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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
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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