1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8505 OF 2009 1) Sulanbai w/o Keshavrao Potadar, R/o-Jawali, Tq-Ausa, Dist-Latur, 2) Santosh s/o Keshavrao Potadar @ Santosh s/o Prafulla Potadar, R/o-Jawali, Tq-Ausa, Dist-Latur ...PETITIONERS. VERSUS 1) The State of Maharashtra, Through the Secretary, Earthquake Rehabilitation, Revenue and Forest Department, Mantralaya, Mumbai, 2) The Sub Divisional Officer, Latur, Tq. & Dist-Latur, 3) The Tahsildar, Ausa, Tq-Ausa, Dist-Latur. ...RESPONDENTS. ... Mr.S.S. Manale Advocate for Petitioner. Mrs.A.V. Gondhalekar, A.G.P. for Respondents. ... CORAM: A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 13TH JANUARY, 2010. 2 PER COURT : 1. Heard learned counsel for the parties. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, the matter is taken up for final hearing at the stage of admission itself. 2. The limited relief claimed in this Petition is to issue direction to Respondent Nos. 2 and 3 to issue earthquake affected certificate in the name of Petitioner No.2 without insisting for document of adoption from the competent Court. This relief is necessitated on account of the fact that the Petitioner No.2 is the adopted son of Petitioner No.1. He had applied for the aforesaid certificate, which application was returned with observation that he cannot merely rely on the registered adoption deed but he will have to produce the order of the Court that his adoption is valid and proper. This approach of the authorities is the subject matter of challenge in 3 the present Petition. 3. The learned A.G.P. appearing for the Respondents has reiterated the same position and has relied on Section 9 of the Hindu Adoptions and Maintenance Act, 1956. The argument clearly overlooks that Section 9 (1) provides that the father or mother of a child shall have the capacity to give the child in adoption. In the present case the father and mother of the Petitioner No.2 were alive when the Petitioner No. 2 was adopted by the Petitioner No.1. 4. The requirement of seeking declaration from the Court would be necessary where both the father and mother of the child are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known. It is only in that situation the permission of the Court would become necessary. That is the 4 mandate of sub Section (4) of Section 9 of the Act of 1956. We are not concerned with that situation. In our case, the Petitioners are relying on the registered adoption deed coupled with the fact that the father and mother of Petitioner No.2 were alive. 5. Section 16 of the Act of 1956 clearly provides that whenever any document, registered under any law for the time being in force, is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. 6. Keeping that principle in mind, the authorities cannot ignore the registered document produced by the Petitioners. As aforesaid, the Petitioner No.1 has taken Petitioner No.2 in adoption and the father and mother of the 5 Petitioner No.2 are still alive. In such a situation, the question of seeking declaration from the Court may not be necessary. 7. In the circumstances, this Petition succeeds. The Respondent Nos. 2 and 3 shall consider the request of the Petitioners for issuance of earthquake affected certificate in favour of Petitioner No.2 without insisting for declaration from the Court of law of his adoption being valid and proper. 8. Rule is made absolute on the terms indicated above. [S.S. SHINDE, J.] [A.M. KHANWILKAR, J.] asb/JAN10/wp8505.09