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Vijaykumar Ramanlal Visavaliya vs Amreli Municipality on 3 July, 2019

C/SCA/19505/2018 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 19505 of 2018

VIJAYKUMAR RAMANLAL VISAVALIYA
Versus
AMRELI MUNICIPALITY

Appearance:
MR Y J PATEL(3985) for the Petitioner(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

Date : 03/07/2019
ORAL ORDER

1. This petition is filed under SectionArticle 226 of the Constitution of
India is filed with the following prayers:

“(A) Your Lordships may be pleased to issue a writ of mandamus or
any other appropriate writ, order or direct the respondent- Amreli
Municipality to entering the name of the petitioner in father Column in the
birth certificate dated; 02.12.2013 issued by the Amreli Municipality in the
name of Minor Param forthwith pursuant to representation dated
13.11.2018 made by the petitioner to Amreli Municipality herein;

Alternatively;

(B) Your Lordships may be pleased to issue a writ of mandamus or
any other appropriate writ, order or direct the Amreli Municipality herein
to decide representation dated; 13.11.2018 made by the petitioner to
Amreli Municipality herein as early as possible;”

2. Learned advocate for the petitioner submits that the
respondent intends to mention the name of the petitioner as father in
Birth Certificate dated; 02.11.2013 issued by the Amreli Municipality
in the name of Minor Param. It is submitted that the birth certificate
dated; 02.11.2013 issued by the Amreli Municipality in the name of
Minor Param wherein father’s name was mentioned as Bhavin
Mansukhlal Patel and mother’s name was Charmiben because on
23.05.2010 Bhavin Mansukhlal Patel’s marriage solemnized with
Charmiben and out of the first wedlock Minor Param aged about 5
years was born and due to some matrimonial dispute between Bhavin

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C/SCA/19505/2018 ORDER

Mansukhlal Patel and Charmiben both the parties jointly decided to
dissolve the marriage and therefore on 20.08.2018 cross dissolution
of the marriage deed is prepared and signed by both the parties and
same is also registered before the Sub-Registrar Office at
Gandhinagar. It is also submitted that on 27.08.2018 mother of minor
child namely Param got married with the petitioner and on
12.09.2018 that marriage was registered before Marriage
Registration Office at Gandhinagar and petitioner is also accepting
the minor child Param as son and therefore, on 13.11.2018 present
petitioner made representation before Amreli Minicipality for entering
his name in father’s column in the birth certificate dated; 02.12.2013
issued by the Amreli Municipality in the name of Param.

3. Learned advocate refers to and relied upon the decision of this
Court in Special Civil Application No.3737 of 2019 and Special Civil
Application No. 7864 of 2016 wherein in the identical set of
circumstances the name of the adoptee father was ordered to be
entered in the record as well as the birth certificate.

4. Learned advocate for the respondent states that as per the
requirement of Government Resolution dated 10.03.2016 the
petitioner was required to produce the dated of adoption which at the
relevant time was not produced.

5. Under the rejoinder, learned advocate states that the
registered adoption deed is already filed on record by way of draft
amendment and is ready and willing to furnish the same before the
authority.

6. I have considered the rival submissions and I have also perused
the documents on record. This Court in the above referred judgment
has held as under:

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C/SCA/19505/2018 ORDER

“12. Section 16 of the the Hindu Adoptions and SectionMaintenance
Act, 1956, provides as under:

“Whenever any document registered under any law for the
time being in force is produced before any court purporting to record
an adoption made and is signed by the person giving and the person
taking the child in adoption, the court shall presume that the
adoption has been made in compliance with the provisions of this Act
unless and until
it is disproved.”

13. In the case on hand, the decree of divorce between the
biological parents clearly provides that custody of minor Harsh would
be with the wife of the petitioner and respondent no.3 as former
husband, has given up all his rights. The Deed of Adoption is a
registered deed which is not challenged by anybody. On the contrary,
as noted hereinabove, respondent no.3 who happens to be the
biological father of the minor child Harsh has expressed by way of an
affidavit before this
Court in this petition unequivocally that he has no objection if the
petitioner’s name is substituted as father. Thus, as provided under
Sectionsection 16 of the the Hindu Adoptions and SectionMaintenance Act, 1956,
minor Harsh is lawfully adopted and the Deed of Adoption is
registered
and therefore the presumption as per the provisions of Sectionsection 16 of
the Act can be drawn in favour of the petitioner as there is no
rebuttal by the procedure known to the law. Following the ratio laid
down by this Court in the case of SectionN.R. Trivedi v. District Education
Officer, Anand , AIR 2004 Guj 53, thus, from the record of this case, it
appears that the presumption as regards adoption by a registered
deed would be in favour of the petitioner.”

7. Considering the fact that the adoption deed is now on record
and the same is requirement of the authorities, it will be open for the
petitioner to make afresh application along with necessary
documents including registered adoption deed, which the
respondents shall consider within a period of two months after
affording an opportunity of hearing to the petitioner.

8. With the aforesaid directions the petition stands disposed of.
Direct service is permitted.

(A.Y. KOGJE, J)
URIL RANA

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