Anil Kumar, S/o. Late Edakkanambeth v. Sep. Bikram Singh Bisht, S/o. Pratap Singh Bisht
2019-11-06
ANNIE JOHN, K.HARILAL
body2019
DigiLaw.ai
JUDGMENT : K.Harilal, J. 1. The petitioners are the husband and wife and they are the petitioners in OP 897/2015 on the file of the family court, Kannur. The aforesaid original petition was filed under sections 6, 7, 9, 10, 11 and 16 of the Hindu Adoptions and Maintenance Act, for an order recording the adoption deed No.142/14 of SRO, Thalassery, by order of the court. According to the petitioners, they have no biological child even after 14 years of their marriage and the second petitioner is incapable of giving birth to a child due to clinical reasons and she will not be able to conceive. The petitioners and respondents are Hindus by religion. The respondents were willing to give their 4th baby girl, by name Sreelakshmi, born on 21.8.2014 at Dhanalakshmi Hospital, Kannur, in adoption to the petitioners, as the respondents are already having three children, aged 14, 12 and 6 years respectively. The respondents have no sufficient means to look after the four children, whereas the petitioners have sufficient means and health to take the child in adoption and to maintain her. The respondents were also ready to give the child in adoption to the petitioners, without any consideration or offer of money. On the other hand, the paramount welfare of the child alone was taken into consideration by both the petitioners and the respondents. Accordingly, the respondents have given the said child, by name, Sreelakshmi, in adoption to the petitioners and petitioners have taken the child in adoption on 2.12.2014 and they have executed a deed of adoption on the same day and got it registered, as Document No. 142/14 of SRO, Thalassery. After the date of the said adoption deed, the child Sreelakshmi have all rights of an adopted daughter under law. But, when they approached the school authorities for getting admission to the child, they insisted that the adoption deed should be legally recognized by a court of law and then only the child can be admitted in school. After the deed of adoption, the respondents have ceased to have any legal right over the child as parents, except their status as natural parents. Ever since the adoption, the child has been living with the petitioners under their care and protection, as if she is their biological child.
After the deed of adoption, the respondents have ceased to have any legal right over the child as parents, except their status as natural parents. Ever since the adoption, the child has been living with the petitioners under their care and protection, as if she is their biological child. So, it is highly necessary to record and grant recognition to the registered deed of adoption executed by the petitioners and respondents, by the family court, to get legal validity and sanctity to the said adoption. 2. On receipt of notice, the second respondent alone appeared through counsel. Thereafter, both respondents were called absent and set ex-parte. The second petitioner has got herself examined as PW1 and Exts.A1 to A4 were marked. After considering the evidence on record, the family court returned the original petition on a finding that the family court has no jurisdiction to deal with the legality of the adoption of a child, under the provisions of the Hindu Adoptions and Maintenance Act and the District Court is the competent court to deal with the issue, as provided under section 9 (4), coupled with explanation 2 of the Act. The family court is competent to deal with the adoption matters, under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 only. The legality and correctness of the aforesaid finding are assailed in this original petition. 3. Heard the learned counsel for the petitioners. 4. The learned counsel for the petitioners advanced arguments exhaustively and contended that the family court has jurisdiction and power to grant legal validity and recognition, to the adoption deed. In order to fortify the said argument, the learned counsel for the petitioners invited our attention to the notification published in SRO 580/2015 issued by the Government of Kerala also and contended that as per the said notification, jurisdiction in respect of adoption is confined to the family court, in exercise of the powers conferred by section 41 of the Juvenile Justice (Care and Protection of Children) Act. 5. In view of the arguments at the bar, the questions to be considered are thus: (1) Whether the family court has jurisdiction and power to grant legal validity and recognition to an adoption under an adoption deed, invoking the provisions under the Family Court Act or any law for the time being in force?
