Shweta Gupta vs Rahul Keshav Jadhao & Anr on 4 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved A.F.R.

Court No. – 5

Case :- MISC. SINGLE No. – 15554 of 2017

Petitioner :- Shweta Gupta

Respondent :- Rahul Keshav Jadhao Anr

Counsel for Petitioner :- Rohit Tripathi,Ms. Bulbul Godiyal (Amicus)

Counsel for Respondent :- C.S.C,O.P. Nag

Hon’ble Devendra Kumar Upadhyaya,J.

These proceedings, under Article 226 of Constitution of India, have been instituted by the petitioner impeaching an order dated 03.07.2017 passed by the Special Judge (Prevention of Corruption), CBI Court no.5, Lucknow, whereby the application preferred by the petitioner under Section 9 of Hindu Adoptions and Maintenance Act, 1956 (for short ”Act,1956′) has been rejected and the learned court below has refused to accord its permission as required under Section 9 of the Act, 1956 to give petitioner’s minor child in adoption to respondent no.1, whom the petitioner has re-married following annulment of her first marriage with respondent no.3 vide judgment and decree dated 27.05.2015.

Heard Ms. Bulbul Godiyal, learned Senior Advocate, Amicus appointed by the Court, Sri Rohit Tripathi, learned counsel representing the petitioner and Sri O.P. Nag, learned counsel representing respondent no.1.

This Court while entertaining this petition passed an order on 17.07.2017 permitting impleadment of respondent no.3 and also directing issuance of notice to him. The Court further directed that respondent no.3 shall be served through dasti notices as well, apart from usual mode of service. The office accordingly issued notice and has submitted a report that the notice to respondent no.3 was issued on 21.07.2017 and was also booked by the post on 29.07.2017, however, unserved envelope has been received with remark of the postman, “refused to receive”.

Learned counsel for the petitioner has filed an affidavit of service stating therein that the petitioner’s father, after obtaining dasti notice from the registry, personally visited Puranpur, Pilibhit at the known address of respondent no.3, but could not meet anyone in the house and consequently he sent the notices through private courier service on 25.07.2017. In the affidavit dated 06.08.2017 filed by the petitioner, it has been stated that upon inquiry from the office of courier service, it was revealed that dasti notice sent by the petitioner was served on the respondent no.3 at his address and was actually received by one Ashok Kumar Gupta, father of respondent no.3. In these circumstances, respondent no.3 shall be deemed to have been sufficiently served, however, no one has put in appearance on his behalf.

The case at hand presents unique and peculiar facts where the petitioner who is the biological mother of a minor child, Master Lakshya, intends to give him in adoption to respondent no.1 whom she has married after judicial separation from her earlier husband-respondent no.3, who is the biological father of the minor.

In terms of the provisions contained in proviso appended to sub-section (2) of Section 9 of the Act,1956, in case father and mother of a child are alive, then both have equal right to give a son or daughter in adoption. However, such right of giving son or daughter in adoption is impermissible to be exercised by either of them without consent of the other, unless one of them has 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.

Faced with such stumbling block in giving the minor in adoption to respondent no.1, the petitioner has approached this Court by filing the instant petition for securing future and welfare of the minor.

After a prolonged litigation, the petitioner was judicially separated from her husband-respondent no.3 by a decree of divorce passed on 27.05.2015. The case canvassed on behalf of the petitioner is that the biological father of the child, i.e. her first husband, has no relationship with the child, who has not even seen him ever since he was born and in such a situation since the petitioner has re-married after divorce, her son’s welfare will be safe in case he is permitted to be adopted by respondent no.1.

It has been submitted by learned counsel for the petitioner that looking to the very complex situation which has emerged in the facts of the present case, strict construction of the proviso appended to sub-section (2) of Section 9 of the Act, 1956 does not permit the petitioner’s son to be given in adoption to respondent no.1 without the consent of his biological father, however, he has, thus, pleaded that since the legislation governing the field does not envisage adoption in a situation which the facts of the present case have presented, this Court can always fill the gap and provide for omission in the legislation.

