I.A.(Civil)/342/2026 of ABDUL KADER Vs THE UNION OF INDIA AND 5 ORS on 16 August 2026

ORDER

Date : 17.08.2026 (K.R. Surana, J) Heard Mr. B.K. Sen, learned legal aid counsel for the applicant. Also heard Mr. H. Das, learned CGC; Ms. A. Verma, learned standing counsel for the FT and Border matters; Mr. G. Sarma, learned standing counsel for the NRC; Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned

Additional Senior Govt. Advocate for the State respondent.

2. By filing this interlocutory application under section 5 of the Limitation Act, the applicant, who is the petitioner in the accompanying unnumbered Review Pet. No. 357/2026, has prayed for condoning the delay of 4191 days beyond the period of limitation in filing the connected review petition.

3. It has been stated in the interlocutory application that the petitioner is residing in a remote village in Nagaon district and was never informed of the dismissal of W.A. No. 144/2014 by judgment and order dated 16.06.2014, thereby affirming the judgment and order dated 20.04.2014, passed by this Court in WP(C) 78/2009.

4. The case of the applicant is that he has recently discovered some vital documents which could not be brought in the written statement filed before the learned Foreigners Tribunal, Hojai, Sankardev Nagar in FT Case No. FT/H/722/2007. Accordingly, it is projected that the applicant seeks to now clarify that he was adopted by late Abdus Samad on 05.02.1962, from his biological father, namely, Md. Kala Mian, also referred as Kalu Mia, son of Falu Mia. It is the further case of the applicant that he has discovered a School Transfer Certificate dated 31.12.1992, issued by the Headmaster of Tarkata Muktab School, Shaharan, Nagaon, which reveals his date of birth as 01.10.1959, which according to the applicant, proves that he was born in Assam before the cut-off date of 25.03.1971.

5. The learned counsel for the applicant has made his submissions in support of the prayer for condoning the delay. The said prayer is opposed by the learned standing counsel for the FT and Border matters.

6. In this case, the Court has noticed the admission made in paragraph-2

of this application that on dismissal of the proceedings of W.A. No. 144/2014 by judgment and order dated 16.06.2014, the same was intimated to the applicant. Thus, the exercise of due diligence by the applicant is found lacking in this case as the applicant has accepted the declaration of him to be a foreigner by opinion dated 19.09.2008, passed by the learned Member, Foreigners Tribunal, Hojai at Sankardev Nagar in Case No. FT/H/722/2007. Therefore, the applicant has woken up after 18 (eighteen) years from the date of opinion and 12 (twelve) years from the date of judgment in W.A. 144/2014 to find out and to discover the School Certificate and the document of alleged adoption.

7. The challenge before this Court was negated by judgment and order dated 20.02.2014, passed in WP(C) 78/2009, which was affirmed by the Division Bench of this Court by judgment and order dated 16.06.2014, passed in W.A. 144/2014. Therefore, the applicant has failed to show that he has exercised due diligence, which was required to be exercised by the applicant once he was declared to be a foreigner by opinion dated 19.09.2008.

8. Before parting with the records, the Court would like to put on record that it is well settled that as the connected review application has not been taken up, the merit of the matter ought not to be gone into, but from the facts and circumstances, which the Court has noticed from the record, it would be appropriate to give a background in which the writ petition as well as the writ appeal was decided.

9. In paragraph-3 of the judgment and order dated 20.02.2014, passed in WP(C) 78/2009, this Court has categorically recorded that after the disposal of the reference before the learned Tribunal, the applicant had filed an application before the learned Foreigners Tribunal, seeking review of the opinion dated 19.09.2008, wherein the applicant had projected that his father's name is changed from Abdus Samad to Md. Kala Mian. The learned Tribunal took note of the same and found no ground to warrant review of the opinion, and accordingly, the order dated 17.12.2008, passed by the learned Foreigners Tribunal in the Review Petition as well as the opinion dated 19.09.2008 were both assailed by the petitioner by filing WP(C) 78/2009.

10. A totally different story was made out by the applicant in the intra- court appeal, registered as W.A. No. 144/2014.

11. In paragraph-2 of the order dated 16.06.2014, passed in W.A. 144/2014, the Division Bench of this Court, among others, had recorded the following: “….. The appellant in that regard has also led evidence. In the evidence, it has, however, come out that Abdus Samad is not the father of the appellant but the father-in-law. The appellant has proved the voters list in respect of Abdus Samad only and not of his father. No step was also taken by the appellant, at any point of time, to amend the pleadings of the written statement to the affect that Abdus Samad was not his father but his father-in-law, as pleaded. The appellant, for the first time in the writ petition filed, has contended that Abdus Samad is not his father but his father-in-law and his father’s name is Md. Kala Mian. Such pleading, as noticed above, was not taken in the written statement nor any evidence was produced. No document to prove that Md. Kala Mian is an Indian national has also been proved.”

12. Therefore, it appears that in a departure from the pleadings made in the review petition filed before the learned Tribunal, the applicant has changed his stand in this review petition that not Md. Kala Mian, but Abdus Samad was his father. However, in connection with the writ appeal, i.e. W.A. No. 144/2014, the stand of the applicant is that Abdus Samad is not his father, but father-in- law.

13. In so far as the plea of adoption is concerned, the same would be a reiteration of the stand taken in the review petition filed before the learned Tribunal. Therefore, once the matter has been agitated and decided in WP(C) No. 78/2009 and in W.A. No. 144/2014, again a review application on the same ground, while taking a contradictory plea in the writ appeal is misconceived. But this is only one aspect of the matter.

14. Another connected legal issue is involved in the said plea. As per the position under the Muslim Personal Law, the traditional Muslim Personal Law does not recognize adoption in the same sense as Hindu Law or statutory adoption. An adopted child, merely by reason of an adoption-like arrangement under the Muslim Personal Law, does not acquire the same legal status as a biological child. On the contrary, Islamic Law recognizes the concept of "Kafala", under which a person may undertake the care, upbringing, and financial support of a child, while the child's biological lineage is maintained. Therefore, the exercise of the concept of “Kafala” does not ordinarily make a child an automatic legal heir of the person undertaking the care.

15. The Court finds that the Supreme Court of India in the case of Shabnam Hashmi v. the Union of India, (2014) 4 SCC 1 : AIR 2014 SC 1281, has held that Muslim Personal Law does not recognize adoption in the conventional legal sense. Nonetheless, it was held that this does not prevent a Muslim from availing himself or herself of the secular statutory route to adoption. Accordingly, the statutory adoption mechanism is an option, enabling framework available irrespective of religion. Thus, adoption can be done under the Juvenile Justice (Care and Protection of Children) Act, 2015.

16. Therefore, the entertaining of the review application on the ground of adoption itself is contrary to the law well settled by the Supreme Court of India, as referred to above.

17. The Court again reiterates that the Court has not entered into the merits of the review petition, but has also referred to the legal position regarding the stand of adoption sought to be raised by the applicant in the connected review petition as the stand of the applicant is found to be changing every time as already referred to above.

18. Without entering into the merits of the review petition, the Court is melined to hold that in view of the discussion made in paragraph nos.3 to 7 above as well as the oscilating stand of the applicant, the applicant has not been able to make out a case for condoning the delay and laches of 4191 days beyond the period of limitation in filing the connected unnumbered review petition.

19. Accordingly, the application for condoning the delay stands dismissed. Consequently, the unregistered Review Pet. No. 357/2026 is also dismissed.

20. As the applicant has approached this Court through legal aid counsel, the Court refrains from imposing exemplary costs.

JUDGE JUDGE Comparing Assistant