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2017 DIGILAW 1210 (GAU)

Sarvangi Vikas Trust v. State of Assam

2017-08-31

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. M Biswas, the learned counsel for the petitioner and Mr. D Doley, learned Government Advocate appearing on behalf of the respondent. 2. In this revision petition, the order dated 11.06.2013 passed in Misc. (Adoption) 44/2012 by the court of learned District Judge, Bongaigaon is challenged. 3. The present petitioner filed an application under Section 41(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as ‘the Act, 2000’) seeking permission to give a child in adoption. The present petitioner represented by its Secretary, is a Specialised Adoption Agency (for short, ‘SAA’) established under Section 41(4) of the Act, 2000 vide Notification No. SCPC (G)/02/2011/96 dated 26.12.2011, issued by State Child Protection Society, Assam vide Regd. No. BONG/252/C/53 OF 2006, recognised by State Child Protection Society, Assam and having its office at B.T. Road, Bongaigaon, Assam. The petitioner is the home of orphan, abandoned and surrendered children for care and protection of children. A couple, namely, Sri Kamakhya Baruah and his wife Smti. Pinu Baruah, resident of Abhayapuri, Dist – Bongaigaon, Assam, applied for adoption of a male child, namely, Rintu Baruah who had been surrendered by his biological mother, Smti. Tara Das, the respondent No. 2 for social reasons by executing a deed of surrender. The said child was declared as legally free for adoption by the Child Welfare Committee (C.W.C.), Bongaigaon vide order dated 04.07.2012. Thereafter, an enquiry was conducted to the satisfaction of all concerned with regard to occupation, residence, married, birth, income etc. and a home study was conducted on them and the said couple were found to be educated and physically, mentally, economically and socially fit for adopting the said child, Rintu Baruah. 4. After fulfilling the requisite criteria prescribed by the Act, 2000 and its rules, a joint application was filed under Section 41 of the Act, 2000 by the present petitioner seeking permission to give the child on adoption before the court of learned District Judge, Bongaigaon which has been registered as Misc. (Adoption) Case No. 44/2012 with a prayer to give the male child namely Rintu Baruah on adoption to Sri Kamakhya Baruah and his wife Smti. Pinu Baruah as their own son for betterment of the child mentally, physically and socially. The said application was rejected vide the impugned order dated 11.06.2013. (Adoption) Case No. 44/2012 with a prayer to give the male child namely Rintu Baruah on adoption to Sri Kamakhya Baruah and his wife Smti. Pinu Baruah as their own son for betterment of the child mentally, physically and socially. The said application was rejected vide the impugned order dated 11.06.2013. While rejecting the said application, the learned court below considered the statement recorded by the learned court below of the biological mother of the child. As per her statement, Tara Das, the biological mother was married to one Ganesh Das about 19/20 years back. As a result of their conjugal life, 4 (four) children, two sons and two daughters were born. About 5/7 years back her husband died where after she has been maintaining and looking after her children by doing work here and there. There was no physical relationship with any other person after the death of her husband. About 4/5 months back, she gave birth to a child (male) at Abhayapuri hospital. She further stated that the father of the said child was Ganesh Das. She admitted that she handed over her said son to the nurse of Abhayapuri hospital as because she was not in a position to maintain her child and since birth, her child has been looked after by the said nurse. From the said statement, the learned court below held that Ganesh Das, the late husband of the biological mother was the father of her new born child inasmuch as she had no illicit relationship with any other person. Further the learned court below came to the finding that as apparent from the deed of surrender, it revealed that the father of said Tara Das has been shown as Rasik Das. However, the said Tara Das at the time of recording her statement stated that Late Buturam Das was her father. She denied that she is aware of any person named Rasik Das. Considering the said statement, the learned court below finally held that the lady claimed to be Tara Das appeared before the court is not the biological mother of the surrendered child. 5. From the findings of the court below, the court suspected with regard to the death of Ganesh Das, the husband of Tara Das and with regard to the identity of Tara Das. It is seen from the petition filed before the learned court below in Misc. 5. From the findings of the court below, the court suspected with regard to the death of Ganesh Das, the husband of Tara Das and with regard to the identity of Tara Das. It is seen from the petition filed before the learned court below in Misc. (Adoption) Case No. 44/2012 that Smti. Pinu Barman Baruah, the wife of Kamakhya Baruah, is by profession a GNM at Abhayapuri CHC. The said Smti. Pinu Barman Baruah accepted the child from Tara Das and she is fully aware with respect to the physical identity of Tara Das. It is also admitted that the child was born in the Abhayapuri CHC inasmuch as Tara Das stated so before the District Judge. The cause for abandoning the said child as per the petition was due to ‘non-consensual relationship’ and in such a situation in order to avoid social stigma on the said lady i.e. Tara Das, it is not at all disbelievable that in order to protect her own family the name of the father has been recorded as Late Rasik Das. The only point in the opinion of this court, the learned court below ought to have considered as to whether Ganesh Das, the husband of the said Tara Das was living at the time of birth of the child. Instead of disallowing the said petition instantly, the learned court below ought to have made an enquiry with regard to the existence of Ganesh Das at the time of birth of the child or the said Ganesh Das had died prior to that. 6. Mr. Biswas submits that the petitioner society has enquired with respect to the status of the said couple under whose custody the child is presently residing and found to be satisfying one. The said satisfaction is also drawn by this court considering their social status. Accordingly, the order passed by the learned District Judge dated 11.06.2013 in Misc. (Adoption) Case No. 44/2012 is set aside and remanded back to the learned court below with a direction to verify where Ganesh Das had died prior to 5/7 years from the date of birth of the child or he was living at the time of birth of the child. Thereafter, learned court below will pass necessary orders within the ambit and scope as per law. 7. Thereafter, learned court below will pass necessary orders within the ambit and scope as per law. 7. Considering the peculiarity of the matter, the learned District Judge, Bongaigaon shall make an endeavour to dispose of the said application within a period of 2 (two) months from the date of receipt of the certified copy of this order. This revision petition is accordingly disposed of.