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IN THE HIGH COURT OF ALLAHABAD
Manoj Misra, Rohit Ranjan Agarwal, JJ.
Bhanu Pratap Singh - Appellant
Vs.
State Of U.P. And 3 Others - Respondent
SPECIAL APPEAL No. -22 of 2021
Decided On : 22-02-2021
Hindu Adoption and Maintenance Act, 1956 – Sections 6, 7, 8 and 16 – Dying in Harness Rules, 1974 – Compassionate Appointment – Condonation Application – Intra-court appeal has been filed by the writ-petitioner against the judgment and order passed by the learned Single Judge in Writ A by which appellant’s writ petition has been dismissed .
Finding of the court: – Held, Adoption deed on which reliance has been placed by the appellant declares Rajendra Singh as unmarried whereas, it is established on the record, he was married and had a wife living on the date of adoption – Therefore once it was proved that Rajendra Singh had a living wife, the presumption, if any, arising from that deed with regard to the adoption being in accordance with the provisions of the 1956 Act stood demolished because how could it be presumed that the wife had given her consent for her husband to take a son in adoption when even the existence of that wife is not acknowledged. – In fact in the adoption deed Rajendra Singh has been described as unmarried. – Thus, when clinching evidence had come on board that the person who allegedly took the appellant in adoption had a living wife, whose existence was denied in the deed, the presumption, whatever available, stood rebutted. – Court may notice another statement of the learned counsel for the appellant though not vehemently pressed as an argument. – It was stated that there were property documents on record to show that the estate of the deceased employee (Rajendra Singh) had come to the appellant and, therefore, for all practical purposes he was the son of the deceased employee. – Court find not much value in those facts because here, to qualify as a dependent of an employee who died in harness, the appellant had set up a plea that he was the adopted son of the deceased employee. – Once that plea stood discarded upon finding that a valid adoption could not be established, as to how the property of the deceased employee devolved was not important and binding on the authorities who were to deal with the claim for compassionate appointment on the strength of adoption. – That apart, there were other circumstances also, such as continuance of name of natural parents of the appellant in educational certificates, obtained after the alleged date of adoption, to suggest that adoption was sham may be to divest the estranged wife of her claim in the deceased employee’s property. – Court is of the considered view that the learned single judge was justified in negativing the claim of the writ petitioner (the appellant) for compassionate appointment on the basis of his alleged adoption by the deceased employee.
Result: – Appeal Dismissed
JUDGMENT :
Manoj Misra, Rohit Ranjan Agarwal, JJ.
In re: Delay Condonation Application No. NIL of 2021:
1. As the limitation expired during the period of COVID-19 pandemic, the office has not reported the appeal to be beyond the period of limitation but, as a delay condonation application has been filed, to avoid any technicalities, we deem it appropriate to allow the application and condone the delay, if any.
In re: Appeal
2. Heard Sri B.B. Paul for the appellant; the learned Standing Counsel for the respondents 1, 2 and 3; and perused the record.
3. This intra-court appeal has been filed by the writ-petitioner (for short the appellant) against the judgment and order dated 25.11.2020 passed by the learned Single Judge in Writ A No. 10300 of 2107 by which appellant’s writ petition has been dismissed.
4. Facts, in brief, giving rise to this appeal are that on death of one Rajendra Singh on 03.06.2016, in harness, by claiming himself as his adopted son, the appellant applied for compassionate appointment. As the claim of the appellant was not being addressed, the appellant filed Writ A No.53860 of 2016 and obtained a direction on 17.11.2016 for consideration of his claim. Pursuant to that direction, the Divisional Director, Social Forestry Division, Mau (for short Director), by order dated 17.12.2016, rejected the claim of the appellant upon finding as below : (a) Rajendra Singh had a living wife in Phoolmati against whom he had instituted suit no.145 of 1994 which was decided in terms of a compromise on 31.08.1997, as per which their relationship as a married couple were to continue; (b) Phoolmati claimed herself to be the sole heir of Rajendra Singh and had denied adoption of the appellant; (c) under Dying in Harness Rules, 1974, preference is to be accorded to the deceased’s wife; (d) the adoption deed relied by the appellant appeared fraudulent as it recited that Rajendra Singh, the adoptive father, was unmarried even though he had a living wife in Phoolmati; (e) the educational certificates of the appellant, even those that were obtained post the date of alleged adoption, reflected the name of his natural parents, namely, Raj Narain and Kamla; (f) the extract of Parivar register also reflects the name of appellant’s father and mother as Raj Narain and Kamla, respectively and, therefore, the plea of adoption set up by the appellant is nothing but fraudulent made with a view to make unlawful gain. Assailing the order dated 17.12.2016 the appellant filed Writ A No. 10300 of 2017 by claiming that as the adoption was by a deed of adoption, dated 07.02.2001, registered on 14.12.2009, there was no justification to deny the benefit of compassionate appointment to the appellant. In the counter affidavit to the writ petition, inter alia, the validity of the alleged adoption was questioned. In the rejoinder affidavit, to meet the objection that a married Hindu male could not lawfully take in adoption without the consent of his wife, a stand was taken that Phoolmati, wife of Rajendra Singh, had left her husband and that in Suit No.145 of 1994, on the basis of compromise, dated 31.08.1997, a decree of divorce came to be passed on 01.09.1997, hence, her consent was not required.
5. The learned Single Judge dismissed the petition of the appellant upon finding that: (a) there was no decree of divorce obtained by Rajendra Singh (the deceased employee) against his wife Phoolmati who was alive at the time of the alleged adoption; (b) the adoption deed discloses Rajendra Singh’s status as single, which implies that there was no consent of his wife for taking the appellant in adoption as is the mandatory requirement of the proviso to section 7 of the Hindu Adoption and Maintenance Act, 1956 (for short the 1956 Act); (c) mere separate living by the wife, or wife's estrangement from her husband, would not obviate the requirement of her consent to make a valid adoption. The learned single Judge concluded that the alleged adoption is invalid and also fraud
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