Sometimes at the time of adoption a document is executed by the parties and registered with the Registrar of Documents. When there is a dispute as to the factum of adoption, the question arises as to the evidentiary value of such a registered instrument of adoption.
It should be remembered in this connection that a registered instrument per se (by itself) does not bring about an adoption. It can only serve as evidence of the adoption which has to be proved by evidence as to the giving and taking of the boy in adoption. In Biradhmat v. Prabhabati, AIR 1939 PC 152, there was a registered instrument of adoption. The Privy Council did not treat it as a substitute for the giving and taking which is necessary to constitute adoption. It rather relied on the evidence to the effect that the widow making the adoption, the boy to be adopted and the natural father of the boy were all three present at the time of the execution of the document before the Registrar.
They observed: “Their Lordships think that the evidence that the boy was present at the time when the Sub- Registrar put to his father and to the widow the question whether they had executed the deed is sufficient to prove a giving and taking”. The giving and taking may be done even at the time of the registration of the document. It is, thus, a simple ceremony.
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ADVERTISEMENTS:
But as observed by Subbarao, in Lakshman Singh v. Rup Kanwar, AIR 1961 SC 1378. “A ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of the diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents after exercising their volition to give and take the boy in adoption may both or either of them delegate physical act of handing over the boy or receiving him as the case may be, to a third party”.
Thus, it is clear that the registered instrument of adoption is one important piece of evidence, but it is not conclusive evidence of the adoption. It is by the fact of “giving and taking” that the adoption takes place and not merely by virtue of the adoption deed.
Presumption when Arises:
The statutory presumption under s. 16 arises only when the document is signed by both persons the person giving in adoption and the person taking in adoption. If it is not signed by the giver (natural father of the boy), the presumption does not arise. Ram Jagat v. Kamchander, AIR 1984 All. 44.
ADVERTISEMENTS:
If there is a registered deed of adoption there will be presumption that the adoption has been made in compliance with the provisions of Hindu Adoptions and Maintenance Act, unless it is rebutted. Amrita Vijay Vora v. Union of India, AIR 2004 Guj. 51: 2004 (1) HLR 680 (Guj)’.