IMPORTANT POINT
The necessity of a wife's consent for adoption under Section 7 of the Hindu Adoptions and Maintenance Act, 1956, must be established through clear evidence, either in writing or through affirmative actions, and cannot be inferred from mere presence at the adoption ceremony.

JUDGMENT :

(Manish Kumar, J.) :

1. Heard Shri Shitla Prasad Tripathi, learned counsel for petitioner, learned counsel for respondent as well as Shri Hemant Kumar Pandey, learned State Counsel.

2. During the pendency of the present writ petition, the petitioner has expired and in his place his legal heirs have been substituted and they will be referred to as petitioner. Similarly, during the pendency of the present writ petition, respondent nos. 3, 4 and 5 have also expired and their legal heirs have been substituted and they will be referred to as respondent.

3. The present writ petition has been preferred for quashing of the impugned revisional order dated 25.05.1985 and the appellate order dated 07.01.1985.

4. Learned counsel for petitioner has submitted that the uncle of the petitioner Naval Kishore was the original tenure holder of the Chak no. 32 situated at village Gumwa, District Sultanpur and he died issueless, hence after his demise, the petitioner being the nephew, would succeed the rights over Chak No. 32 as successors of late Naval Kishore.

5. During the consolidation proceedings, respondent no. 3 Ram Ujagir (now deceased) had filed a case under Section 12 of the Consolidation of Holdings Act, 1953 for claiming his co-tenancy rights on Chak No. 32 being an adopted son of late Naval Kishore, on the basis of the registered adoption deed dated 30.09.1972. The said case preferred by respondent no. 3 was dismissed by judgment and order dated 26.10.1983.Against which the respondent no. 3 had preferred an appeal under Section 11(1) of the Act, 1953 which was decided in his favour by judgment and order dated 07.01.1985. Against which, the petitioner preferred a revision under Section 48(1) of the Act, 1953 which was dismissed by judgment and order dated 25.05.1985 and feeling aggrieved by the appellate order and the revisional order, the present writ petition has been preferred.

6. It is further submitted that the issue which was to be decided by the appellate court as well as the revisional court was whether the adoption was in accordance with proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act, 1956') which provides that the consent of the wife of the person adopting the child shall be necessary and the same was not there at the time of adoption and the registration of the adoption deed. So, the adoption of the respondent no. 3 is invalid and no right could be given to the respondent no. 3 in pursuance of the adoption deed which is invalid. In support of his submission, learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Ghisalal and Ors. vs. Dhapubai (Dead) by LRs. and Ors. [AIR (2011) SC 644].

7. It is further submitted that the respondent no. 3 had not adduced either any documentary evidence or oral evidence to establish that there was a consent of the wife of Late Naval Kishore at the time of adoption of respondent no. 3 and in absence of the same, the adoption of the respondent no. 3 is not valid in the eyes of law.

8. On the other hand, learned Standing Counsel and the counsel for the respondents have submitted that it is not necessary that the consent should be in writing.

9. It is further submitted that the statement of the marginal witness (Indrajeet Tiwari) was recorded before the Consolidation Officer wherein he had stated that the adoption was with the consent of the wife of Late Naval Kishore and she was present at the time of adoption.

10. It is further submitted that even respondent no. 3 had also given his statement that he was adopted with the consent of wife of Late Naval Kishore. It is further submitted that the petitioner has not challenged the adoption deed till date and as per Section 16 of the Act, 1956, it would be presumed that the adoption deed is valid being a registered document.

11. It is further submitted that the wife of Late Naval Kishore pre-deceased her husband i.e. Late Naval Kishore