Wife’s Silence Or Lack Of Protest On Her Part Does Not Give Rise To An Inference That She Consented To Adoption: Allahabad High Court
The Allahabad High Court, while recently dismissing the plea of the adopted son for compassionate appointment based on alleged adoption by the deceased employee, has observed that husband while adopting is required to take consent wife’s consent even if the wife is living separately from her husband.
“The legal principle deductible is that the party propounding an adoption by a Hindu male, who has a living wife, has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing documents evidencing her consent in writing or by leading evidence to show that the wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. In other words, the court cannot presume the consent of the wife simply because she was present at the time of adoption.”, Division Bench of Justice Manoj Misra & Justice Rohit Ranjan Agarwal noted.
The appellant claimed to be the deceased's adopted son applied for a compassionate appointment in the present matter. Since his claim was not being addressed, he filed a writ on 17.11.2016 to obtain a direction for considering his claim. Pursuant to the direction, the Divisional Director, Social Forestry Division, Mau ("Director"), rejected the appellant's claim that the adoption deed relied upon the appellant's fraudulent it stated that the deceased was unmarried even though he had a living wife, Phoolmati. The latter claimed herself to be the deceased's sole heir. Assailing the order dated 17.12.2016, the appellant filed a Writ claiming that as the adoption was by a deed of adoption, there was no justification to deny the benefit of compassionate appointment to the appellant. To meet the objection that a married Hindu male was not lawfully eligible to take in adoption without wife's consent, the appellant took the stand the deceased's wife left him and that since video order dated 01.09.1997, a decree of divorce was passed based on compromise, wife's consent was not required. The Trial Court dismissed the appellant's petition on the ground that 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 u/s 7 of the Hindu Adoption & Maintenance Act,1956 ("Act"). While further dismissing the petition, the Trial Court opined that the alleged adoption was invalid and fraudulent because despite the alleged adoption appellant's name of natural parents continued in education certificates obtained to post the date of adoption. Therefore, the appellant filed an appeal before this Court questioning the order passed by Ld Single Judge.
Firstly, the Bench while outrightly rejecting the appellant’s submission of the requirement of no consent on account of divorce between the deceased and his wife & upholding Trial Court’s observation that even consent of an estranged wife was required for taking in adoption if the marriage has not been dissolved concerning the same observed that one of the conditions for an adoption to be valid is that the person taking in adoption must have the capacity to adopt. “As per section 7, a male Hindu, who is of sound mind and is not a minor, could take a son or daughter in adoption provided, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.”, the Bench further observed.
Further, the Bench while placing reliance on the Apex Court judgement in Ghisa Lal v. Dhapubai, (2011) 2 SCC 298 in which it was observed that,
“26. The term “consent” used in the proviso to Section 7 and the Explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject-matter of challenge before the court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing documents evidencing her consent in writing or by leading evidence to show that the wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of the wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the court cannot presume the consent of the wife simply because she was present at the time of adoption. The wife's silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption.”
observed that the Appellant did not present any evidence to demonstrate the wife’s consent before the deceased took the appellant in adoption.
The Court with respect to the presumption arising u/s 16 of the Act relied on Jai Singh v. Shakuntala (2002) 3 SCC 634 & Laxmibai v. Bhagwantbuva (2013) 4 SCC 97 to observe that the presumption that once a registered deed of adoption is produced the adoption has been made in compliance with the provisions of the Act is rebuttable.
“Whether that presumption has been rebutted depends on the facts of each case borne out from the evidence on record. 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.”, the Court further noted.
Thus the Bench while negativing the claim of the appellant and upholding the justification of the Ld Single Judge observed that, “The 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”
Case Title: Bhanu Pratap Singh v. State of UP
Law Point/ Statute Involved: Section 6,7,8 & 16 of the Hindu Adoption & Maintenance Act,1956