Citing various judgments of Hon’ble Supreme Court and some other Hon’ble High Courts, it has been emphasized by learned counsel for the petitioner that in the matter of adoption of a minor, it is the interest, welfare and secured future of the child which is of paramount importance and as such the permission as prayed for by the petitioner for giving her son in adoption to respondent no.1 ought to be granted. He has, thus, contended that approach of learned court below while rejecting the application seeking leave/permission of the Court to give the minor in adoption appears to be somewhat pedantic, whereas it ought to have been constructive and tilting towards securing the welfare of the child.

Looking to the importance of the issue engaging attention of this Court in this case in the changing set up of the society, the Court had requested Ms Bulbul Godiyal, learned Senior Advocate to assist this Court as Amicus. She very courteously responded to call of the Court and has ably provided her assistance and has made her submissions on the basis of various pronouncements of Hon’ble Supreme Court and those of some other High Courts.

The petitioner had earlier married respondent no.3, their marriage having been solemnized on 15.06.2006 as per Hindu rites, customs and rituals. However, owing to unresolved and continuing differences between the petitioner and respondent no.3, both of them decided to get the marriage dissolved by mutual consent. A male child, Master Lakshya, was born out of the said wedlock on 17.09.2009. It is on record that Master Lakshya was born in the care and custody of the petitioner and her parents and further that respondent no.3-his biological father has not even seen him ever since his birth.

An application for dissolution of marriage was moved before the competent court under Section 13-B of Hindu Marriage Act, 1955 (for short ”Act, 1955′). The application moved for dissolution of marriage under Section 13-B of the Act, 1955 was a joint petition in which certain averments and admissions were made by respondent no.3 which are crucial to be noted by this Court for the purposes of arriving at a correct decision in this case.

In the petition moved under Section 13-B of the Act, 1955, it was specifically stated that it was agreed between the parties that Master Lakshya shall continue to remain in care and custody of petitioner and that respondent no.3 has not sought any relief in respect of the child and he shall also not seek right of visitation etc. An affidavit in the proceedings instituted under Section 13-B of the Act, 1955 was also filed by respondent no.3-Gaurav Gupta clearly stating therein that the child is being brought up in the care and guardianship of the petitioner and that respondent no.3 had not taken any steps ever either to seek custody of the child or to do any act for his welfare. The affidavit further stated that in such circumstances, it is the petitioner who shall rear the child from her own source of income or the source of income of her parents. In the affidavit, it was further stated by the respondent no.3 that it had been agreed between the parties that the child born out of the said wedlock shall always remain in care and protection of the petitioner and that respondent no.3 shall have no claim over the child, neither will he ever lay any such claim over the minor and that he will also not have right of visitation. The said affidavit is on record as annexure no.3 to the writ petition. Paragraphs 2 and 6 of the said affidavit are extracted hereunder:

“2. ;g fd mHk;i{kksa dk fookg fnukad 15-02-2006 dks gqvk gS rFkk mHk;i{k ds lalxZ ls fnukad 17-09-2008 dks iq ekLVj y{; mQZ d`”.k mRiUu gqvk tks fd izFke i{k dh vfHkj{kk o laj{kdrk esa iksf”kr gks jgk gS f}rh; i{k }kjk cPps dks izkIr djus ds fy, ;k mlds fgrkFkZ dksbZ Hkh dk;Z ugh fd;k x;k gSA ,slh n’kk esa izFke i{k gh mDr cPps dks vius gh vk; ds lzksrksa ls viuk vius ekrkfirk dh vk; ds lzksrksa ls ikyu iks”k.k djsxhA

