Date of Judgement:
8th March 2022
Coram/judge:
Hon'ble Mr. Justice Sunil B. Shukre
Hon'ble Mr. Justice G.A. Sanap
Parties to the Case:
Petitioner -
1. Dr. Sonal Pratapsingh Vahanwala
Respondents-
1. Deputy District Collector (Encroachment) Dharavi Division, Mumbai City.
2. District Caste Certificate Scrutiny Committee (DCCSC), Mumbai City,
3. State of Maharashtra
Legal Provisions
- Section 9 of Hindu Adoptions and Maintenance Act, 1956- deals with particulars of the person capable of giving child in adoption. Sub-section 4 lays down that the guardian of the child may give the child in adoption with the previous permission of the Court to any person in case the parentage of child is not known.
- Section 12 of the Hindu Adoptions and Maintenance Act, 1956- it lays down the effect of valid adoption.
Overview
- The petitioner had filed a petition in civil court of Mumbai seeking permission for adoption of male child from ‘Children of the World India Trust’, Mumbai. At the time of the adoption, he was five years old and the Identity of his biological parents was not known.
- The child was raised in the Orphanage. Application of the petitioner for seeking permission to adopt the child was granted by the order passed by the learned Judge of the City Civil Court, Mumbai. It was also placed on record before respondents No.1 and 2.
- The petitioner applied to the Municipal Corporation for registration of birth of the child on 13th January, 2010. It was registered and his recorded birth date was 8th September, 2004. The petitioner was recorded as his mother.
- The petitioner contended that she was the mother of the adoptive son. Her caste was “Hindu Mahyavanshi” (a scheduled caste). This caste was recorded in all the documents of the child.
- The petitioner applied for a caste certificate for her son but the same was rejected on the ground that documents of the caste of the father of the child were not submitted. An appeal to the appropriate authority against such order was also dismissed vide order dated 30th November, 2017.
- Nayab Tehsildar filed an affidavit on behalf of respondent No.1 and contended that the petitioner had not filed residence proof of father nor the caste certificate of the father of the child These requirements are mandatory. The claim was rejected, since the proof of caste from the paternal side was not produced.
Arguments Advanced by The Petitioner
- Petitioner contended that she was a single mother. On adoption her son should take her caste. The details of the biological parents of the child were not known even to the orphanage and hence those particulars could not be provided to the respondents.
- Learned counsel for the petitioner contended that the impugned orders show non-applicability of minds and were illegal. Since, all the documents issued by the civil court were submitted at the time of application, the reasons recorded for rejection of the application for issuance of caste certificate by the petitioner were not tenable.
- The learned Counsel placed reliance on the case of Rameshbhai Dabhai Naika V. State of Gujarat & Ors. and contended that in light of views of the Apex court in this case, the impugned order couldn’t sustain.
Arguments Advanced by The Respondents
- Learned Additional Government Pleader (AGP), appearing for the state, contended that in terms of the Government Resolution dated 1st November, 2001, one of the mandatory conditions for issuance of caste certificate of schedule caste/schedule tribe would be that the caste record from paternal side was to be produced. Hence, the claim was rightly rejected by the respondents.
Issue
Whether the caste certificate could be issued to the child on the basis of caste of the single parent, even when the required details of paternal family were not available?
Judgment Analysis
- The Honourable High Court observed that Respondents No.1 and 2 had missed the vital aspect that the petitioner was a single mother. In the light of the facts of the present matter, there was no question of procurement or production of the documents of the caste of biological father of the child as the information regarding the same was unavailable.
- An inspection of records shows that the City Civil Court gave such permission for adoption on being satisfied that the petitioner had complied with the requisite conditions for a valid adoption, as per the Hindu Adoptions and Maintenance Act, 1956.
- In light of section 9 of the act, ‘Children of the World India Trust’ was the guardian of the child at the time of adoption. The Court during inquiry was satisfied that the adoption would be for the welfare of the child.
- The Court observed that the authorities ignored the provision of section 12. As per the provisions of section 12 of the Act, by a deeming fiction the adopted child becomes a child of his or her adoptive parent for all purposes with effect from the date of the adoption. It had been laid down that from the date of adoption, all the relations of the child in the family of birth would come to an end and replaced by those created by the adoption in the adoptive family. Such a child would also take the caste of the adoptive parent.
- In the case of Rameshbhai Dabhai Naika V. State of Gujarat & Ors., the Apex court had held that where a child had been raised by a mother who belonged to the Scheduled caste/Scheduled tribe, by virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, like any other member of the community to which his/her mother belonged. Hence, such a child was allowed to take the caste of the mother.
- The Court observed that the facts of the present petition were similar to that of the abovementioned case. In this case, caste of the father was not known at all. If the reason recorded by the respondents would be upheld, the child would be without identity throughout his life and the very purpose of adopting child by the petitioner being a single mother would stand frustrated.
- Hence, Government Resolution would not be applicable here. In view of the stand taken by Apex Court on the matter, the petition was allowed and the child could take caste of her mother. Required directions were issued to the authorities.
Conclusion
The Honourable High Court construed the provisions of Hindu Adoptions and Maintenance Act, 1956 regarding adoption and held that when the information regarding biological parents was not available, the adoptive child can take the caste of the adoptive parent who had raised him/her. While adjudicating upon the government regulation with regard to issuance of caste certificate it was held that the regulation would apply as per the facts and circumstances of each application.
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