An adoption deed is not valid unless it complies with the requirements of Section 11 of the Hindu Adoption and Maintenance Act, 1956, including the requirement that the child be actually given and taken in adoption.

This petition under Article 226 of Constitution of India has

been filed seeking the following reliefs :-

“(i) Issue a writ in the nature of mandamus to

direct

the

respondents

to

give

compassionate

appointment to the petitioner on suitable post being the

adopted son of Late Jawaharlal.

(ii) To grant any other relief, which this Hon’ble

Court may deem fit and proper in the facts and

circumstances of the case including cost of the litigation

in favour of the petitioner.”

2.

It is submitted by counsel for petitioner that petitioner was

adopted by Shri Late Jawaharlal. Shri Jawaharlal was working as

Peon in Government Higher Secondary School Khurkhuri Dadar,

Raiytwar, Block Development Karanjiya, District Dindori. He died

in harness on 16.01.2020 and adoption deed was also executed. As

per the policy for appointment on compassionate ground even an

adopted son is entitled for compassionate appointment. Although the

petitioner has made an application for his appointment on

compassionate ground but no heed has been paid.

3.

Considered the submissions made by counsel for petitioner.

4.

Section 11 of The Hindu Adoption and Maintenance Act, 1956

reads as under :-

“11.Other conditions for a valid adoption.―In

every adoption, the following conditions must be

complied with:―

3 W.P.No.31000/2023

(i) if the adoption is of a son, the adoptive father

or mother by whom the adoption is made must not have

a Hindu son, son’s son or son’s son’s son (whether by

legitimate blood relationship or by adoption) living at

the time of adoption;

(ii) if the adoption is of a daughter, the adoptive

father or mother by whom the adoption is made must

not have a Hindu daughter or son’s daughter (whether

by legitimate blood relationship or by adoption) living

at the time of adoption;

(iii) if the adoption is by a male and the person to

be adopted is a female, the adoptive father is at least

twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person

to be adopted is a male, the adoptive mother is at least

twenty-one years older than the person to be adopted;

(v) the same child may not be adopted

simultaneously by two or more persons;

(vi) the child to be adopted must be actually

given and taken in adoption by the parents or guardian

concerned or under their authority with intent to

transfer the child from the family of its birth [or in the

case of an abandoned child or a child whose parentage

is not known, from the place or family where it has

been brought up] to the family of its adoption:

Provided that the performance of datta homam

shall not be essential to the validity of adoption”

5.

Thus, it is clear that apart from other conditions, the child to be

adopted must be actually given and taken in adoption by the parents

or guardian concerned or under their authority with intent to transfer

the child from the family of its birth or in the case of an abandoned

child or a child whose parentage is not known from the place or

4 W.P.No.31000/2023

family where it has been brought up to the family of its adoption.

Therefore, handing over and taking over the actual custody of the

child is essential.

6.

The petitioner has filed a copy of adoption deed as Annexure

P-2, in which it is stated by Jawaharlal that his wife has deserted her.

He has three daughters. The eldest daughter Laxmi Bai is married;

whereas remaining two daughters are residing with him. He has no

male child and in absence of male child there is nobody to take his

family further and accordingly with the consent of parents as well as

relatives of natural parents of petitioner, the petitioner has been kept

by him as his adopted son since he was 10 years of age. The

petitioner shall be having all the rights in his moveable and

immoveable property and he will also be entitled