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2019 DIGILAW 2764 (ALL)

Amit Singh v. Union Of India

2019-12-12

PANKAJ MITHAL, VIPIN CHANDRA DIXIT

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JUDGMENT : 1. Heard Sri Amitabh Agrawal, learned counsel for the petitioner and Sri Sandeep Kumar Srivastava for the Union of India. 2. The petitioner and his wife Smt. Shalu are both residents of Bangalore. 3. The petitioner has preferred this writ petition seeking certain direction upon respondent no. 2 to complete the process of adoption of the son adopted by the petitioner and his wife. 4. The petitioner alleges that the court of Child Welfare Committee, Varanasi constituted under The Juvenile Justice (Care and Protection of Children Act, 2000 (in short Juvenile Act) vide order dated 22.7.2013 permitted adoption of a two year two months old child Kabir Kuntal @ Nirmal who was under the care and guardianship of Matrichaya Shishu Grih, Varanasi. Consequent to the aforesaid permission the child was adopted by the petitioner and his wife on 25.7.2013 and ever since then he is under their care and they are acting as the adoptive family of the said child. However, the process of adoption of the said child could not be completed as subsequently the office bearers of respondent no. 5 declined to co-operate. The complaints or applications made by the petitioner to the Central Adoption Resource Authority, Specialized Adoption Agency constituted under the Juvenile Act have fallen to deaf ears. 5. In order to issue any direction for completion of process of adoption of the aforesaid child, it would be prudent on our part to examine the process of adoption contemplated under The Hindu Adoption and Maintenance Act, 1956 (in short Adoption Act) which is a substantive law on the subject. 6. It is worth mentioning herein that we presume that the child under adoption is a Hindu, in as much as, the petitioner and his wife are Hindus. He was living in an orphanage at Varanasi and there are no pleadings to the effect that he is of another religion and not a Hindu. 7. The aforesaid Adoption Act vide section 6 provides for the requisites of valid adoption and inter-alia vide Section 7 and 8 provides for the capacity of male and female Hindu to take a child in adoption. Section 9 of the Adoption Act is more relevant for our purpose. 7. The aforesaid Adoption Act vide section 6 provides for the requisites of valid adoption and inter-alia vide Section 7 and 8 provides for the capacity of male and female Hindu to take a child in adoption. Section 9 of the Adoption Act is more relevant for our purpose. It contemplates that where both the father and mother of a child are dead or have completely and finally renounced the world or has abundant the child or have been declared by the court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption but with the previous permission of the court. 8. For the sake of convenience the relevant Sub-Section (4) of Section 9 of the Adoption Act is reproduced herein below:- "(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)............................. (3)............................. (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 or the child is not 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).............................." 9. A reading of the aforesaid provision makes it clear that where a child has been abandoned by both the father and mother or where the parentage of the child is not known, the guardian is obliged to obtain permission of the court for giving the child in adoption. 10. In the instant case in the absence of any pleadings regarding the parentage of the child in question, as the child was in an orphanage it would be deemed that he has been abandoned both by his father and mother or that his parentage is not known. In view of the above, the guardian of the child ie. orphanage in whose care the said child was living was obliged to obtain permission of the court to give him in adoption. 11. In view of the above, the guardian of the child ie. orphanage in whose care the said child was living was obliged to obtain permission of the court to give him in adoption. 11. It may be fruitful to mention here that the 'guardian' referred to in sub-section (4) of Section 9 of the Adoption Act vide the explanation attached to the aforesaid provision means a person having the care of the person of a child or of both his person and property. Therefore, as the child was in care of the orphanage at Varanasi, the said orphanage would be deemed to be the guardian of the said child and would not be entitle to give the child in adoption without the permission of the court as mandated under sub-section (4) of Section 9 of the Adoption Act. 12. In the case at hand admittedly the said guardian/respondent no. 5 never applied for any permission of the court to give the said child in adoption to the petitioner and his wife. On the contrary, an application filed by the petitioner himself seeking permission of the court to adopt the child stands dismissed for want of prosecution which order has attained finality. 13. In view of the above, there is no permission of the court as contemplated vide section 9 (4) of the Adoption Act to give the aforesaid child in adoption. Accordingly, in the absence of such a permission, the process of adoption of the aforesaid child by the petitioner can not be completed. 