Dismissed

Yogendra Pratap @ Manu Babu v. Smt. Mudita and Others

Allahabad HC1 Aug 2024/142/2024

Case brief

AI extract

What is this about?

In this second appeal, the Allahabad High Court dismissed the appellant's challenge to the declaration that his adoption was void. The court held that the mandatory consent of the wife under Section 7 of the Hindu Adoption and Maintenance Act was not given and the claim of deemed consent was unsupported by evidence.

What did the court decide?

The Second Appeal No. 142 of 2024 is dismissed, with costs of the appeal to the respondent.

Yogendra Pratap @ Manu Babu Vs Smt. Mudita and… — Succession and Inheritance | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:52722

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Court No. - 6

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Case :- SECOND APPEAL No. - 142 of 2024

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Appellant :- Yogendra Pratap @ Manu Babu Respondent :- Smt. Mudita And Others Counsel for Appellant :- Yogesh Kesarwani,Amar Deep Mishra

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Hon'ble Rajnish Kumar,J.

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Heard, Shri Yogsh Kesarwani, learned counsel for the appellant.

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This Second Appeal has been filed for setting aside the judgment and order dated 29.03.2024 and decree dated 04.04.2024 passed in Regular Civil Appeal No.05 of 2022; Arvind Kishore and others Versus Smt. Urmila Devi and another by the Additional District Judge, Room No.08, DistrictBarabanki and judgment and decree dated 03.01.2022 passed in Regular Suit No.139 of 2001; Smt.Urmila @ Urmila Devi and another Versus Arvind Kishore and others by the Additional Civil Judge (Sr.Div.), Court no.23, Barabanki.

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Learned counsel for the appellant submits that the adoptive mother of the appellant Smt. Urmila Devi @ Urmila was living separately from his adoptive father Harivansh Kishore since a long time. The adoptive father of the appellant had telephonically sought the consent of her wife Smt.Urmila Devi @ Urmila, on which she got angry and stated that she died for him and the relations of husband and wife have come to an end, therefore, he should not talk to her and if he tried to talk, she will get him lodge in jail. Thus the submission that since they were living separately, therefore, in the circumstances there was deemed consent in view of the said talk between the adoptive father and the adoptive mother of the appellant. But learned trial court as well as the appellate court failed to consider the same and decreed the suit filed by the adoptive mother of the

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appellant for cancellation of adoption deed and the appeal filed by the appellant has also been dismissed. Therefore the appellant is before this court.

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Having considered the submissions of learned counsel for the appellant I have perused the documents placed on record.

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A suit was filed by Smt. Urmila Devi @ Urmila alongwith her daughter Smt. Mudita for declaration of adoption deed dated 21.06.1999, by means of which the appellant was adopted, as void on the ground that it was without her consent and no rituals were performed. It was also alleged that she had to live separately from her husband Harivansh Kishore as he was not taking care of her and their daughter and Arvind Kishore i.e. the natural father of the appellant was a political person and he had stated that he will get his son adopted by her husband.

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The suit was contested on the ground that the adoptive father had telephonically sought the consent of his wife, on which she got angry and stated that she has died for him and the relations of husband and wife have come to an end, therefore, he should not talk to her and if he would try to talk, she will get him lodge in jail, therefore under the circumstances her deemed consent was there. Thereafter the issues were framed and evidence was adduced by the parties.

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After considering the pleadings of the parties and the evidence and the law laid down by the Hon'ble Supreme Court the trial court found that no consent was given by Smt.Urmila Devi @ Urmila to her husband Harivansh Kishore for adoption of the appellant Yogendra Pratap alias Manu Babu and dismissed the suit. The appeal filed by the appellant has also been dismissed accordingly after considering the pleadings of the parties and evidence on record.

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Section 6 of the Hindu Adoption and Maintenance Act, 1956 provides the requisites of a valid adoption. The first condition is that no adoption shall be valid unless the person adopting has the capacity, and also the right, to take in adoption. Section 7 provides the capacity of a male Hindu to take in adoption, according to which any male Hindu, who is of sound mind and is not a minor has the capacity to take son or a daughter in adoption. Proviso appended to Section 7 provides that if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

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In view of above a male Hindu has capacity of valid adoption only if his wife, if she is alive, has consented for it, failing which the first requisite condition of adoption under Section 6 is not complete and adoption would be void.

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In the present case the wife herself had filed suit for declaration of adoption deed void on the ground that she has not given any consent for adoption. So far as the plea taken by the appellant is concerned, perusal of the adoption deed filed alongwith the supplementary affidavit indicates that this averment is not in the adoption deed. If the appellant had sought for consent, in the manner stated, then he should have disclosed it in the adoption deed to show his capacity for adoption. Therefore the plea taken by the adoptive father was nothing an after thought, when the suit was filed. Even otherwise he failed to prove even his talk with her wife and the alleged statement of wife of adoptive father of the appellant as disclosed by him can not be treated her consent and in fact it appears that the adoptive father of the appellant was responsible for their separate living and the adoption is nothing but an

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attempt to part her and their daughter of their valid right in his property.

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In view of above learned trial court as well as the appellate court has rightly considered the pleadings, evidence on record and decreed the suit and dismissed the appeal, which does not suffer from any illegality or error. The appeal has been filed on misconceived and baseless grounds. No substantial question of law arises in this appeal.

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The Second Appeal is, accordingly, dismissed .

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...................................... .(Rajnish Kumar,J.) Order Date :- 1.8.2024 Banswar

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Digitally signed by :- RAM NARESH BANSWAR High Court of Judicature at Allahabad, Lucknow Bench

Yogendra Pratap @ Manu Babu v. Smt. Mudita and Others

Case brief

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Yogendra Pratap @ Manu Babu v. Smt. Mudita and Others

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