# Mumtaz Alam v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Writ A No. 10807 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mumtaz-alam-v-state-of-u-p-ors-50883
- **Pages:** 7

## Headnote

A. Service Law - Constitution of India -
Article 21 - Right to adopt - Muslim
Personal law - UP Municipalities Act, 1916
- Family Pension - Claim was made by the
adopted
son
of
Muslim
employee
-
Permissibility - How far right to adoption
can be claimed as the fundamental right
under Article 21 - Held, it is high time
when the legislature ought to act and
ensure for every person, irrespective of
religion, realization of the right to adopt,
recognizing
it
as
one
that
is
an
inseparable part of the right to life in its
fullest content envisaged under Article 21
of the Constitution. But, this Court is of
opinion that it would not be appropriate
for us to step ahead and think about
declaring adoption a fundamental right for
every person by a judicial interpose,
because it is not yet very long ago
when the Supreme Court considered
the question in Shabnam Hashmi.
Nevertheless,
this
Court
would
strongly suggest to the legislature to
consider enactment of an appropriate
legislation providing every person,
irrespective
of
his
religious
persuasion,
a
right
to
adopt,
considering it a part of the right to
life.
(Para
15
and
17)
2 All. Mumtaz Alam Vs. State of U.P. & Ors.
285
Writ petition dismissed. (E-1)

List of cases cited :-

## Text

284 INDIAN LAW REPORTS ALLAHABAD SERIES
been held that a mere error in jurisdiction
without any material to cast doubt on the
integrity of the officer cannot be termed as
misconduct making the employee liable to
disciplinary proceedings. The charge-sheet
was void ab initio and the entire
disciplinary proceedings held against the
petitioner were contrary to law.

For the aforesaid reasons, the order
dated 14.1.2021 passed by the Special
Secretary, Appointment Section - 3,
Government of Uttar Pradesh, Lucknow
as well as the entire disciplinary
proceedings including the show cause
notice and the charge-sheet issued to
the petitioner are, hereby, quashed.

The writ petition is allowed. The
petitioner
will
be
entitled
to
all
consequential service benefits including
the arrears of salary that would accrue
in his favour from 14.1.2021 onwards.

The consequential service benefits
shall be given to the petitioner within
three months from the date a certified
copy of this order is produced before
the competent authority.

It is clarified that the findings
recorded in the present petition and the
observations made are only in the
context of disciplinary proceedings
against the petitioner and shall not apply
in
disciplinary
proceedings,
if
any,
instituted against the Sub-Divisional
Magistrate who passed the order dated
28.5.2013
and
the
Additional
Commissioner who passed the order
dated
27.8.2014
which
shall
be
decided on their own merits.

With the aforesaid directions, the
writ petition is allowed.
----------
(2024) 2 ILRA 284
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 10807 of 2023

Mumtaz Alam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sharad Charan Srivastava

Counsel for the Respondents:
C.S.C., Sri Devendra Kumar, Sri Shekhar
Gangal

A. Service Law - Constitution of India -
Article 21 - Right to adopt - Muslim
Personal law - UP Municipalities Act, 1916
- Family Pension - Claim was made by the
adopted
son
of
Muslim
employee
-
Permissibility - How far right to adoption
can be claimed as the fundamental right
under Article 21 - Held, it is high time
when the legislature ought to act and
ensure for every person, irrespective of
religion, realization of the right to adopt,
recognizing
it
as
one
that
is
an
inseparable part of the right to life in its
fullest content envisaged under Article 21
of the Constitution. But, this Court is of
opinion that it would not be appropriate
for us to step ahead and think about
declaring adoption a fundamental right for
every person by a judicial interpose,
because it is not yet very long ago
when the Supreme Court considered
the question in Shabnam Hashmi.
Nevertheless,
this
Court
would
strongly suggest to the legislature to
consider enactment of an appropriate
legislation providing every person,
irrespective
of
his
religious
persuasion,
a
right
to
adopt,
considering it a part of the right to
life.
(Para
15
and
17)
2 All. Mumtaz Alam Vs. State of U.P. & Ors.
285
Writ petition dismissed. (E-1)

List of cases cited :-

1. Shabnam Hashmi Vs U.O.I.& ors.; (2014) 4
SCC 1

2. Mohd. Arshad Jamal Vs St. of U.P. & ors.;
2018 SCC OnLine All 5737

3. Jasvir Singh & ors.Vs St. of Pun. & ors.; 2015
Crl.L.J. 2282

4. Manuel Theodore D'Souza; 1999 SCC OnLine
Bom 690

5. Philips Alfred Malvin Vs Y.J. Gonsalvis & ors.;
1999 SCC OnLine Ker 5

(Delivered by Hon'ble J.J. Munir, J.)