6. ;g fd vkilh lgefr ds vk/kkj ij r;’kqnk /kujkf’k :Ik;k ukS yk[k f}rh; i{k }kjk izFke i{k dks vkthou fuokZg gsrq LFkk;h fuokZfgdk jkf’k iznku dh tk pqdh gS ftls izFke i{k us izkIr dj fy;k gS ,oa ;g Hkh lgefr }kjk r; dj fy;k x;k gS fd mHk; i{k ds lalxZ ls mRiUu iq mijksDr lnSo izFke i{k ds gh vfHkj{kk o laj{kdrk es jgsxk] f}rh; i{k dHkh Hkh fdlh izdkj dk nkok mDr iq ds lanHkZ esa ugha djsxk vkSj u gh mls mDr iq ls feyus dk vf/kdkj gksxkA”

In view of the aforesaid facts, what precipitates here is that respondent no.3 has not made any contribution towards upbringing of the child and that respondent no.3 is very clear in his mind that he will have no claim over the child and that it is the petitioner who shall always bear expenses in upbringing of the child and it is she in whose care and protection child shall remain. The affidavit filed before the court below in the proceedings under Section 13-B of the Act, 1955 by respondent no.3 also makes it clear that though he is the biological father of the minor, however, he will never lay or raise any claim regarding custody of Master Lakshya. He had also stated in the affidavit that he will not have even the right of visitation. In these circumstances, the conclusion is indefeasible that respondent no.3 has severed all his relations with minor Master Lakshya.

As observed above, the joint petition moved by the petitioner and respondent no.3 seeking divorce under Section 13-B of the Act, 1955 by mutual consent was allowed and the marriage was dissolved by the judgment and decree dated 27.05.2015 passed by the Principal Judge, Family Court, Lucknow.

After dissolution of marriage with respondent no.3, the petitioner feeling the need of a life partner and also keeping in view the paramount interest of her minor child decided to marry respondent no.1, who is an Engineering graduate from Indian Institute of Technology, Roorkee and is said to be presently gainfully employed in Australia, who is also likely to get permanent residency in Australia soon. The marriage of the petitioner with respondent no.1 was solemnized on 31.07.2016. It has also come on record that respondent no.3 is also a Hindu, born on 05.09.1975 and is a divorcée, his first marriage having been legally annulled. He does not have a child from his previous marriage. The petitioner, after her marriage with respondent no.1, intends to shift to Australia for obvious reasons and accordingly in order to take Master Lakshya along with her to Australia, a necessity was felt that Master Lakshya be formerly taken in adoption by respondent no.1.

It is in these circumstances that the application was moved by petitioner under Section 9 of the Act, 1956 seeking court’s leave/permission to give Master Lakshya in adoption to respondent no.1.

Learned court below has stated in the impugned order dated 03.07.2017 that since the putative father of Master Lakshya i.e. respondent no.3-Gaurav Gupta is alive and he has not renounced the world, neither has he ceased to be a Hindu and further that he has also not been declared to be a person of unsound mind by any court, as such in absence of consent of respondent no.3, permission sought by the petitioner for giving Master Lakshya in adoption cannot be granted.

Adoption amongst Hindus is regulated by the provisions of Chapter-II of the Act, 1956. Section 5 clearly prohibits any adoption except in accordance with the provisions contained in Chapter-II. Section 6 details the requisites of a valid adoption. Section 7 provides for as to the capacity of a male Hindu to take in adoption, according to which, any male Hindu of sound mind who is not a minor has the capacity to take a son or a daughter in adoption. It, however, provides that if such a Hindu has a wife living, adoption could not be permissible without the consent of his wife unless wife has renounced the world or has ceased to be a Hindu or has been declared a person of unsound mind by competent court. Similar provisions are contained in Section 8 which permit a female Hindu to take in adoption. Section 9, with which the Court in this case is confronted with, provides for the persons capable of giving in adoption. According to this provision except the father or mother or guardian of a child, no one else has the capacity to give the child in adoption. Sub-section (2) of Section 9 of Hindu Adoptions and Maintenance Act, 1956 is quoted hereunder:

“(2) Subject to the provisions of sub-section (3) and sub-section (4)], the father, if alive, shall alone have the 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”.

