Shaikh Mohammad Muzzamil ... vs State Of Gujarat
2022 Latest Caselaw 8612 Guj

Citation : 2022 Latest Caselaw 8612 Guj
Judgement Date : 29 September, 2022

Gujarat High Court

Shaikh Mohammad Muzzamil ... vs State Of Gujarat on 29 September, 2022

Bench: Nirzar S. Desai

     C/SCA/14091/2022                                 ORDER DATED: 29/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14091 of 2022

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            SHAIKH MOHAMMAD MUZZAMIL MOHAMMAD IDRIS
                              Versus
                        STATE OF GUJARAT
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Appearance:
MRS NASRIN N SHAIKH(2451) for the Petitioner(s) No. 1,2
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
MR KSHITIJ AMIN for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 29/09/2022

                             ORAL ORDER

1 By way of this petition under Article 226

of the Constitution of India, the petitioner has

prayed for direction to respondent No.2 - passport

authority to issue a passport to the adopted child of

the petitioner on the basis of registered adoption

deed showing names of father and mother respectively.

2 It is the case of the petitioner that their

minor child viz. Mohammad Arshad Mohammad Muzzammil

was adopted by the petitoenr vide registered adoption

deed executed on 29.9.2021 vide registered Adoption

C/SCA/14091/2022 ORDER DATED: 29/09/2022

Deed bearing No.AHD-4 Paldi 12734/2021.

2.1 When the petitioner applied for passport of

the minor child - Mohammad Arshad Mohammad Muzzammil

on the basis of the aforesaid adoption deed, the

respondents vide communication dated 11.4.2022 asked

the petitioner to furnish court decree for issuance

of passport and ultimately vide communication dated

26.5.2022 the application made by the petitioner was

closed by the respondent authorities.

3 Ms.N.N.Shaikh, learned advocate for the

petitoenr, drew attention of this Court to the

registered adoption deed executed by the petitioner

while adopting their son - Mohammad Arshad Mohammad

Muzzammil and submitted that in view of the aforesaid

adoption deed, which is a registered document for

issuance of passport, no decree of the court would be

required.

3.1 Ms.Shaikh placed reliance on order dated

18.2.2016 delivered by this Court in the case of

C/SCA/14091/2022 ORDER DATED: 29/09/2022

Ishit Baljinder Singh Brar through his guardian vs.

Regional Passport Authority, in Special Civil

Application No.385 of 2016, wherein in paras 7 to 10,

co-ordinate Bench of this Court observed as under:

"7. More over, the record which is produced in this petition also goes to show that as per the deed of dissolution of marriage or deed of divorce it was agreed between Ashokbhai and Alkaben that the custody of the daughter who is petitioner herein is to remain with Alkaben, the mother. When the mother Alkaben has married Vijay Hiralal Vora there is sufficient proof for marriage and since the factum of registration of marriage is legal, Ashokbhai even otherwise also would not be able to challenge the adoption made by Vijay Hiralal Vora who has become the father of the petitioner on account of her biological mother remarrying with Vijay Hiralal Vora.

8. In view of the aforesaid facts and circumstances of the case, I find that the passport authority should consider the matter accordingly as per the observations and findings recorded by this court for issuance of passport on the basis that Amruta - the

C/SCA/14091/2022 ORDER DATED: 29/09/2022

petitioner herein is now lawful daughter of Vijay Hiralal Vora irrespective of the entry in the birth register because the position prevailed at the time of birth and its registration was different on account of subsequent change in the status of the petitioner and considering the peculiar circumstances the birth certificate can only be relied for the purpose of date of birth and not for the purpose of ascertaining the status of lawful father on the date of the application for passport."

10. Similar view is also taken by this Court in the judgments which are relied upon by Mr.Hathi, learned counsel for the petitioners. This Court in Patel Mukeshkumar Karshanbhai Vs. Regional Passport Authority reported in 2012(1) GLR 682, following the ratio of Amruta Vijay Vora (supra), has in para 11, observed thus-

"11. The said provision of law makes it clear that a legal presumption is attached to any registered document pertaining to an adoption, and it shall be presumed that such adoption has been made in compliance with the provisions of the Hindu Adoptions and Maintenance Act, 1956

C/SCA/14091/2022 ORDER DATED: 29/09/2022

"unless and until" it is disproved. The adoption of the petitioner has been effected by a Registered Deed. It is not the case of the respondent that the adoption of the petitioner has been disproved, therefore, the presumption envisaged by Section 16 will come into play and it is not open to the said respondent to pronounce upon the legality, or otherwise, of the adoption of the petitioner, which has not been disproved by a competent court of law."

3.2 By relying upon the above decision of co-

ordinate Bench of this Court, learned advocate for

the petitioner prayed that the Regional Passport

Authority may be directed to issue a fresh passport

in the name of his adopted son, if the petitioners

make fresh application.

4 Mr.Kshitij Amin, learned Standing Counsel

for the respondent Regional Passport Authority

opposed the petition by stating that it is one of the

requirements of the Passport Authority to insist for

decree of the court while issuing passport of the

C/SCA/14091/2022 ORDER DATED: 29/09/2022