1. The issue is: Whether with the
evolution of society and the right to life
receiving
a
progressively
expanded
interpretation, should not the right to adopt
a child for citizens of India, who are
Muslims, be also regarded as part of the
fundamental right enshrined under Article
21 of the Constitution?

2. Since there is hardly a dispute on
facts involved in this case, Mr. P.C.
Srivastava, learned Additional Advocate
General assisted by Mr. Yashwant Singh,
learned Standing Counsel appearing on
behalf of respondent Nos.1 and 2, waived
their right to file a return. Likewise, Mr.
Shekhar Kumar, learned Counsel appearing
on behalf of respondent No.3, also waived
his right to file a counter affidavit.

3. The petition was, accordingly,
admitted to hearing and heard without a
return.

4. Heard Mr. Sharad Saran Srivastava,
learned Counsel for the petitioner, Mr. P.C.
Srivastava, learned Additional Advocate
General assisted by Mr. Yashwant Singh,
learned Standing appearing on behalf of
respondent Nos. 1 and 2, and Mr. Shekhar
Kumar, learned Counsel appearing on
behalf of respondent No.3.

5. The short facts giving rise to this
petition are that the petitioner, Mumtaz
Alam claims to be the adopted son of the
late Gulenoor Khatoon @ Noor Bano, wife
of Mohd. Haneef. Gulenoor Khatoon was
an employee of the Nagar Palika Parishad,
Khair, District Aligarh. She died on
08.01.2022. Gulenoor Khatoon's husband,
the late Mohd. Haneef had predeceased her
and they were an issueless couple.
Gulenoor Khatoon, therefore, thought that
she should adopt a child. The reason is
expressed in a document, that is described
as a deed of adoption or Godnama. The
motive assigned is that being issuless,
Gulenoor thought that it is necessary to
have a child. She was scouting for an
appropriate choice and requested her
brother to give his son in adoption. The
deed of adoption or Godnama, as the
document is described, was executed
between Gulenoor Khatoon as the first
party and Allauddin son of Mohd. Qasim
Ali, the second party.

6. The document describes that the
second party, upon considering the request,
decided to give in adoption his son,
Mumtaz Alam to the first party as her son.
The deed recites that Mumtaz Alam would
have all privileges to perform her last rites,
and on and from the date of adoption,
Mumtaz Alam, then aged 3 years, would be
her son. Mumtaz Alam's education and
upbringing would be taken care of by
Gulenoor Khatoon. Mumtaz Alam would
have the same rights vis-a-vis Gulenoor
Khatoon as a son towards his mother. He
286 INDIAN LAW REPORTS ALLAHABAD SERIES
would have the obligation to perform her
rights of the third day (Teeja) after her
demise and the fortieth day (Chaalisa). The
adoption deed also says that any other
relative of the bloodline, close or remote,
who may present any claim, contrary to the
deed of adoption, would be without right or
authority and considered void.

7. The petitioner, after demise of
Gulenoor Khatoon, claimed family pension
and other post retiral benefits due to the
deceased employee, on account of deathcum-retirement benefits. The petitioner's
case for grant of family pension and
gratuity was approved vide memo dated
13.07.2022 issued by the Deputy Director,
Local
Fund
Examination
Department,
Aligarh and addressed to the Executive
Officer, Nagar Palika Parishad, Khair,
District Aligarh. The Collector, Aligarh
vide a memo dated 18.08.2022 also
recommended
to
the
Additional
Commissioner, Aligarh Division, Aligarh
payment of death-cum-retirement benefits,
due on account of the deceased employee's
services, to the petitioner, treating him to be
her son.

8. The matter came up for approval
before
the
Additional
Commissioner,
Aligarh Division, Aligarh, acting instead
for the Commissioner as the Prescribed
Authority under the U.P. Municipalities
Act, 1916. The Additional Commissioner,
Aligarh Division, Aligarh has rejected the
petitioner's claim holding that under the
Muslim Law, there is no recognition of
adoption of a child. It was held that the
deed of adoption dated 03.04.2006 is void
in the eyes of law. There are some other
remarks as well disbelieving the adoption
deed. Those need not be examined, if the
question involved here is considered and
answered one way.