Sub-section (2) of Section 9 gives the father and mother equal right to give a son or daughter in adoption, however, it poses a caveat to such right of a father or mother, according to which this right of giving the child in adoption, cannot be exercised by either the father or the mother except with the consent of the other unless one of them has completely renounced the world or has ceased to be a Hindu or has been declared to be a person of unsound mind by a competent court.

Sub-section (4) of Section 9 provides for and permits the guardian of a child to give the child in adoption with previous permission of the court, to any person including the guardian himself, however, sub-section (4) of Section 9 also puts a caveat to the right of a guardian of a child to give in adoption, according to which, such a right of giving in adoption by the guardian of a child can be exercised only where both, father and the mother, are dead or have completely renounced the world or have abandoned the child or have been declared by the competent court to be persons of unsound mind or also in a situation where the parentage of the child is not known. Sub-section (5) however, puts a caution to be exercised by the court while dealing with a prayer seeking permission to give a minor in adoption. Under sub-section (5) of Section 9 of the Act, 1956, the court before giving such permission has to be satisfied that the adoption will be for the welfare of the child and for the said purpose, due consideration is required to be given to the wishes of the child having regard to his/her age and understanding. The court also needs to be satisfied that the person seeking permission under sub-section (4) has not received or agreed to receive any payment or reward in consideration of adoption and further that no person has made or given or agreed to make or give any payment or reward to the applicant seeking permission of the court. Section 10 provides that under the said Act, no person is capable of being taken in adoption unless he/she is a Hindu and he/she has not already been adopted or he/she has not been married (unless custom or usage so permit) and that he/she has not completed the age of fifteen years (unless so permitted by custom or usage).

Sub-sections (4) and (5) of Section 9 of the Act, 1956 are extracted below:

“(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 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) 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.-For the purposes of this section-

(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother; 6 [***]

(ia) “guardian” means a person having the care of the person or a child or of both his person and property and includes–

(a) a guardian appointed by the will of the child’s father or mother; and

(b) a guardian appointed or declared by a court; and]

(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides”.

So far as the facts of the instant case are concerned, admittedly Master Lakshya is capable of being taken in adoption in terms of the provisions contained in Section 10 of the Act, 1956. Respondent no.1 has also the capacity to take Master Lakshya in adoption in terms of provisions contained in Section 7 of the Act, 1956.

Taking into account the totality of the facts and circumstances of the case, there is no doubt in my mind that in case Master Lakshya is permitted to be given in adoption to respondent no.1, it will secure adequate care and protection of the minor and will also provide best opportunity for his upbringing and future development. Respondent no.1 is a highly educated individual having obtained an Engineering degree from Indian Institute of Technology, Roorkee and is also gainfully employed in Australia. He also does not have any child from his previous marriage. The petitioner after her marriage is also to live with respondent no.1 and in these circumstances, there cannot be even an iota of doubt that interest of the minor, Master Lakshya shall be best served in the company of both, the petitioner as also respondent no.1.

However, having observed as above, Section 9 (2) of the Act, 1956 stares at the facts and circumstances of the instant case as a stumbling block.

At this juncture, it is appropriate to make mention of the judgments cited at the bar. The first case relied upon and read extensively by Ms. Bulbul Godiyal and Sri Rohit Tripathi is ABC vs. State (NCT of Delhi), (2015) 10 SCC 1. The said case related to guardianship of a minor claimed by an unwed mother. The appellant in the said case gave birth to her child and raised him without any assistance from or involvement of his biological father. The mother intending to make her son her nominee in all her savings and other insurance policies, took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. Accordingly, she filed an application under Section 7 of Guardians and Wards Act, 1890 for getting herself declared as the sole guardian of her son. In the proceedings under Section 7 of Guardians and Wards Act, the Guardian Court directed her to reveal the name and whereabouts of the father, however, consequent to her refusal to do so, the guardian application was dismissed. The matter thereafter was taken up to High Court where appeal filed by her, too, was dismissed with the reason that her assertion that she is a single mother could only be decided after notice is issued to the biological father and that a natural father could have an interest in the welfare and custody of his child, even if there is no marriage and that no case can be decided in absence of a necessary party.

