can only become a member of a caste if he is accepted by the community does not apply to an adoptee, as an adoptee becomes a member of the caste by reason of his status as an adopted son and not as an outsider seeking admittance.
Issues: 1. Whether the adoption of the petitioner was valid under the Hindu Adoptions and Maintenance Act, 1956? 2. Whether the Deputy Commissioner (D.C.) erred in cancelling the caste certificate issued to the petitioner?
Ratio Decidendi: 1. The court held that the adoption of the petitioner was valid under the Act. The court observed that Section 12 of the Act provides that an adopted child shall be deemed to be the child of the adoptive father or mother for all purposes with effect from the date of adoption and that all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. The court held that this provision creates a statutory fiction and that the adoptee is to be treated from the date of his adoption as if he were born in the adoptive family for all practical purposes. 2. The court held that the D.C. erred in cancelling the caste certificate issued to the petitioner. The court observed that the D.C. had cancelled the certificate on the ground that the adoption was invalid under the Act, but that this was an error of law. The court held that the adoption was valid and that the petitioner was therefore entitled to the caste certificate.
Final Decision: The court allowed the writ petition and quashed the order of the D.C. cancelling the caste certificate issued to the petitioner.
( 1 ) IT is writ petition, according to the petitioner, is an offshoot of Civil Writ No. 1375 of 1975, earlier filed by him.
( 2 ) KHAZAN Singh, the petitioner, is an ex-Sub-Inspector of Police. He is a Jat, by caste, his father Hazari Lal being a milk vendor belonging to that caste. The petitioner claims to have been adopted by Kishan Lal who is a Julaha (Kabirpanthi) by caste. The petitioner s allegation is that his natural father and adoptive father had been doing dairy business in partnership since 1947, that the petitioner was one of four sons of his father, that the adoptive father was very old and adoptive mother had developed T. B. and they had no issues of their own and that therefore the petitioner s natural parents and adoptive parents agreed to give and take the petitioner in adoption into the family of Sri Kishan Lal. It is alleged that a deed of adoption was executed on 5-1-1969 on a stamp paper of Rs. 25 (a photostat copy of which is Annexure a ) and that certain customary ceremonies were also performed on the same day which are evidenced by a photograph taken on the occasion (Annexure b ). Acccording to the petitioner therefore, he is entitled to be treated as a member Julaha (Kabirpanthi) caste which is a scheduled caste (S. C. , for short) within the meaning of Article 341 of the Constitution.
( 3 ) SOMETIMES in December, 1970 the petitioner applied to the Deputy Commissioner, Delhi in a prescribed form for the grant of a scheduled caste certificate, apparently as he contemplated entering Government service shortly. From the original application made by the petitioner to the Deputy Commissioner (D. C. for short) it is seen that the petitioner bad stated therein that he was the adopted son of Kishan Lal and that the purposes for which the certificate was required was: "service". It is common ground that this application was attested and a certificate to the effect that the petitioner belonged to the Julaha caste was also annexed thereto from a Member of the Metropolitan Council, Delhi as prescribed in the form itself. On 26-12-1970, a certificate was issued by the office of the Deputy Commissioner, Delhi certifying that the petitioner, adopted son of Sri Kishan Lal. belonged to the Kabirpanthi Julaha caste which is recognised as a scheduled caste and that he and his family ordinarily resided in No. 163, Moti Bagh, Sarai Rohilla, Delhi. The certificate bore the seal of the Office of the Deputy Commissioner and was signed by Sri H. D. Birdi. for the Deputy Commissioner.
( 4 ) IN January, 1971, the petitioner made an application for recruitment to the post of Sub-Inspector in the Delhi Police for which applications had been invited by the Inspector General of Police. In the application form the petitioner claimed to be a member of a scheduled caste and attached an attested copy of the D. C. s certificate to this effect. A little later, in March, 1971, he was called upon to produce the certificate of his being a scheduled caste from a prescribed authority (and certain other documents) at the time of interview to be held on 18-3-1971. From the endorsement on the back of the application it would appear that after scrutinising the papers produced, the authority concerned was satisfied that the petitioner was the member of a scheduled caste. In due course the petitioner was appointed as a temporary Subinspector (Executive) in the Delhi Police, completed his period of training as prescribed in the Police Rules and was discharging his duties as Sub-Inspector, according to him, very satisfactorily. However, by an order dated 19-3-1975, the Assistant Inspector General of Police terminated his services ostensibly under the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 (hereinafter briefly referred to as the t. S. Rules ). The validity of this order of termination is the subject-matter of C. W. 1375 of 1975.
( 5 ) ON the 6th January, 1976 the Officer in Ch
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