9. Learned Counsel for the petitioner
has placed reliance upon the decision of the
Supreme Court in Shabnam Hashmi v.
Union of India and others, (2014) 4 SCC
1.

10. On the contrary, Mr. P.C.
Srivastava has relied upon the decision of
this Court in Mohd. Arshad Jamal v.
State of U.P. and others, 2018 SCC
OnLine All 5737 to submit that there can
be no adoption by a Muslim, except after
following the procedure laid down in the
Juvenile Justice (Care and Protection of
Children) Act, 2015.

11. This Court has given its anxious
consideration to the question involved and
heard learned Counsel for the parties.

12. It is mooted by the petitioner that
the right to adopt ought to be regarded as
one of the facets of the 'right to life'
guaranteed under Article 21 of the
Constitution. He submits that one, who
does not have natural progeny, is entitled to
adopt, as that gives the adoptive parent(s) a
feeling and sense of perpetuation of life.

13. This Court would think much in
agreement with the learned Counsel for the
petitioner, as the right to procreate has been
regarded as a facet of right to life under
Article 21 of the Constitution in varied
context. In this connection, reference may
be made to the report in Jasvir Singh and
others v. State of Punjab and others,
2015 Crl.L.J. 2282, where the issue was
considered in the context of prisoners by
the Punjab and Haryana High Court. One
need not dwell upon it further because what
is in issue is not the right to procreate, but
the right to adopt.
2 All. Mumtaz Alam Vs. State of U.P. & Ors.
287

14. Reproduction, no doubt, is the
means of perpetuation of any specie of
living thing and humans are no exceptions.
But, for the refined human mind, the idea
of having a child may give some kind of a
feeling of perpetuation, an extension of life,
after the progenitor is no more. Could this
be held true of adoption, where there is no
feeling
of
a
bloodline
or
genetic
endowment in the adoptive progeny? So
long as modern science did not offer
options to humans of having children
otherwise than in due course of nature,
adoption served as a mechanism to fill-up
the void for an individual, who was
issueless. The uncodified Hindu Law,
coming from time immemorial, made
adequate provision for adoption and after
codification, the Hindu Adoptions and
Maintenance Act, 1956 has given the right
to adopt, both to a hindu male and a hindu
female.

15. This Court does not propose to go
into the significance of adoption under the
Hindu Religious Scriptures, which is not
relevant here. What this Court wishes to
emphasize is that dehors any religious
signification, the idea of perpetuation is
innate to human nature, like any other
specie. In the face of any contingency that
deprives a human from having a natural
progeny, adoption makes up for it. This
Court would think that the right indeed
would come to any person irrespective of
caste, creed, sex or religion, as a facet of
his right to life, acknowledged under
Article 21 of the Constitution. Of course,
the right to adopt, would have to be
governed by some kind of a statute,
applicable to all citizens. This Court is
mindful of the fact that the right to adopt
for any person, irrespective of his religious
persuasion, has not yet been recognized;
neither by the statute nor by judicial
acknowledgment.
The
question
arose
before the Supreme Court in Shabnam
Hashmi (supra), which was a Public
Interest Litigation instituted under Article
32 of the Constitution. The outline of the
case before the Supreme Court figures in
the opening paragraphs of the report of the
judgment of their Lordships in Shabnam
Hashmi, which reads:

"1. Recognition of the right to
adopt and to be adopted as a fundamental
right under Part III of the Constitution is
the vision scripted by the public-spirited
individual who has moved this Court under
Article 32 of the Constitution. There is an
alternative prayer requesting the Court to
lay down optional guidelines enabling
adoption of children by persons irrespective
of religion, caste, creed, etc. and further for
a direction to the respondent Union of India
to enact an optional law the prime focus of
which is the child with considerations like
religion, etc. taking a hind seat.