After dismissal of the appeal by the High Court, a Special Leave Petition was filed before the Hon’ble Supreme Court where Leave to Appeal was granted and ultimately Hon’ble Supreme Court allowed the appeal and appropriate directions were accordingly issued.

The issue in ABC (supra) was as to whether on presentation of an application seeking guardianship by the appellant notice to an “uninvolved father” of the child can be dispensed with when the father had not shown any concern for his offspring. It is relevant to state that section 11 of the Guardians and Wards Act requires issuance of notice on an application presented before the Court seeking guardianship of a child, to the parents of the minor if they are residing in any State to which the said Act extends. The applicant in the said case was unwed mother and had claimed guardianship of her child. She refused to reveal the name and whereabouts of the father consequent whereof the guardianship application was rejected by the Court and the appeal before the High Court was also dismissed.

Hon’ble Supreme Court, laying emphasis on discharging parens patriae jurisdiction by the Courts in such matters, observed that where a situation arises which would vitally affect the future and welfare of a child, the Courts will be derelict in their duty in merely rejecting the guardianship application without considering all the problems, complexities and complications concerning the child. Hon’ble Supreme Court in this case has observed that in a case where the father has chosen to forsake his duties and responsibilities, he is not a necessary constituent for the well-being of the child. Para 18 of the judgment in ABC (supra) is extracted herein below:

“18. It is thus abundantly clear that the predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock. Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ”mamta’. Furthermore, recognizing her maternity would obviate the necessity of determining paternity. In situations such as this, where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the wellbeing of the child. The Appellant has taken care to clarify that should her son’s father evince any interest in his son, she would not object to his participation in the litigation, or in the event of its culmination, for the custody issue to be revisited. Although the Guardian Court needs no such concession, the mother’s intent in insisting that the father should not be publically notified seems to us not to be unreasonable.”

Though the matter in ABC (supra) related to Guardians and Wards Act, Hon’ble Supreme Court, at more than one places, has emphasized upon the welfare of the minor child regardless of the rights of the parents. Hon’ble Supreme Court in the said case has also quoted various Articles of the Convention on the Rights of the Child to which India is a signatory. Article 3(1) of the said Convention states that in all actions concerning children, all the authorities, including the Courts of law shall take into account best interest of the child. Article 3(1) of the said Convention is quoted herein below:

“3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 21 of the said Convention is also relevant to be quoted here which runs as under:

“Article 21. States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;”

Accordingly, the Convention on Rights of Child emphasizes that in any system of adoption it will be the duty of all concerned to ensure that best interests of the child is the paramount consideration. Hon’ble Supreme Court in ABC (supra) made a reference of a Public Interest Litigation decided by Hon’ble Supreme Court in the case of Laxmi Kant Pandey vs. Union of India, [1985 Supp SCC 701] and observed in para 23 of the said report that in a situation where the father is not in actual charge of affairs of the minor because of any reason, the mother can act as natural guardian and her action would be valid even in the life time of the father, who would be deemed to be absent. Para 23 of the judgmment in the case of ABC (supra) is extracted herein below:

“23. Even in the absence of Laxmi Kant Pandey, we are not like mariners in unchartered troubled seas. The observations of a three Judge Bench of this Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are readily recollected. The RBI had refused to accept an application for a fixed deposit in the name of the child signed solely by the mother. In the context of Section 6 of the Hindu Minority and Guardianship Act as well as Section 19 of the Guardians and Wards Act, this Court had clarified that “in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father who would be deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.” This Court has construed the word ”after’ in Section 6(a) of the Hindu Minority and Guardianship Act as meaning “in the absence of – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.” Thus this Court interpreted the legislation before it in a manner conducive to granting the mother, who was the only involved parent, guardianship rights over the child.”

