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Arunkumar vs The District Child Protection Officer on 26 February, 2024

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Madras High Court

Arunkumar vs The District Child Protection Officer on 26 February, 2024

Author: G.R.Swaminathan

Bench: G.R.Swaminathan

W.P(MD)No.1353 of 2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 26.02.2024

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

W.P(MD)No.1353 of 2024

Arunkumar … Petitioner

Vs.

1.The District Child Protection Officer,
District Child Protection Office,
2/830, V.O.C. Nagar,
Soolakarai Medu,
Virudhunagar District – 626 003.

2.The State represented by
The Inspector of Police,
Sivakasi East Police Station,
Virudhunagar.

3.The Chair Person,
Child Welfare Committee,
No,1/648. Lakshmi Sundaram Theatre Road,
Gandhirajan Street,
Pandian Nagar,
Virudhunagar.
(R.3 is suo motu impleaded vide
order of this Court dated 23.01.2024)

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W.P(MD)No.1353 of 2024

4.The Sub Registrar,
Registration Department,
Sivakasi District.
(R.4 is suo motu impleaded vide
order of this Court dated 26.02.2024) … Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, directing the first
respondent herein to consider the petitioner’s representation dated
29.12.2023 and transfer custody of the child, Madhesh, to the petitioner
herein, taking into account the best interests and welfare of the child
within the specific period fixed by this Court.

For Petitioner : Mr.R.Manoharan

For Respondents : Mr.K.S.Selvaganesan
Additional Government Pleader
for R.1 R.3

Mr.A.Albert James
Government Advocate for R.2

Mr.S.Shanmugavel
Additional Government Pleader for R.4

ORDER

Heard both sides.

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W.P(MD)No.1353 of 2024

2.The petitioner got married to one Mahalakshmi in the year 2018.

Two children ( Aadhi Kirthik and Mathesh) were born through the

wedlock. The petitioner’s wife for reasons that are not clear left the

marital home three years ago. She did not take the children with her.

She simply abandoned them to the care of the petitioner. The petitioner

was working in a fire crackers unit. A major accident took place in the

said premises and the petitioner suffered burn injuries in his hands. The

petitioner found it very difficult to bring up the children.

3.The petitioner came in contact with a couple by name, Selvam

and Chandra. They had recently lost their 21 year old only son. They

were in deep emotional distress. They told the petitioner that if the

petitioner gives one of his children in adoption to them, they would

happily and safely bring him up. The petitioner did not have much of a

choice. He was not in a position to take care of his two children. His

wife had already left him. He had also suffered a major accident. He

was in severe financial difficulties. Therefore, the request made by the

said couple (Selvam Chandra) appealed to the petitioner. He

entrusted the custody of his child (Mathesh) to them.

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W.P(MD)No.1353 of 2024

4.At this stage, complaint was received by the Child Welfare

Officer about this transaction. Crime No.541 of 2023 was registered on

the file of Sivakasi East Police Station. The respondents 1 and 3 took

action and the aforesaid couple (Selvam and Chandra) were divested of

the custody of Mathesh. The child is presently in a Children’s Home at

Tuticorin. At this stage, this writ petition came to be filed for directing

the first respondent to hand over the custody of the child to the petitioner.

5.There is nothing on record to show that the petitioner had sold

the child to the aforesaid couple. The petitioner states that he had given

only temporary custody to the said couple.

6.The petitioner as well as the aforesaid couple appeared before

me. I enquired them. The petitioner / Arunkumar frankly told me that he

has no objection for giving the child in adoption to the said couple. The

said couple are also desirous of accepting the child in adoption. They are

having reasonably good economic background and I am satisfied that the

interest of the child will be better taken care if the child is adopted by

them. The child had been in their custody for almost one year. The child

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W.P(MD)No.1353 of 2024

was taken away from them only on 21.11.2023. Instead of the child

being brought up in a “Children’s home”, it would be better if he is

brought up by the aforesaid loving couple. It is true that ultimately the

child will be put up for adoption. When a couple who have already

developed an emotional bonding with the child want to take it in

adoption, it is just and proper that the paramount interest of the child

requires that child is given in adoption to them. The Hon’ble Supreme

Court in the decision reported in (2010) 1 SCC 174 (V.Ravi chandran v.