2.
The
aforesaid
alternative
prayer made in the writ petition appears to
have been substantially fructified by the
march that has taken place in this sphere of
law, gently nudged by the judicial verdict in
Lakshmi Kant Pandey v. Union of India
[(1984) 2 SCC 244] and the supplemental,
if not consequential, legislative innovations
in the shape of the Juvenile Justice (Care
and Protection of Children) Act, 2000 as
amended in 2006 (hereinafter for short "the
JJ Act, 2000") as also the Juvenile Justice
(Care and Protection of Children) Rules
promulgated in the year 2007 (hereinafter
for short "the JJ Rules, 2007").

16. In substance, the right for a
Muslim to adopt under the provisions of the
Juvenile Justice (Care and Protection of
Children) Act, 2000 [since repealed and
substituted by the Juvenile Justice (Care
288 INDIAN LAW REPORTS ALLAHABAD SERIES
and Protection of Children) Act, 2015] was
recognized by the Court as one created by
statute conferring right on a person,
irrespective of his/ her religious persuasion
to adopt. But, the right to adopt for a
Muslim, dehors the provisions of the
Juvenile
Justice
Act,
was
not
acknowledged.
Their
Lordships
also
thought that with the march of democracy,
the right to adopt for any person,
irrespective of his/ her faith, would come to
be regarded as a fundamental right.
However, they refrained at that time and
stage from declaring the right to adopt a
fundamental right, part of Article 21. The
decisions of the Bombay High Court in
Manuel Theodore D'Souza, 1999 SCC
OnLine Bom 690 and the Kerala High
Court in Philips Alfred Malvin v. Y.J.
Gonsalvis and others, 1999 SCC OnLine
Ker 5, were not accepted by their
Lordships as declarations raising the right
to adopt to the level of a fundamental right,
that was a concomitant of Article 21 of the
Constitution. The following observations of
their Lordships of the Supreme Court in
Shabnam Hashmi are noteworthy:

"13. 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, the 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 the 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.

14. The writ petitioner has also
prayed for a declaration that the right of a
child to be adopted and that of the
prospective parents to adopt be declared a
fundamental right under Article 21 of the
Constitution. Reliance is placed in this
regard on the views of the Bombay and
Kerala High Courts in Manuel Theodore
D'Souza, In re [Manuel Theodore D'Souza,
In re, (2000) 3 Bom CR 244] and Philips
Alfred Malvin v. Y.J. Gonsalvis [Philips
Alfred Malvin v. Y.J. Gonsalvis, AIR 1999
Ker 187] respectively. The Board objects to
such a declaration on the grounds already
been noticed, namely, that Muslim Personal
Law does not recognise adoption though it
does not prohibit a childless couple from
taking care and protecting a child with
material and emotional support.

15. Even though no serious or
substantial debate has been made on behalf
of the petitioner on the issue, abundant
literature including the holy scripts
have been placed before the Court by
the Board in support of its contention,
noted above. Though enriched by the
lengthy discourse laid before us, we do
not think it necessary to go into any of
the issues raised."
2 All. Mumtaz Alam Vs. State of U.P. & Ors.
289

17. Treading the same path that their
Lordships of the Supreme Court have
shown, this Court would think that it is
high time when the legislature ought to act
and ensure for every person, irrespective of
religion, realization of the right to adopt,
recognizing it as one that is an inseparable
part of the right to life in its fullest content
envisaged
under
Article
21
of
the
Constitution. But, this Court is of opinion
that it would not be appropriate for us to
step ahead and think about declaring
adoption a fundamental right for every
person by a judicial interpose, because it is
not yet very long ago when the Supreme
Court considered the question in Shabnam
Hashmi. Nevertheless, this Court would
strongly suggest to the legislature to
consider enactment of an appropriate
legislation
providing
every
person,
irrespective of his religious persuasion, a
right to adopt, considering it a part of the
right to life. The same view has been taken
by my esteemed brother Sudhir Agarwal in
Mohd. Arshad Jamal (supra), where His
Lordship held:

"8.
Now
looking
into
this
backdrop, I do not find that adoption in
Muslims has been recognized in any
Statute so as to confer a right of
succession/inheritance in the matter of
claiming compassionate appointment upon
petitioner. There is an exception, i.e.,
Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to
as "Act, 2000") as amended in 2006 which
permits adoption irrespective of religion or
other factors. Act, 2000 as amended is an
enabling legislation giving a prospective
parent, option of adopting an eligible child
by following the procedure prescribed by
Act, 2000 and Rules framed thereunder.
This
Statute
enables
any
person,
irrespective of religion he professes, to take
a child in adoption but such adoption has to
be made in accordance with the procedure
prescribed
under
Rules
etc.,
framed
thereunder. It is not the case of petitioner
that he was adopted by Late Mohd.
Jalaluddin by following the procedure laid
down under Act, 2000 and, therefore, the
same has no application to the case in hand.