Thus, though the subject matter in ABC (supra) related to guardianship claimed by an unwed mother, Hon’ble Supreme Court laid emphasis on the welfare of the minor child and interpreted section 11 of the Guardians and Wards Act in the facts in the case in a manner where issuance of notice under section 11 to the “absent father” was dispensed with. Hon’ble Supreme Court has observed that in a situation where father has not taken any interest whatsoever in his child, the views of such an “uninvolved father” are not essential to protect the interest of a child born out of wedlock and raised solely by his/her mother.

The second judgment presented for Court’s perusal is the judgment dated 23.01.2015 passed by Hon’ble High Court of Judicature at Madras in Writ Petition No.29105 of 2014, Mrs. B.S. Deepa vs. Regional Passport Officer and another. In this case, mother of minor child had filed a writ petition seeking issuance of a writ of mandamus directing the passport authorities to issue a passport for her daughter, mentioning the name of adoptive father of the minor girl. In the said case also after annulment of the first marriage, the petitioner had remarried another individual. Out of the wedlock of the first marriage, a girl child was born and the petitioner gave her minor child in adoption to her second husband by a deed of adoption. The petitioner applied for a passport for her daughter, however, the said application was kept pending on account of the discrepancy between the name of the biological father and the name of the father indicated in the application form for passport. It is in these circumstances that the mother had approached the Madras High Court for issuing an appropriate direction to the passport authorities to issue the passport which was being denied on account of a circular issued by the department concerned to the effect that the name of step father or step mother cannot be written in the passport of the children.

Hon’ble Madras High Court in the said case referred to various judgments of different High Courts, including the judgment rendered by Hon’ble High Court of Delhi in the case of Teesta Chattoraj vs. Union of India, decided on 30.03.2012, W.P. (C) No.2888/2011. The judgment of Delhi High Court referred to by Madras High Court in Mrs. B.S. Deepa (supra) was rendered by Hon’ble Single Judge wherein a minor girl represented by her mother and natural guardian had filed a writ petition challenging rejection of her prayer by the passport officer to include the name of her step father in the application for issuance of passport. Hon’ble Delhi Court after noticing section 9 of Hindu Adoption and Maintenance Act, 1956 observed that when both parents of a child are alive, one of them cannot give in adoption without consent of the other. Hon’ble High Court of Madras in Mrs. B.S. Deepa (supra) has also considered the argument raised in Teesta Chattoraj (supra) that biological father should be deemed to have renounced the child, if not the world and that, therefore, his consent was not necessary. The said argument was, however, rejected by Hon’ble Single Judge of Delhi High Court. Hon’ble Madras High Court in Mrs. B.S. Deepa (supra) has observed that if one goes strictly by law, the prayer made in the writ petition cannot be allowed, however, that will leave the future of a minor girl completely in dark.

It was further observed in Mrs. B.S. Deepa (supra) that cases of such nature are going to increase in the coming days and hence the Government had failed to take note of the societal changes to modify the law suitably and thus, the Court is duty bound to issue appropriate directions without encroaching into the territory of the legislature. Hon’ble Madras High Court in the said case, thus, disposed of the writ petition by directing the Union of India to incorporate suitable provisions in the Passport Manual and incorporate suitable columns in the applications for the issue of passports to enable the parties to indicate either the names of the biological parents or the names of the adoptive parents or the names of the step parents or all of them. The Court further directed that the authority concerned shall issue passport to the minor child by indicating therein the name of her step father in the column reserved for filling up the name of the father.

As observed above, Hon’ble Single Judge of Delhi High Court in the case of Teesta Chattoraj (supra) took strict view of the provisions of the Act, 1956 and did not agree with the submission that the biological father of the minor can be said to have renounced the world merely because he had not paid any attention to the well being of the child and that he had not taken any responsibility towards the child. Hon’ble Single Judge of Delhi High Court did not find the adoption deed valid as the said adoption lacked the consent of the biological father of the child.

It is worthwhile to notice that against the judgment of Hon’ble Single Judge of Delhi High Court in the case of Teesta Chattoraj (supra) an intra-court appeal was filed before a Division Bench of two Hon’ble Judges which was decided on 11.05.2012 (LPA No. 357/2012, Ms. Teesta Chattoraj vs. Union of India, through her mother/natural guardian Smt.Rajeshwari Chattoraj vs. Union of India). The Division Bench allowed the the said intra-court appeal and also the writ petition and directed the passport authorities to issue the passport to the child which would contain the name of her biological mother and that of the person as her father with whom her mother had remarried.