5. In view of the arguments at the bar, the questions to be considered are thus: (1) Whether the family court has jurisdiction and power to grant legal validity and recognition to an adoption under an adoption deed, invoking the provisions under the Family Court Act or any law for the time being in force? (2) Whether the notification published in SRO 580/2015 issued by the Government of Kerala has granted jurisdiction and power to the family court to deal with the issues falling under the provisions of the Hindu Adoptions and Maintenance Act, 1956? 6. Admittedly, the parents, who are adoptive parents, are Hindu by religion and they are governed by the provisions of the Hindu Adoptions and Maintenance Act, 1956. The respondents are Sikh by religion for whom section 2(b) of the said Act is made applicable. The adoption is evidenced by deed of adoption, registered under Kannur SRO. 7. Coming to the 1st question, indisputably, the adoption in question, is governed by the Hindu Adoptions and Maintenance Act, 1956. Chapter 11 of the said Act, which contains sections 5 to 17, deals with the essential requirements of a valid adoption, under the Act. According to Explanation (ii) of section 9(4) of the Act, the court, which is competent to give permission to give the child in adoption, is city civil court or District Court, within the local limits of whose jurisdiction the child to be adopted ordinarily resides. So, it can be said that the city civil court or the District Court, are the competent courts, having jurisdiction to grant permission for an adoption. If that be so, no court other than the District Court can consider any question relating to the validity of an adoption, though it is not specifically mentioned in the Act. 8. Coming to the Family Court Act, we find that jurisdiction of the family court is governed by section 7(a) to (g) of the said Act. But, none of the said provisions confers jurisdiction to the family court to consider any question in respect of the matter of adoption. So also, adoption to be made by adoptive parents from the family of biological mother and father of the child does not arise out of the marital disputes falling under section 7 of the Family Court Act.
But, none of the said provisions confers jurisdiction to the family court to consider any question in respect of the matter of adoption. So also, adoption to be made by adoptive parents from the family of biological mother and father of the child does not arise out of the marital disputes falling under section 7 of the Family Court Act. Therefore, it can be safely concluded that the family court has no jurisdiction to make any declaration as to the legal validity of an adoption deed, in an original petition filed by the adoptive father and mother. 9. Coming to the 2nd question, it is well discernible from the notification SRO No.580/2015 that in exercise of the powers conferred by section 41 of the Juvenile Justice (Care and Protection of Children) Act, read with sub rule 5 of Rule 40 of the Rules made thereunder, twenty-eight family courts in Kerala are notified as specialized adoption courts for the purpose of Chapter 4 of the Juvenile Justice (Care and Protection of Children) Act. Chapter 4 of the aforesaid Act deals with rehabilitation and social reintegration of children. The rehabilitation and social re-integration are exclusively related to such children as are orphaned, abandoned, neglected and abused through institutional and non-institutional method. According to section 40 of the Juvenile Justice (Care and Protection of Children) Act, rehabilitation and social reintegration of a child shall begin during the stay of the child in a children's home or special home and the rehabilitation and social reintegration of the children shall be carried out alternatively by - 1. adoption, 2. foster care, 3. sponsorhip; and 4. for sending the child to an after care organisation. 10. So, we are of the opinion that adoption, by invocation of the provisions under the Hindu Adoptions and Maintenance Act, by giving the child in adoption by the father or mother or guardian to the adoptive father or mother does not fall under Chapter 4 of the Juvenile Justice (Care and Protection of Children) Act. It follows that under SRO 580/2015, the family court has no jurisdiction to determine the validity of an adoption made under the Hindu Adoptions and Maintenance Act, 1956. In short, the District Court is vested with the jurisdiction to make a declaration as to the legal validity of an adoption under the provisions of the Hindu Adoptions and Maintenance Act, 1956. 11.
In short, the District Court is vested with the jurisdiction to make a declaration as to the legal validity of an adoption under the provisions of the Hindu Adoptions and Maintenance Act, 1956. 11. Hence the family court is justified in returning the original petition. We do not find any reason to interfere with the impugned judgment. In the result, this O.P.(FC) is dismissed.