Memuna Hatim Kagalwala vs State Of Gujarat & Anr.

Aniruddha P. Mayee, J

The present Special Civil Application is filed praying to direct the respondent No.2 to consider the passport application of the minor daughter of the applicant namely INSIYA HATIM KAGALWALA being application No.AH2060850894425 dated 24.03.2025.

Learned counsel for the petitioner submits that the petitioner and her husband, who are residents of the UAE, had legally adopted a minor girl named Insiya and intended to take her with them abroad. It is submitted that for the purpose of obtaining a passport for the minor child, the petitioner’s husband applied for a birth certificate before the Lunawada Nagarpalika by inadvertently suppressing the fact of adoption and on the basis of the said certificate, succeeded in securing issuance of the child’s passport. Learned counsel submits that subsequently, when the authorities detected the said suppression, the husband and father-in-law of the petitioner approached two agents, namely Shabbir Roadiva and Abhishek Madhu, to resolve the issue and one of the agents wrongfully took possession of the minor’s passport and began extorting money under the threat of a purported Red Corner Notice. It is submitted that owing to these facts, the father-in-law of the petitioner lodged FIR CR-I-58/2017 at Lunawada Police Station, during investigation of which the police seized the original passport of the minor. Learned counsel submits that the petitioner’s application before the learned Additional Chief Judicial Magistrate, Lunawada for release of the passport came to be rejected on 02.02.2021, compelling her to approach this Hon’ble Court in Special Criminal Application No. 7202 of 2021, wherein this Court, vide order dated 14.02.2023, permitted the minor through the petitioner to apply for a fresh passport. It is further submitted that despite such liberty, the Passport Authority closed the fresh application on the ground that the adoption was invalid under the Hindu Adoptions and Maintenance Act (HAMA) since the adoptive parents belonged to different religions, and therefore insisted on production of a proper court adoption order. Learned counsel submits that although a subsequent petition was withdrawn, an Office Memorandum dated 14.11.2024 issued by the Ministry of External Affairs clarified that court decrees are required only in cases of in-country adoption under the Juvenile Justice Act involving relatives or step-parents, and the present case does not fall within that category. Relying on this clarification, the petitioner again applied for the child’s passport on 24.03.2025; however, by communication dated 22.05.2025, the Passport Authority once again insisted upon a court decree of adoption/guardianship, leaving the petitioner with no option but to approach this Court by way of the present petition.

Learned counsel for the respondent No.2 passport authority submits that the respondent authority will process the passport application of the minor Insiya dated 24.03.2025 taking into consideration the Registered Adoption Agreement dated 20.07.2016 and the Office Memorandum dated 14.11.2024 for issuance of passport in accordance with law.

Heard learned advocates for the parties and considered the submissions.

The Hon’ble Division Bench of this Court in Letters Patent Appeal No.901 of 2023, by decision dated 14.07.2023, has held as under:-

“10. In the case of Nayankumar Rajnikant Trivedi v. the District Education Officer reported in AIR 2004 Gujarat 53, this Court on the basis of registered adoption deed, allowed the changes in the name and that right has been allowed to assail before the Court. Yet in another decision in case of Amruta Vijay Vora v. Union of India reported in 2003 (3) GLR 2625, in para 6, the proposition is abstracted as follows:-

“Even otherwise also, as per section 16 of Hindu Adoption & Maintenance Act, 1956 (hereinafter referred to as "the Act") when any adoption deed is registered there shall be a presumption for documents relating to the adoption and the presumption shall be that the adoption has been made in compliance with the provisions of Act unless and until it is disproved. Such presumption can be made applicable not only in court proceedings but such presumption in view of Section 16 can also reasonably be made applicable even at the time when the authority has to consider the matter for issuance of passport because the passport authority while considering the matter for issuance of passport is also acting as a quasi judicial authority.”