The Division Bench of Delhi High Court in Teesta Chattoraj (supra) observed that in view of complete detachment of the biological father from the child who did not perform any of the fatherly duties, the mother cannot be restrained from lawfully including the child in her new family. The Division Bench further observed that parental rights cannot be allowed to spring full blown from merely a biological connection. Paras 24, 25 and 26 of the Division Bench judgment in the case of Ms.Teesta Chattoraj (supra) are quoted herein below:

“24. In the present case also the biological father of the appellant has totally renounced the appellant and has not performed any of the fatherly duties. We fail to see as to how the mother can be restrained from lawfully including the appellant in her new family. Parental rights cannot be allowed to spring full blown from merely a biological connection. They require relationships more enduring. The biological connection only gives a right to develop a relationship and make contribution to child‟s development. However if a parent does not grasp that opportunity, does not accept any measure of responsibility, the laws and the courts will hesitate to read any such rights in favour of a parent who has failed to do so. An observation to this effect can be found in a judgment of the Supreme Court of the United States in Abdiel CABAN v. Kazim MOHAMMED 441 U.S. 380 where it was observed that “in those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause would preclude the State from withholding from him the privilege of vetoing the adoption of that child.”

25. Though the Indian law does not, on renunciation of the child by either parent, vest a exclusive right in the other to give the child in adoption but such renunciation can be taken into consideration while determining whether the power to give in adoption has been delegated or to determine the consent to giving in adoption.

26. Moreover the primary objective in matters relating to adoption is the welfare of the child. We are satisfied that the adoption aforesaid is for the welfare of the child. Courts cannot be blind to the practicalities and realities of life. It is evident from the documents on record that though the name of the appellant in the birth certificate is shown as “Teesta Ghosh” the name by which the appellant is admitted to the school is “Teesta Chattoraj” and in the school records the name of her parents is recorded as of the mother and adoptive father. A child of tender age becomes a target of unnecessary queries if his/her surname differs from that of her parents. Such difference also acts as a continuous reminder of the factum of adoption and can be a bar to a smooth, natural relationship between the child and her parents. We therefore see nothing unusual in mother of the appellant, upon remarriage having given the appellant in adoption to her husband. The same is found to be a step permeating harmony in the family and to also create rights in favour of the appellant in the family of the husband of the mother of the appellant.”

Hon’ble Delhi High Court, thus, observed that primary objective in the matters related to adoption is the welfare of the child and further that the Courts cannot be blind to the practicalities and realities of life.

The facts of Ms. Teesta Chattoraj (supra) are almost similar to the facts of the present case. Noticing the peculiar facts of the said case, Hon’ble Delhi High court has observed that if the mother in bringing up the child finds it more convenient to give the child in adoption to her second husband, the same would be within the parameters of the mother’s power consented to by the biological father of the child. Para 20 of the judgment of the Division Bench in the case of Ms. Teesta Chattoraj (supra) is relevant to be quoted which is as under:

“20. It also not as if the mother of the appellant was giving the appellant in adoption to a stranger or that the mother of the appellant was separating herself also from the appellant, in which case perhaps it could have been said that the biological father had consented only to the mother rearing up the child and not to a stranger rearing up the child. If the mother of the appellant in so rearing up the appellant finds it more convenient to give the appellant in adoption to her present husband, the same in our opinion would be within the parameters of her power consented to by the biological father of the appellant.”

Purport of section 9 of the Act, 1956 needs to be understand in the light of the judgments aforementioned. The proviso appended to in sub section 2 of section 9 of the Act, 1956 carves certain exceptions where right to give in adoption can be exercised by either of the parents without the consent of the other and the exceptions are that (i) one of the parents has completely and finally renounced the world (ii) has ceased to be a Hindu and (iii) has been declared to be a person of unsound mind by the competent court.

