Prameela L. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944** ## **WP(C) NO. 16361 OF 2022** ## **PETITIONER:** PRAMEELA L., AGED 41 YEARS KARITHALAIKKAL PUTHEN VEEDU, KEEZHKOLLA, VATTAVILA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT - 695 132. BY ADVS. S.BALACHANDRAN (KULASEKHARAM) K.SURENDRAN (PARASSALA) ## **RESPONDENTS:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT,| ||GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.| |2|DISTRICT COLLECTOR| ||COLLECTORATE, KUDAPPANAKUNNU P.O.,| ||THIRUVANANTHAPURAM - 695 505.| |3|SUB COLLECTOR| ||COLLECTORATE, KUDAPPANAKUNNU P.O.,| ||THIRUVANANTHAPURAM - 695 505.| |4|THE TAHSILDAR| ||TALUK OFFICE, HOSPITAL JUNCTION, NEYYATTINKARA,| ||THIRUVANANTHAPURAM - 695 121.| |5|VILLAGE OFFICER| ||MARANALLOR, NEYYATTINKARA,| ||THIRUVANANTHAPURAM - 695 121.| ## **OTHER PRESENT:** W.P.(C).16361/2022 2 GP AMMINIKUTTY K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING: W.P.(C).16361/2022 3 ## **JUDGMENT** Dated this the 15[th] day of December, 2022 The petitioner claims to be the adopted daughter of a person named K. Gopalan. According to the petitioner, her mother died when she was two years and her father, while she was four years. Thereafter, Gopalan took her to his residence and brought her up as his daughter. On the petitioner attaining 18 years, Gopalan got her married to his sister's son, Thankaraj. Gopalan was a bachelor and died issueless on 11.10.2019, while working as a part-time sweeper in the office of the Deputy Commissioner, GST, Thiruvananthapuram. Thereupon, the petitioner submitted an application seeking compassionate appointment in her capacity as Gopalan's adopted daughter. The prospective employer directed the petitioner to produce Legal Heirship Certificate to substantiate her claim. The Tahsildar, Neyyattinkara conducted enquiry and declined the request for Legal Heirship Certificate. The petitioner's appeal was rejected by the 3[rd] respondent as per W.P.(C).16361/2022 4 Ext.P2 order, holding that the petitioner had failed to produce any authentic document evidencing adoption. Aggrieved, this writ petition is filed. 2. Learned Counsel for the petitioner submitted that Ext.P2 order was passed based on the legal opinion of the District Collector that, in the absence of a formal document evidencing adoption issued under the Hindu Adoption and Maintenance Act, 1956 ('Act' in short), petitioner will have to approach the District Court for remedy. It is contended that for the purpose of Legal Heirship Certificate, there is no necessity of obtaining Certificate of Adoption either under the Hindu Adoption and Maintenance Act or from the District Court. The District Court can issue Adoption Certificates only with respect to persons coming under Section 10 of the Act. For that, the person to be adopted should be a Hindu, should not be married and should be below 15 years of age. Therefore, by requiring the petitioner to obtain such a Certificate, the respondents are asking for an impossibility. Reliance is placed on the observation in Ext. P3 communication W.P.(C).16361/2022 5 of the Tahsildar, Neyyattinkara wherein reference is made to the Village Officer's finding after enquiry that petitioner is the adopted daughter of K. Gopalan. Reference is made to the recital in Ext.P7 Will, wherein Gopalan has described the petitioner as his adopted daughter. Relying on the decision in **Bhagyalakshmy v. R.T.A., Palakkad** [2010 (2) KLT 431], it is contended that the insistence on production of Legal Heirship Certificate for claiming compassionate appointment itself is illegal. 3. Learned Government Pleader contended that the appointing authority can process a claim for compassionate appointment only on being convinced that the claimant is the adopted child of the employee who had died in-harness. For that, the claimant is bound to produce an authenticated document, which as far as adoption are concerned, is the Adoption Certificate. In the absence of such certificate, there has to be a declaration from the competent court. 4. It is settled law that for a valid adoption, the physical act of giving and taking is an essential requisite. This requisite W.P.(C).16361/2022 6 will be satisfied only by the actual delivery and acceptance of the adopted child, even if there exists an expression of consent or an executed deed of adoption. Admittedly, no formal process of adoption was undertaken by Gopalan while he was alive. The mere description of the petitioner as an adopted daughter in some of the documents executed by Gopalan cannot be accepted in lieu of a formal certificate of adoption. No doubt, under the Act, only a Hindu below 15 years of age can be adopted. If Gopalan was desirous of adopting the petitioner, he could have done that after a process of conversion. At this point of time, the petitioner cannot demand that such process having become an impossibility, the requirement of producing certificate evidencing adoption should be waived. It is also pertinent to note that after the introduction of the Juvenile Justice (Care and Protection of Children) Act 2000, as amended in 2006, now replaced with the Act of 2015, it became possible for a prospective parent to opt for adoption in accordance with the procedure prescribed, without following the duties of his or her W.P.(C).16361/2022 7 ## personal law. In this context, it is apposite to read the following discussion in **Shabnam Hashmi v. Union of India and Ors** . [(2014) 4 SCC 1); “The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.” 5. Therefore, the contention that Gopalan could have adopted the petitioner under the Hindu Adoption and W.P.(C).16361/2022 8 Maintenance Act and the petitioner being a Christian, such adoption was an impossibility cannot be countenanced. 6. In such circumstances, the rejection of the petitioner's request for Legal Heirship Certificate and Ext. P2 appellate order cannot be interfered with. The decisions relied on by the learned Counsel for the petitioner were entered under entirely different facts and circumstances and have no application to the case at hand. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** sb W.P.(C).16361/2022 9 ## **APPENDIX OF WP(C) 16361/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|COPY OF APPLICATION OF THE PETITIONER DATED| ||1/6/2021 BEFORE THE GOVERNMENT FOR GETTING| ||COMPASSIONATE APPOINTMENT UNDER DYING IN| ||HARNESS SCHEME.| |Exhibit P2|COPY OF THE ORDER OF SUB COLLECTOR,| ||THIRUVANANTHAPURAM DATED 19/2/2022.| |Exhibit P3|COPY OF THE LETTER FORWARDED BY TAHSILDAR,| ||NEYYATTINKARA DATED 8/12/2021 TO THE SUB| ||COLLECTOR, CIVIL STATION, THIRUVANANTHAPURAM.| |Exhibit P4|COPY OF NOMINATION FOR DCR GRATUITY DATED| ||17/10/2008 SUBMITTED BY GOPALAN.| |Exhibit P5|COPY OF THE SETTLEMENT DEED 425/2016 EXECUTED| ||BY GOPALAN ON 11/4/2016 IN FAVOUR OF THE| ||PETITIONER AND HER HUSBAND.| |Exhibit P6|COPY OF LETTER ISSUED BY GOPALAN TO BANK| ||MANAGER DATED 16/4/2019.| |Exhibit P7|COPY OF WILL NO.34/17 DATED 4/8/2017 EXECUTED| ||BY GOPALAN IN FAVOR OF THE PETITIONER.|