9. Even otherwise, it is not
disputed before this Court that in Muslim
Law, scriptures do not recognize adoption.
In Shabnam Hashmi v. Union of India
(supra), an attempt was made to seek a
declaration from Supreme Court that right
to adopt and to be adopted be declared a
Fundamental Right under Part-III of
Constitution but declining this relief, Court
said:

"... elevation of the right to adopt
or to be adopted to the status of a
Fundamental Right, in our considered view,
will have to await a dissipation of the
conflicting thought processes in this sphere
of practices and belief prevailing in the
country."

10. Court further said:

"... the present is not an
appropriate time and stage where the right
to adopt and the right to be adopted can be
raised to the status of a fundamental right
and/or to understand such a right to be
encompassed
by Article
21
of
the
Constitution."

11. Then Court declined to make
such
a
declaration,
hence
aforesaid
judgment does not help petitioner in any
manner and reliance placed thereon is
totally misconceived.

12. The aspect of application of
adoption in Islamic law came to be
considered
in
Supreme
Court
of
Democratic Socialist Republic of Sri Lanka
in Ghouse v. Grouse, (1988) (1) SLR (25).
Referring to Tyabji on Muslim Law (4th
Ed.) page 208-209, para 228, it was
290 INDIAN LAW REPORTS ALLAHABAD SERIES
observed, "Adoption is not known to
Muslim Law".

13. Similarly, Mulla's Principles
of Mohammedan Law (17th Ed., page 328)
states categorically that Mohamedan Law
does not recognise adoption.

14. Louis Neil in his book "The
Mohammedan Law of Ceylon showing the
Principles and Rules of the Distribution of
Inheritance"
says,
"Adoption
is
not
recognised as conferring any right on the
children adopted."

15. In Umar Khan v. Niaz-UdDin Khan, (1911) 39 IA 19, it was observed
that under general Mohamedan law, an
adoption cannot be made. An adopted son
has no right of inheritance since the
principle of 'Muslim Law' based on the
Quoran, is that one must be a consanguine
relative of the deceased to become entitled
to inherit the property of the deceased;
there should be actual or natural parentage,
not legal parentage over other people's
children in order to found a claim for
inheritance under the Muslim Law."

18. Notwithstanding these remarks,
this Court may emphasize again that time
has arrived when the legislature must step
in and free the individual of disabilities
arising from personal laws to realize his/
her higher rights as a human being,
particularly, what could be a facet of a
fundamental right. After all, it is the duty of
the State to extend to all persons equal
protection of law. As the law stands,
particularly, the declaration of it by the
Supreme Court in Shabnam Hashmi and
by this Court in Mohd. Arshad Jamal, it is
difficult for this Court to interfere at this
stage of time with the impugned order and
hold for the petitioner.

19. Of course, if the petitioner by
virtue of being the deceased's brother's son
falls into any class of heirs, entitled to
inherit from the deceased Smt. Gulenoor
Khatoon, it would be open to the petitioner
to establish his right in that behalf by suit
before a Court of competent jurisdiction
arraying the other heirs who could also
claim. So far as the impugned order is
concerned, this Court is of opinion that
there is no infirmity there.

20. This petition fails and is
dismissed subject to the above remarks.

21. There shall be no order as to costs.
----------
(2024) 2 ILRA 290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2023
BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 13871 of 2023

Imtayaz Ahmad Ansari ...Petitioner
Versus
Power Corporation Ltd. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Sanjay Pathak, Sri Siddharth Khare, Sri
Himanshu Singh, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
Sri Adarsh Bhushan, Sri Devesh Vikram

A. Service Law - UP Power Corporation
Limited Employees (Discipline and Appeal)
Regulations,
2020
-
Reg.
4(1)
-
Suspension - Discretion of appointing
authority, extent of - Suspension order
was passed on the direction of Higher
authority - No application of mind by the
appointing authority - Effect - Held,
entire order does not reflect that there is
even little application of mind on the part
of the Superintending Engineer therefore,