The phrase occurring in the said proviso is “renounced the world”. As to whether in the facts and circumstances which this case has presented can it be said that biological father of the child has renounced the world needs to be considered. Renunciation ordinarily means an act of abandonment or giving up or surrendering a claim, right or possession etc. It further means to refuse to recognise any longer and to decline further association or disclaim relationship or to withdraw (Oxford Concise Dictionary). However, even if a person withdraws himself from any person or he refuses to recognize a person or abandons his claim or right over a person or surrenders his claim or rights, that would, in my opinion, not amount to renunciation of the world for the reason that such renunciation shall be confined to withdrawal from an individual person only. Rest of the world still will be within the bounds and relationship of the person concerned. Accordingly, in my opinion, by construing the phrase “renounced the world”, occurring in the proviso appended to sub section 2 of section 9 of the Act, 1956, in this manner to mean consent of the other parent is not required, is not permissible merely because a biological father has forsaken his right or has not given any attention to the care and protection of the child. Consent of the other parent will not be required for a person giving a child in adoption only if the other parent renounces the world and not the child alone.

Sub section 4 of section 9 of the Act, 1956 permits the guardian of the child to give the child in adoption with the previous permission of the Court in following situations:

(1) both the father and mother are dead,

(2) both the parents have completely and finally renounced the world,

(3) Both of them have abandoned the child,

(4) Both of them have been declared by a court of competent jurisdiction to be of unsound mind; and

(5) where the parentage of the child is not known.

The expressions “guardian” has been defined in explanation (ii) appended to sub section 5 of section 9 of the Act, 1956 to mean that a person having the care of the person and properly of child or of both his person and property.

In the present case, there cannot be any denial of the fact that the petitioner i.e. the mother of Master Lakshya is his guardian. It can also not be denied that the respondent no.3-Gaurav Gupta, the biological father of Master Lakshya has completely forsaken him and has given up all his rights including the right of visitation and has also categorically given the responsibility of bringing up the minor to the petitioner. In the proceedings before the Principal Judge, Family Court concerned under section 13-B of the Hindu Marriage Act, the affidavit filed by respondent no.3, contents whereof have been quoted herein before, is self speaking and explanatory. Biological father of the child, in the present case has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights including the right of visitation.

Master Lakshya also requires an atmosphere of more enduring relationship. In this background, I am in complete agreement with the judgment of the Division Bench of Hon’ble Delhi High Court in the case of Teesta Chattoraj (supra) and reiterate that if the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.

I further agree with the said judgment of Delhi High Court with all sincerity where it enunciates that though Indian law does not, on renunciation of child by either parent, vests an exclusive right in the other to give the child in adoption, however, such renunciation of the child by a parent can be taken into consideration while determining whether the power to give in adoption has been delegated, or to determine the consent to giving in adoption.

This Court can also not loose sight of the duty cast on it to exercise parens patriae jurisdiction to secure the care, protection and welfare of the child. International Convention on Rights of Child to which India is a signatory, also talks about ensuring a system of adoption to be in place which serves the best interest of the child, the same being of paramount importance.

Accordingly, the writ petition is allowed and the impugned order dated 03.07.2017 passed by the learned court below, as is contained in annexure no.1 to the writ petition, is hereby quashed and the application moved by the petitioner seeking leave to give Master Lakshya in adoption is allowed.

The petitioner, thus, will be permitted to give Master Lakshya in adoption to respondent no.1 for which purpose giving and taking ceremony in adoption shall be performed and a deed of adoption shall also be executed and registered in terms of section 16 of the Act, 1956.

Before parting with the case, the Court shall be failing in its duty if it does not acknowledge the laudable assistance rendered by Ms. Bulbul Godiyal, Amicus, who has painstakingly assisted the Court. The Court puts on record, with appreciation, the assistance provided by her.

There will be no order as to costs.

Order Date :-04.10.2017

Renu/akhilesh

 

 

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