Decided on March 08,2011



- (1.)The questions that arise for consideration in this appeal are whether a male or female of more than 15 years age can be adopted and whether there is a custom amongst the members of Valmiki caste or community permitting adoption of a person above 15 years of age?
(2.)This Appeal has been filed challenging the order of the learned single Judge dated 24.12.2008. The facts of the case in brief are that mother of the appellant Smt.Hamuben Amrutbhai Chauhan was working as Sweeper and was a permanent employee with respondent No.2 department with effect from 1.1.1978. She died in harness while in service on 23.12.2007. Her son Harshadkumar had died earlier on 22.11.2004. Smt. Hamuben had two daughters who were married. According to the case of the appellant, he was adopted by Smt. Hamuben and her husband Chandubhai Chauhan by a registered adoption deed executed between the family on 10.7.2006. After one year of the adoption, Smt. Hamuben died. The appellant on 1.5.2008 applied for appointment on compassionate ground. The authorities have rejected the claim for appointment on compassionate grounds in view of section 10(iv) of the Hindu Adoption and Maintenance Act, 1956 which lays down that a Hindu male above the age of 15 years cannot be adopted. Admittedly, the appellant was aged 23 years at the time of adoption. The authorities on 22.9.2008 as well as the learned single Judge on 24.12.2008 has dismissed the claim for compassionate appointment of the appellant and held that the appellant is not eligible to claim appointment on compassionate ground as he was not the legally adopted son of late Smt.Hamuben and further husband of Hamuben, Chandubhai Chauhan was still alive.
(3.)We have heard Shri C.B. Dastoor, learned counsel for the appellant. Hindu Adoptions & Maintenance Act, 1956, (for short, "the Act") in section 4 (a) provides that any custom or usage as part of that law prior to the commencement of the Act has ceased to have effect with regard to any matter for which provision has been made in Chapter II, except clause (iii) an (iv) of section 10 of the Act. Section 5 provides that no adoption shall be made under the Act by a Hindu except in accordance with the provisions of this Act and any adoption made in contravention of the provisions of the Act shall be void. Section 10 is extracted below:
"10. Persons who may be adopted - No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely: -

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."

From a reading of the aforesaid provisions, it is clear that for adoption, a person should be a Hindu and had not earlier been adopted. A married male or female above fifteen years of age cannot be adopted unless there was a custom or usage applicable to the caste or community which permits the person who have completed the age of fifteen years for being taken in adoption.


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