JUDGMENT :

(J.J. Munir, J.) :

1. The issue is: Whether with the evolution of society and the right to life receiving a progressively expanded interpretation, should not the right to adopt a child for citizens of India, who are Muslims, be also regarded as part of the fundamental right enshrined under Article 21 of the Constitution?

2. Since there is hardly a dispute on facts involved in this case, Mr. P.C. Srivastava, learned Additional Advocate General assisted by Mr. Yashwant Singh, learned Standing Counsel appearing on behalf of respondent Nos.1 and 2, waived their right to file a return. Likewise, Mr. Shekhar Kumar, learned Counsel appearing on behalf of respondent No.3, also waived his right to file a counter affidavit.

3. The petition was, accordingly, admitted to hearing and heard without a return.

4. Heard Mr. Sharad Saran Srivastava, learned Counsel for the petitioner, Mr. P.C. Srivastava, learned Additional Advocate General assisted by Mr. Yashwant Singh, learned Standing appearing on behalf of respondent Nos. 1 and 2, and Mr. Shekhar Kumar, learned Counsel appearing on behalf of respondent No.3.

5. The short facts giving rise to this petition are that the petitioner, Mumtaz Alam claims to be the adopted son of the late Gulenoor Khatoon @ Noor Bano, wife of Mohd. Haneef. Gulenoor Khatoon was an employee of the Nagar Palika Parishad, Khair, District Aligarh. She died on 08.01.2022. Gulenoor Khatoon's husband, the late Mohd. Haneef had predeceased her and they were an issueless couple. Gulenoor Khatoon, therefore, thought that she should adopt a child. The reason is expressed in a document, that is described as a deed of adoption or Godnama. The motive assigned is that being issuless, Gulenoor thought that it is necessary to have a child. She was scouting for an appropriate choice and requested her brother to give his son in adoption. The deed of adoption or Godnama, as the document is described, was executed between Gulenoor Khatoon as the first party and Allauddin son of Mohd. Qasim Ali, the second party.

6. The document describes that the second party, upon considering the request, decided to give in adoption his son, Mumtaz Alam to the first party as her son. The deed recites that Mumtaz Alam would have all privileges to perform her last rites, and on and from the date of adoption, Mumtaz Alam, then aged 3 years, would be her son. Mumtaz Alam's education and upbringing would be taken care of by Gulenoor Khatoon. Mumtaz Alam would have the same rights vis-a-vis Gulenoor Khatoon as a son towards his mother. He would have the obligation to perform her rights of the third day (Teeja) after her demise and the fortieth day (Chaalisa). The adoption deed also says that any other relative of the bloodline, close or remote, who may present any claim, contrary to the deed of adoption, would be without right or authority and considered void.

7. The petitioner, after demise of Gulenoor Khatoon, claimed family pension and other post retiral benefits due to the deceased employee, on account of death-cum-retirement benefits. The petitioner's case for grant of family pension and gratuity was approved vide memo dated 13.07.2022 issued by the Deputy Director, Local Fund Examination Department, Aligarh and addressed to the Executive Officer, Nagar Palika Parishad, Khair, District Aligarh. The Collector, Aligarh vide a memo dated 18.08.2022 also recommended to the Additional Commissioner, Aligarh Division, Aligarh payment of death-cum-retirement benefits, due on account of the deceased employee’s services, to the petitioner, treating him to be her son.

8. The matter came up for approval before the Additional Commissioner, Aligarh Division, Aligarh, acting instead for the Commissioner as the Prescribed Authority under the U.P. Municipalities Act, 1916. The Additional Commissioner, Aligarh Division, Aligarh has rejected the petitioner's claim holding that under the Muslim Law, there is no recognition of adoption of a child. It was held tha