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Madhya Pradesh High Court · body

2009 DIGILAW 554 (MP)

SANJAY MEHTA v. SUPRENTENDENT OF MATRACHHAYA

2009-04-28

N.K.MODY

body2009
Judgment ( 1. ) BEING aggrieved by the order dated 08/01/08 passed by sessions Judge, Indore in Case No. O/07 whereby the application filed by the petitioners U/s 41 of Juvenile Justice Board Act was returned to the petitioners to file the same before the Competent Court, the present petition has been filed. ( 2. ) SHORT facts of the case are that the petitioners and respondent filed a joint petition. U/s 41 of Juvenile Justice (Care and Protection of Child) Act, 2000 (which shall be referred hereinafter as an Act) before the learned Court below alleging that the respondent is an institution which takes care of orphan children. It was alleged in the petition that infant Vaidehi aged three years be given in adoption to the petitioners. In the petition it was also alleged that the petitioners moved an application U/s 41 of the Act before the Juvenile Justice Board, Indore but the same was returned vide order dated 09/08/07 alleging that the Juvenile Justice board was empowered to entertain the appliction u / s 41 (3.) of the Act but Section 41 (3) of the Act has been amended and after coming into force of the amendment the Juvenile Justice Board is having no jurisdiction to entertain such kind of application. In the petition it was prayed that appropriate orders be passed for giving the infant Vaidehi in adoption to the petitioners. This petition was filed on 12/10/07. After keeping the said petition pending for a period of more than three months vide order dated 08/01/08 the learned District Judge returned the same holding that since there are no parents of the infant, therefore, U/s 9of the Hindu adoption and Maintenance Act, 1956 respondent being a guardian is entitled to give Vaidehi in adoption. It was further held that under the provisions of Hindu adoption and Maintenance Act; 1956 District Court is competent to entertain such type of applications but as per Explanation-G of Section 6 of Family Court act the jurisdiction of Civil Court is barred and the jurisdiction is given as per section 7 of the Family Court Act, therefore, the petition was returned to the petitioners to move the same before the appropriate Court, against which the present petition has been filed. ( 3. ) MR. ( 3. ) MR. MUKESH Sinjonia, learned counsel for petitioners argued at length and submits that for taking the infant Vaidehi in adoption petitioners are running from pillar to post and no appropriate order has been passed by any Court on the petition filed by the petitioners. It is submitted that the petition filed by the petitioners be allowed and the petitioners be permitted to take Vaidehi in adoption. ( 4. ) SUPERINTENDENT of the respondent which appears to be a non government organization is present in Court and submits that initially the application was filed before the Juvenile Justice Board, Indore on 08/08/07 but inspite of lapse of more than 15 months no appropriate order, could be passed on the joint petition filed by both the parties. It is submitted that since there was no proper arrangement to keep a young baby of two years in the respondents institution, therefore, after being satisfied that the petitioners are genuine and intends to adopt Vaidehi the. custody of the child has been given to the petitioners by the respondent upon supurdgi. It is prayed that the petition filed by the petitionirs be allowed and the respondent be directed to give Vaidehi infant in adoption. ( 5. ) IN exercise of powers conferred by Section 68 of Juvenile Justice Act, 2000 the State of Madhya Pradesh has framed the rules which are known as Madhya pradesh Juvenile Justice (Care and Protection of Children) Rules, 2003 (which shall be referred hereinafter as an Act ). Chapter IX deals with Rehabilitation and Social Reintegration. Rule 78 of the Rules deals with the adoption, according to which the family is the best option to provide care and protection for children, adoption shall be the first alternative for rehabilitation and social reintegration of children who are orphaned, abandoned, neglected and abused. ( 6. ) THE Juvenile Justice (Care and Protection of Children) Act, 2000 came in force w. e. f. 1st April 2001. Prior to it Juvenile Justice Act, 1986 was in force which was repealed by the Act of 2000. In the Actof 2000 Section 41 was inserted, according to which primary responsibility to care for child shall be that of his family. Vide amendment Act No. 33/06 Sub Section (2) to (6) were inserted. Prior to it Juvenile Justice Act, 1986 was in force which was repealed by the Act of 2000. In the Actof 2000 Section 41 was inserted, according to which primary responsibility to care for child shall be that of his family. Vide amendment Act No. 33/06 Sub Section (2) to (6) were inserted. As per Sub Section (2) adopted shall be resorted for the rehabilitation of the children who are orphan, abandoned or surrender through such mechanism as may be prescribed. As per Sub Section (3) of Section 41 of the Act, the Board was empowerd to give children in adoption, which was further amended and it was enacted that children may be given in adoption by the Court after satisfying itself regarding investigation having been carried out as are required for giving such children in adoption. After drastic amendments in the Juvenile Justice Act 2000 in exercise of powers conferred by proviso to sub section (1) of Section 68 of the juvenile Justice Act, 2000, Juvenile Justice (Care and Protection of Children)Rules 2007 came into force which repealed the Juvenile Justice (Care and protection of Children) Rules 2000. ( 7. ) CHAPTER-5 of the Rules deals with Rehabilitation and Social Reintegration. Rule 32 lays down that primary aim of rehabilitation and social reintegration is to help children in restoring their dignity and self worth and mainstream them through alternate care programmes and long terms institutional care shall be of last resort. 13. Rule 33 deals with the adoption which lays down primary aim of adoption is to provide a child who cannot be cared for by his biological parents with a permanent substitute family. ( 8. ) SUB Rule (3) of Rule 33 deals with the procedure which will apply in the case of orphaned and abandoned children. Sub Rule (5) of Rule 33 lays down that for the purpose of Section 41 of the Act, "court implies a Civil Court, which has jurisdiction in the matters of adoption and guardianship and may include the Court of the District Judge, Family Courts and City Civil Court. ( 9. ) SECTION-7 of the Family Courts Act, 1984 deals with the jurisdiction of a Family Court. ( 9. ) SECTION-7 of the Family Courts Act, 1984 deals with the jurisdiction of a Family Court. As per sub-section I of Section 7 of the Act the family Court shall have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation. As per explanation (g) of sub-section I of Section 7, the suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. ( 10. ) FROM bare perusal of the aforesaid provision it is clear that explanation (g) of sub-section I of section 7 of the Family Courts Act includes the proceedings in relation to the guardianship of the person or the custody of or access to any minor, but it does not include the proceedings relating to adoption. Similarly as per sub-rule 3 of rule 33 of Juvenile Justice Rules 2007, it is evident that for the purpose of sub-section 3 of section41 Court implies a Civil Court which has jurisdiction in the matter of adoption. ( 11. ) IN view of the aforesaid position of law, this Court is of the view that the learned Trial Court committed error in dismissing the petition filed by the petitioner on the ground that learned Court below was having no jurisdiction to entertain the petition in view of the explanation (g) of Section 7 of the Family Courts Act. ( 12. ) PETITIONERS who are the. husband and wife are present in Court along with vaidehi whom the petitioners proposed to take in adoption. Superintendent of the institution Matrachhaya, a non-government organization is also present. After going through the record, this Court is of the view that the petitioners fulfilled all the requirements which are necessary under the law for taking Vaidehi in adoption. However, since the jurisdiction is vested with the learned Court below, the petition filed by the petitioners is allowed and the impugned order passed by the learned court below is set aside and the case is remanded back to the Court below with a direction to the parties to remain present before the learned Court below on 10/05/2009, who shall pass the final order after observing the formalities within two weeks positively. With the aforesaid observations, petition stands disposed of. Petition disposed of.