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2011 DIGILAW 1314 (CAL)

Sankar Sudha Pal v. .

2011-09-22

HARISH TANDAN

body2011
Judgment : HARISH TANDON, J. This revisional application is directed against order no. 10 dated 2.2.2007 passed by the learned District Judge, Hooghly in Act VIII Case No. 33 of 2005 by which an application seeking permission to adopt the minor child was rejected. The petitioner is a Hindu by religion and was married on 6.12.1994 but unfortunately did not have any issue from the said wedlock. The petitioner is well placed in the life and is employed under the Railway and is residing in the district of Hooghly. After hearing the news that an abandoned child is kept in the custody of the officer in-charge of Polba police station, the petitioner along with his wife approached the said officer who handed over the said abandoned child for proper nourishment. The petitioner thereafter took out an application under section 7 and 10 of the Guardians and Wards Act 1890 before the district Judge, Hooghly which was registered as Act XIII Case No. 37 of 2002. The District Judge allowed the said application, on 19.1.2004, by appointing the petitioner as certificate guardian subject to furnishing a security bond of Rs. 2000/-. The petitioner was further directed to produce the minor child as and when called for. Thereafter the petitioner filed an application under section 9 of the Hindu Adoptions and Maintenance Act 1956 for permission to adopt the said child. By impugned order the District Judge, Hooghly rejected the said application on the ground that the abandoned child is a neglected juvenile and the parentage is not known. It was further observed that the appropriate authority to grant permission is juvenile board constituted under the Juvenile Justice act 1986. Having assailed the said order it is contended on behalf of the petitioner that the petitioner and his wife are Hindu by religion and the abandoned child is presumably also Hindu by religion. Section 9 of the Hindu Adoptions and Maintenance Act 1956 confers power on the court to grant permission to the certificate guardian to give adoption to any person including himself. It would be profitable to quote section 9 of the said Act which reads thus : “9. Persons capable of giving in adoption. – (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption. It would be profitable to quote section 9 of the said Act which reads thus : “9. Persons capable of giving in adoption. – (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption. (2) Subject to the provisions of sub-section (3) and sub-section (4) the father, if alive, shall alone have right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. (3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. (4) Where both the father and mother 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 now known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself. (5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.” Explanation II appended to section 9 defines the court to mean City Civil Court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides. There is no ambiguity in holding that the court can grant permission for adoption of the abandoned child whose parentage is not known, to any person including the guardian himself. There is no ambiguity in holding that the court can grant permission for adoption of the abandoned child whose parentage is not known, to any person including the guardian himself. The restrictive meaning attributed to the word “guardian” to include only the natural guardian and not the certificate guardian, would render the provision negatory and otiose. Had it been a case that the abandoned child is merely given in custody then a juvenile board would be treated as the guardian for such purposes and the board has to apply for permission under section 9 of the Hindu Adoptions and Maintenance Act 1956. The certificate guardian is competent to maintain an application under section 9 of the said Act seeking permission for adoption of an abandoned child or a child whose parentage is unknown to adopt the said child to himself. The permission can only be granted by the court upon reasonable satisfaction about the welfare of the child as envisaged under section 9 (5) of the said Act. The District Judge without adverting to such satisfaction has rejected the said application on preliminary ground that the application at the instance of the certificate guardian is not maintainable. I, therefore, set aside the impugned order. The revisional application is, thus, allowed. The court below is directed to reconsider the said application on merit after recording his satisfaction in terms of section 9 (5) of the Hindu adoptions and Maintenance Act 1956. The court below shall make all endeavour to dispose of the said application as expeditiously as possible preferably within three weeks from the date of the communication of this order.