AMBALAL SHANKARBHAI PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner seeks to challenge the order dated 30th August, 1989 at Annexure 'B' to the petition, passed by the respondent No. 2-Regional Passport Officer, Ahmedabad, holding that adoption by Hindus not domiciled in India is invalid under the Hindu Adoptions and Maintenance Act, 1956 and that an order should have been obtained from the Court under the Guardians and Wards Act, 1890, and has prayed for a writ of mandamus on the respondents to issue passport in the name of minor Gaurangkumar Suryakant Patel, who is said to have been adopted by Suryakant Ambalal Patel.

(2.) As per the Deed of Adoption dated 12/07/1988, at Annexure 'A', it was declared that minor Gaurangkumar was given in adoption by performing 'Dutt Hom' ceremony on 5-7-1988 by his widowed mother, Sharmishtaben to Patel Suryakant Ambalal, resident of Main Street, Los Angeles, United States of America and his wife Sushilaben who are described as the adoptive parents of the child. As the adoptive parents wanted to take the child with them to the United States, an application was made in the office of the respondent No. 2, Regional Passport Officer for a passport in the name of Gaurangkumar Suryakant Patel. The adoptive father, Suryakant Ambalal Patel, who is the brother-in-law of the petitioner, was a national and citizen of Fizi, but later on he resided in the United States as a Green Card holder. At the time of the hearing of the petition, it was stated on behalf of the petitioner that Suryakant Ambalal Patel was now a national and citizen of the U.S.A. Thus, admittedly, Suryakant Ambalal Patel was a foreigner. It appears that the communication dated 14/03/1989 was received by the petitioner from the office of the respondent No. 2, inter alia, stating that as the adoptive parents of the said minor child were foreign nationals and not domiciled in India the adoption was not valid and therefore in absence of Court's order indicating the factum of a valid adoption the passport as prayed for could not be granted in the name of the minor child as son of the adoptive father, Suryakant Ambalal Patel. It appears that, thereafter, a suit was instituted being Regular Civil Suit No. 32 of 1989 in the Court of Civil Judge (J.D.) at Mehmedabad. A declaration was granted on 1 8/07/1989 that Gaurangkumar was duly given in adoption by his widowed mother, Sharmishtaben to the adoptive parents. Suryakant Ambalal Patel and his wife Sushilaben and that the child Gaurangkumar Arvindbhai Patel would after the adoption be known as Gaurangkumar Suryakant Patel. The Court declared that the Deed of Adoption executed on 12/07/1988 was a valid deed. A copy of the judgment was placed on record by consent of both the sides. The Regional Passport Officer, Ahmedabad, was, however, not satisfied with the said judgment and decree and wrote the letter dated 30/08/1989 at Annexure 'B' to the petitioner stating that since the adoptive parents were foreign nationals there was no valid adoption of the minor child and necessary orders should be obtained from the Court under the provisions of Guardians and Wards Act, 1890.

(3.) It was contended by the learned Counsel, Mr. D.C. Dave, appearing for the petitioner that the Regional Passport Officer was not justified in refusing the grant of passport to minor Gaurangkumar on the ground that the adoptive parents were foreign nationals. He submitted that, a Hindu foreigner, if he comes to India, can validly adopt a child under the provisions of Hindu Adoptions and Maintenance Act, 1956. He submitted that the applicability of the Hindu Adoptions and Maintenance Act, 1956, was not restricted to persons domiciled in India and as provided under Sec. 2(1), the said Act would apply to any person who was a Hindu by religion as indicated in that provision. He submitted that, admittedly, the adoptive parents were Hindus and therefore irrespective of the fact whether they were foreign nationals or domiciled elsewhere they could validly adopt minor Gaurangkumar who was also Hindu. Mr. Dave strongly relied on the decision of the Calcutta High Court in Premsingh v. Dulari Bai (reported in AIR 1973 Calcutta 425) in support of his submissions. The contention which was raised before the Calcutta High Court was that any person who was a Hindu by religion or a Buddhist or a Jain or a Sikh by religion must necessarily be domiciled in India for the purpose of application of the Hindu Marriage Act, 1955. The Division Bench on the principle of construction that Court will not supply or add or alter or it any word in a statute unless of course it would become a matter of impelling necessity to take such harmonious construction as to render the Act effective in its operation, construing the provisions of Sec. 1(1) and Sec. 2(1) (a) (b) (c) of the Hindu Marriage Act, found that it was quite possible to give effect to the material provisions without reading the word "domiciled" in any of the two clauses of Sec. 2. The High Court held that, from a closer examination of the material provisions it followed that a Hindu as defined by Sec. 2 of the Hindu Marriage Act, would be governed by the provisions of that