14. The Juvenile Act is a law relating to juveniles in conflicts with law and children in need of care and protection. It does not have general application to all kinds of children. 15. Chapter IV of the Juvenile Act provides for the rehabilitation and social integration of a child including adoption. 16. Section 41 of the Juvenile Act deals with adoption and reads as under:- "41. Adoption:- (1) The primary responsibility for providing care and protection to children shall be that of his family. (2) Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered through such mechanism as may be prescribed. 16. Section 41 of the Juvenile Act deals with adoption and reads as under:- "41. Adoption:- (1) The primary responsibility for providing care and protection to children shall be that of his family. (2) Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered through such mechanism as may be prescribed. (3) In keeping with the provisions of the various guidelines for adoption issued from time to time, by the State Government, or the Central Adoption Resource Agency and notified by the Central Government, children may be given in adoption by a court after satisfying itself regarding the investigations having been carried out as are required for giving such children in adoption. (4) The State Government shall recognize one or more of its institutions or voluntary organizations in each district as specialized adoption agencies in such manner as may be prescribed for the placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified under sub-section (3). Provided that the children's homes and the institutions run by the State Government or a voluntary organization for children in need of care and protection, who are orphan, abandoned or surrendered, shall ensure that these children are declared free for adoption by the Committee and all such cases shall be referred to the adoption agency in that district for placement of such children in adoption in accordance with the guidelines notified under sub-section 3. (5) No child shall be offered for adoption- (a) until two members of the Committee declare the child legally free for placement in the case of abandoned children, (b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and (c) without his consent in the case of a child who can understand and express his consent. (6) the Court may allow a child to be given in adoption:- (a) to a person irrespective of marital status or; (b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters; or (c) to childless couples." 17. (6) the Court may allow a child to be given in adoption:- (a) to a person irrespective of marital status or; (b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters; or (c) to childless couples." 17. The aforesaid provision clearly stipulates that for the purposes of adoption as per the guidelines provided by the State Government or the Central Adoption Agency children may be given in adoption by the Court after satisfying itself regarding investigations carried out as required for giving a child in adoption and inter alia that no child can be offered for adoption until the Committee constituted for the purpose declare the child legally free for placement/adoption whereupon the court may allow the child to be given in adoption subject to the fulfilment of certain other conditions. 18. The aforesaid provision of adoption under Section 41 of the Juvenile act is in aid to the procedure laid down for adoption under the Adoption Act. It is not in conflict it and in no way overrides the provisions of the Adoption Act rather runs parallel to it. It in substance puts an additional obligation in the matter of adoption of a child to first have a declaration that the child is free for adoption by the Committee ie. Child Welfare Committee and then to follow the substantive process as provided under the Adoption Act. Therefore, in the present case as the child in question has been declared to be free for adoption by the court Child Welfare Committee Varanasi, the next step is to follow the procedure of sub-section (4) of Section 9 of the Adoption Act failing which the adoption would not be complete and valid. 19. Thus, in the instant case as the guardian of the child ie. the orphanage at Varanasi has not taken permission of the court to give the child in question in adoption to the petitioner and his wife, the process of adoption, if any, remains incomplete. 20. 19. Thus, in the instant case as the guardian of the child ie. the orphanage at Varanasi has not taken permission of the court to give the child in question in adoption to the petitioner and his wife, the process of adoption, if any, remains incomplete. 20. In view of the aforesaid facts and circumstances, we do not deem fit to issue any direction for completion of the aforesaid process of adoption of the child in question except to observe that the petitioner may approach the relevant authority so that necessary permission for giving the aforesaid child in adoption is given by the competent court for which purpose the Central Adoption Resource Authority is directed to take effective measures within its competence to help out the petitioner. 21. The writ petition is dismissed with the above observation.