The Gujarat High Court recently held that a registered deed of adoption with a registrar is sufficient to prove the adoption of a child and that there is not requirement to have a civil court decree affirming such deed [Khojema Saifudin Dodiya vs Registrar, Birth and Death].
Single-judge Justice Biren Vaishnav refused to agree with a Bombay High Court decision in this regard which had held that only a civil court can decide if the adoption was legal and done after following due procedure.
which had said that deleting the biological father's name from the birth certificate of a child could be drastic.
"In the opinion of this Court, the refusal to do so and not correcting the birth certificate of the ward post the adoption would lead to multiple hurdles in day-to-day affairs connecting the dealings with various public or other authorities and the practical difficulties that they would face would be more drastic if the power under Section 15 of the Registration of Birth and Deaths Act is not exercised in favour of the parties," the judge opined.
The bench was seized of a plea filed by a woman, who sought to change the middle and last names of her son. The woman had a child from her first marriage.
She later divorced her first husband and then married another man. After the second marriage, since her son's custody was with her, she and her second husband adopted the said child.
Subsequently, they sought to replace the biological father's name in the child's birth certificate with the second husband's name
However, their application for the same was rejected by the civic authorities on the ground that they had only submitted the adoption deed but had not produced a court decree regarding the same.
In his order, Justice Vaishnav noted that another single-judge of the Gujarat High Court had held that as per section 16 of the Hindu Adoption and Maintenance Act of 1956, when any adoption deed is registered, there shall be a presumption in favour of the documents relating to the adoption and the presumption shall be that the adoption was in compliance with the provisions of the Act unless it is disproved.
However, the civic authorities before Justice Vaishnav pointed out that the Bombay High Court had held that the presumption under section 16 of the Act must be before a competent court and not a registrar.
However, the Gujarat High Court disagreed.
"The observations of the Division Bench that only the Court can consider the presumption of the document being legal is, with respect, not right. The parties to the Registration Deed have consented to take the child in adoption. No objections have come from the biological father with regard to the mode and the manner of adoption and therefore, as held that the presumption though being rebuttable no roadblock or dispute has been raised for the adoption of the child, relegating the parties then to undertake the rigmarole of approaching the Court when the deed of adoption is filed before the Registrar would not render the Registrar powerless to make the corrections," Justice Vaishnav held.
Therefore, the bench quashed the orders of the civic authorities and ordered the registrar to make the changes as desired by the petitioners.
Advocates SM Kikani, Tulshi Savani and Jigneshkumar Pandav appeared for the Petitioners.
Advocates Deep D Vyas, Kaushal Pandya and Rohan Shah represented the authorities.
[Read Order]