Union of India) held that whenever a question arises before a court

pertaining to the custody of a minor child, matter is to be decided not on

considerations of the legal rights of the parties but on the sole and

predominant criterion of what would best serve the interest of the minor.

I would apply the said principle not only in child custody cases but also

in any matter pertaining to interests of children.

7.The petitioner is the biological father of Mathesh. Since his wife

had already abandoned the child, the question of obtaining her consent

will not arise at all. Section 9(1) and (2) of the Hindu Adoptions and

Maintenance Act, 1956 reads as follows :

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W.P(MD)No.1353 of 2024

“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 (4), the
father or the mother, if alive, shall have equal right to give a
son or daughter in adoption:

Provided that such right shall not be exercised by either of
them save with the consent of the other unless one of them 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.”

In Githa Hariharan vs. RBI (1999) 2 SCC 228, the expression “after”

occurring in Section 6(a) of Hindu Minority and Guardianship Act, 1956

was interpreted not as “after the lifetime” but as “in the absence of”, the

word “absence” referring to the father’s absence from the care of the

minor’s property or person for any reason for whatsoever. If the father is

wholly indifferent to the matters of the minor, or he is staying away

completely, he can be considered to be absent and the mother being a

recognized natural guardian can act validly on behalf of the minor as the

guardian. This judgment was followed in ABC vs. State (2015) 10 SCC

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W.P(MD)No.1353 of 2024

1. The same approach can be adopted while applying Section 9 of the

Hindu Adoptions and Maintenance Act, 1956. The father as guardian of

the child has the capacity to give the child in adoption. He must however

take the consent of his wife if she is alive. When the wife has abandoned

the child and her whereabouts are not known, the said requirement can be

dispensed with. Of course, such dispensing with cannot be lightly made.

The facts must justify and only with the prior leave of the court, it can be

done.

8.After hearing the respondents, particularly, the jurisdictional

police, I am satisfied that a case has been made out for granting relief.

The petitioner’s wife has abandoned her child. Her consent need not be

obtained. The petitioner is permitted to hand over the child (Mathesh) in

adoption to the aforesaid couple (Selvam and Chandra). A formal deed

of adoption shall be executed and also registered. As and when such a

document is presented before the Sub-Registrar, Sivakasi, it shall be

registered. These formalities shall be completed within a period of four

weeks from the date of receipt of copy of this order.

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W.P(MD)No.1353 of 2024

9.In the meanwhile, the petitioner as well as the aforesaid couple

(Selvam Chandra) shall go to the Francis Fusion Home, Thoothukudi

and take custody of the child. The third respondent is requested to

inform the person in-charge of the said Home about the passing of this

order. After taking custody of the child, the petitioner and the aforesaid

couple will appear before the third respondent on 01.03.2024 at 11.30

a.m. The petitioner and the aforesaid couple shall also file an affidavit

before the third respondent undertaking to complete all the adoption

formalities under the Hindu Adoptions and Maintenance Act within a

period of four weeks.

10.Since the issue has been amicably resolved, the Inspector of

Police/second respondent is directed to file final report before the

jurisdictional Magistrate dropping further action in the matter. The

learned trial Magistrate is directed to accept the said final order to be

filed by the Investigation Officer. This shall be done as expeditiously as

possible.

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W.P(MD)No.1353 of 2024

11.This writ petition is allowed accordingly. There shall be no

order as to costs.

26.02.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
MGA

Note : Issue Order Copy on 27.02.2024

To

1.The District Child Protection Officer,
District Child Protection Office,
2/830, V.O.C. Nagar,
Soolakarai Medu,
Virudhunagar District – 626 003.

2.The State represented by
The Inspector of Police,
Sivakasi East Police Station,
Virudhunagar.

3.The Sub Registrar,
Registration Department,
Tenkasi District.

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W.P(MD)No.1353 of 2024

G.R.SWAMINATHAN, J.

MGA

W.P(MD)No.1353 of 2024

26.02.2024

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