Act irrespective of the question whether he had at the same time acquired a domicile in India. It was held that citizenship was not a necessary or imperative qualification for application of that Act when the Legislature itself had omitted to make such a qualification a condition precedent to Hindus residing in India. It would not be permissible to read this authority to support a contention that any foreigner having no moorings in India simply by virtue of being a Hindu can come to India and adopt a child under the provisions of the Hindu Adoptions and Maintenance Act, 1956. The case before the Calcutta High Court was under the Hindu Marriage Act, 1955. The Court proceeded on the footing that question of domicile of the husband was not relevant in the case and that he resided in India for quite a long time and described himself as a Hindu and that on well established principle of conflict of laws the question whether a particular marriage was properly solemnized must be decided on the basis of the law of land in which such marriage took place. If the authority cited by Mr. Dave is to be construed laying down a. proposition that any Hindu from whatever part of the world can claim applicability of the Hindu Adoptions and Maintenance Act, 1956 by virtue of the Act applying to any person who is a Hindu as provided in Sec. 2(1) it would lead to startling results and even a Chinese national, who is a Buddhist and therefore a Hindu as defined, may simply come down TO India and adopt a child under the Hindu Adoptions and Maintenance Act, 1956. The said Act and other codified lawa which incorporate the personal laws of Hindus are not enacted for foreign nationals and primarily apply to the persons to whom the pre-codified law applied. These are the Hindus who lived in various areas in India and were governed by the customs which developed locally and ultimately constituted the Mitakshara, Dayabhaga and other Schools of Law. The Rules of personal law which customarily developed and ultimately were codified in the matters of marriage, succession, adoption, maintenance and guardianship among Hindus in India are intended to apply to the persons among whom these Rules developed and not to aliens simply because they follow the same religion elsewhere in the World. The laws enacted by the Parliament are primarily intended for the Indians and therefore the Hindus as denned in Sec. 2 of the Hindu Adoptions and Maintenance Act, 1956 and other similar provisions under the codified personal laws applicable to Hindu would mean the Indian Hindus and would not include the foreigner Hindus who are not domiciled in India and had no moorings in India. A foreign national, who may be a Hindu but was never domiciled in India, was not intended to be conferred any right of adopting a child under the Hindu Adoption and Maintenance Act, 1956. Under Sec. 6(1) of the said Act, no adoption shall be valid unless the person adopting has the capacity and also the right to take in an adoption. A foreign national not connected with Indian Hindu Law can obviously have no right to take in adoption under Indian Hindu Law. Therefore, the adoption by such a person under the said Act would not be valid. As provided in Sec. 5(1), any adoption made in contravention of the provisions contained in Chapter 2 of the Act. shall be void. Therefore, an adoption made by a person having no right to make an adoption will be void since the foreign national having no moormgs in India though a Hindu is not intended to be governed by the provisions of the Hindu Adoptions and Maintenance Act, 1956. The said Act extends to the whole of India except the State of Jammu and Kashmir as provided in Sec. 1(2) meaning thereby it intended to apply to the persons in India by codifying the law relating to adoptions and maintenance among Hindus. Thus, the principles of Hindu Law which were hitherto applicable to Hindus governed by various Schools such as Mitakshara and Dayabhaga were codified. The position would not change merely because the words to the effect that the Act applied also to Hindus domicile in territories to which the Act extended but were outside such territories are not incorporated in Sec. 1(2) of the Hindu Adoptions and Maintenance Act unlike Sec. 1(2) of the Hindu Marriage Act. The said provision incorporated in Sec. 1(2) of the Hindu Marriage Act would only mean that Hindus domiciled in India and governed by the Hindu Marriage Act continue to be governed by the same law when outside the Indian territories. The absence of such extra-territorial operation to the Hindu Adoptions and Maintenance Act, 1956 cannot be so construed as to mean that the element of domicile is to be totally ignored in the Hindu Adoptions and Maintenance Act, 1956 and that a foreign national not domiciled in India and having no moorings in India can claim applicability of the said Act to him. The provisions of the Hindu Adoptions and Maintenance Act, 1956, would obviously apply to all Hindus domiciled in India even though they may be residing anywhere else in the World if they have not acquired any other domicile and can claim applicability of the Act within the territory of India to which it extends.