In that case, the Regional Passport Officer was directed to consider the application and to issue passport by changing the name. In Nayankumar (supra), while taking note of the presumption of adoption deed available u/s 16 of the Act, this Court had drawn following proposition:-

“In any event, the petitioner is lawfully adopted by a Hindu lady and the Deed of Adoption is registered and therefore the presumption as per the provisions of section 16 of Hindu Adoption and Maintenance Act, 1956 can be drawn in favour of the petitioner also. The said presumption would operate so long as there is no challenge or such presumption is not rebutted by the procedure known to law. It is not the case of any of the respondent that there are facts and circumstances which would not attract such presumption. The said aspect is coupled with the fact that for change of the name of the petitioner by changing his identify, it is also published in the Government Gazette dated 10.4.2003 and therefore a judicial notice can be taken that such adoption is accordingly notified in the government gazette and known to the public at large.”

The case of Bhavya Rajeshkumar Patel Vs. State of Gujarat being Special Civil Application No.9930 of 2015 decided on 10.12.2015 also drew in the similar controversy. It was the case of Nitaben (supra), aid of which has been taken in the case of Bhavya Rajeshkumar Patel (supra) and the fact of that case is squarely applied to the facts of the present case. For same proposition of law, another two decisions can be pressed into service i.e. in case of Manoj Omprakash Goyal Vs. State of Gujarat [2011 (2) GLH 455] as well as Rameshbhai Nathubhai Solanki Vs. Rajkot Municipal Corporation [2013 (2) GLR 1535]. This Court in case of Nita (supra), in para 5, held and observed thus:-

“Respondent No.2 which is the competent authority functioning under the Registration of Births and Deaths Act is vested with statutory power under Section 15 of the said Act which empowers the authority to effect correction in the entries in the Birth Certificate. The decision of this Court in Nitaben Nareshbhai Patel Vs State of Gujarat[(2008) 1 GLR 884] held that the authority under the Act is duty bound to exercise powers under Section 15 of the Act read with Rule 11 of the Gujarat Registration of Birth and Death Rules, 2004 and consider the request for corrections in the Birth Certificate. It is held that a writ of mandamus can be issued since the authority is statutorily enjoined to act.”

Further, in para 6.1, it was observed that the Registered Adoption Deed has to be treated valid,

“The date of birth and the other details of the petitioner is already recorded in the Birth Certificate issued by the authority at the relevant time. It cannot be gainsaid that the registered Adoption Deed has to be a valid aspect to go into the consideration of the authority when he deals with the application of the petitioner for correction in the Certificate of Birth.”

What perceives from the aforesaid decisions is that the registered adoption deed is binding to the concerned authority under the Registration of Death and Birth. Once, it is registered deed of adoption, the same cannot be called in question by the appellant herein. In the present case, the change of name of the father was asked for on the basis of registered adoption deed. It is undisputed that the original petitioner became the adoptee father of son "James" in view of execution of the registered adoption deed. The Registrar therefore, is bound by law to incorporate change in the Register of Birth and Death on the basis of the registered adoption deed.

Appreciating submission canvassed by learned advocate Mr. Kaushal Pandya that no proper "Dattak Vidhan" has been performed, which is essential for the true and correct adoption in view of section 11(vi) of the Act. Worth to note that while arguing, learned advocate Mr. Kaushal Pandya did not read the adoption deed (Annexure B), more particularly para 2 and 4. Perusing the averments made in para 2 and 4 of the adoption deed (Annexure B), it clearly indicates performing of "Dattak Vidhan" ceremony. Not only that, it also indicates giving and taking of minor son “James”. Thus, the submission is made without support of the evidence. 16. Another submission was that in view of section 9(2) of the Act, mother cannot give a child in adoption without the consent of father. The submission as well as reading of section 9(2) of the Act is totally incorrect, as section 9(2) recognized equal right of mother and father to give their children in adoption.

In view of the law laid down by the Hon’ble Division Bench, the registered adoption deed is binding to the concerned authority. Once, the deed of adoption is registered, the same cannot be called in question by the respondent herein. The respondent passport authority is bound by law to take cognizance of the registered adoption deed. The respondent No.2 passport authority is directed to process the application of the petitioner No. AH2060850894425 dated 24.03.2025 on the basis of the Registered Adoption Agreement dated 20.07.2016 and the Office Memorandum dated 14.11.2024 on its own merits and in accordance with law without being influenced by communication dated 22.05.2025 as expeditiously as possible and preferably within 6 weeks from the date of receipt of this order.

With above direction, the present Special Civil Application stands disposed of. No order as to costs.

Direct Service is permitted.