Gujarat High Court
Dharmendrakumar Surajprasand ... vs Ramkumar Ramdev Latoriya on 6 September, 2021
Bench: B.N. Karia
C/SCA/10674/2021 ORDER DATED: 06/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10674 of 2021
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DHARMENDRAKUMAR SURAJPRASAND LATORIYA
Versus
RAMKUMAR RAMDEV LATORIYA
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No. 1
MR MOHAMMED K VOHRA(10709) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 06/09/2021
ORAL ORDER
1. Rule. Mr.Mohammed K. Vohra, learned advocate waives
service of notice of Rule for and on behalf of the respondent
nos.1 and 2.
2. By way of this petition, the present petitioner has
challenged the order dated 31.03.2021 passed by the District
Court, Mehsana in Civil Misc. Application No.2 of 2021
rejecting the application preferred by the petitioner with a
prayer to enter the name of the applicants as legal
mother/father of Latoriya Shikha and to pass an order that in
all the documents of Latoriya Shikha, to give the authority and
power to enter the name of the applicant as mother/father.
C/SCA/10674/2021 ORDER DATED: 06/09/2021
3. The petitioner, in his application under Section 9 of the
Hindu Adoption and Maintenance Act, 1956, prayed for the
following relief(s):
"a) This Honourable Court be pleased to allow this petition.
b) This Honourable Court be pleased to issue a writ of
mandamus or certiorari or in the nature of mandamus or
certiorari or any other appropriate writ, order or direction,
quashing and setting aside the Order dated 31 st March
2021 passed by the District Court, Mehsana in Civil Misc.
Application Number 2 of 2021 produced at Annexure A
and declare the same to be null and void and further be
pleased to pass consequential orders;
c) Pending the admission and final disposal of the petition
this Honourable Court be pleased to stay the execution
and implementation of the order dated 31st March 2021
passed by the District Court, Mehsana in Civil Misc.
Application Number 2 of 2021;
d) This Honourable Court be pleased to grant ad-interim
relief in terms of para-c).
e) To pass such other and further orders as are necessary
in the interest of justice."
4. The learned Second Additional District Judge, Mehsana,
vide order dated 31.03.2021, rejected the application preferred
by the petitioner observing in Paragraph No.6 as under:
C/SCA/10674/2021 ORDER DATED: 06/09/2021
"6. As per the latest judgment of Hon'ble Apex Court
M.Vanaja Vs. Sarladevi (Dead) dtd. 06.03.2020, and as
per section 7 and 11, consent of the mother is material
and necessary and is mandatory for an adoption to be
treated as valid and other conditions proof of the
ceremony of actual giving and taking in adoption. In the
present matter there is no pleading in the plaint
regarding the adoption being in accordance with the
provisions of the Act. The petitioner has claimed relief to
enter the name of applicant in all documents of Shikha
for that relief this court has no jurisdiction to grant relief.
Name entered in the school leacing certificate and birth
certificate for that purpose specific provisions is made in
particular act. Therefore, petitioner has to approach
before the concerned authority when specific remedy is
available, no alternative remedy can be granted. As
discussed above there is clear legal defect in the
adoptive deed. Therefore, without considering the
legality of the deed, no any declaration can be passed.
Hence, I pass following order:-
-:: ORDER ::-
1. The present C.M.A. 2/2021 is hereby rejected.
2. No order as to costs."
5. Learned advocate for the petitioner submits that
modified adoption deed is executed between the parties i.e. the
petitioner and the respondent by entering the name of mother
C/SCA/10674/2021 ORDER DATED: 06/09/2021
Chandrika wife of Dharmendrakumar Latoriya and it is duly
executed before the Registrar, Office of Vadgam, Vadodara
dated 01.09.2021. He has produced an affidavit of mother viz.
Chandrika wife of Dharmendrakumar Latoriya declaring that
she herself and her husband have executed correction deed
dated 01.09.2021 correcting the error into the original deed
dated 19.12.2020.
6. Considering the modified doption deed dated 01.09.2021
and the affidavit of mother viz. Chandrika wife of
Dharmendrakumar Latoriya, learned advocate for the
petitioner has requested to remand the matter for fresh
decision by District Court, Mehsana. Learned advocate for the
respondent has no objection if the matter is remanded by this
Court to the District Court, Mehsana for fresh adjudication
considering the deed executed between the parties dated
01.09.2021 and the affidavit of the mother/wife of the
petitioner. The impugned order dated 31.03.2021 passed by
the District Court, Mehsana in Civil Misc. Application No.2 of
2021 shall be quashed and set aside and this matter would be
remanded to the District Court, Mehsana for fresh
adjudication permitting the petitioner to produce modified
C/SCA/10674/2021 ORDER DATED: 06/09/2021
adoption deed dated 01.09.2021 and the affidavit of mother -
Chandrika wife of Dharmendrakumar Latoriya. Learned
District Judge/Additional District Judge, Mehsana will decide
the issue in accordance with law afresh, giving opportunity to
either side to lead their evidence.
7. With the above observations, the present petition is
allowed. Rule is made absolute accordingly.
Direct Service is permitted.
(B.N. KARIA, J)
rakesh/
