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Judgments of Supreme Court of India and High Courts

Kokila vs The Child Welfare Officer on 16 April, 2019

1

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16.04.2019

COM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

W.P.(MD)No.9404 of 2019
and
W.M.P.(MD)Nos.7413 and 7414 of 2019

Kokila … Petitioner

Vs

The Child Welfare Officer,
District Child Welfare Unit,
176, Muthu Surabhi Building,
Mani Nagar,
Palayamkottai Road,
Tuticorin. … Respondent

PRAYER: Petition filed under SectionArticle 226 of the Constitution of

India to issue a Writ of Certiorari, to call for the records

pertaining to the impugned letter issued by the respondent in

No.462/Ma.Ku.A/2017, dated 02.01.2018 quash the same.

For Petitioner : Mr.R.Subramanian

For Respondent : Mr.M.Rajarajan
Government Advocate

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ORDER

The writ petitioner is residing at Kommadikkottai,

Sathankulam, Tuticorin District. She is married to one

Anandapal. The petitioner is aged about 46 years. Since they

did not have children even after 18 years of marriage, they

decided to adopt a child. Through relative, they were introduced

to one Murugan and his wife Kalaivani. Murugan is visually

challenged. Since they had three children, they were willing to

give their third child born on 24.08.2015 in adoption to the

petitioner and her husband. The petitioner and her husband as

well as the said Murugan and Kalaivani profess Hindu religion.

After conducting the usual adoption ceremony, the child was

given by the biological parents in adoption on 14.09.2015 to the

petitioner and her husband. An adoption deed was also

executed.

2.The child was brought to the native place and named as

Yuvankia. The child is presently studying Pre.K.G. in Sree

Kanchi Sankara Bharathi Vidhyalaya. While so, one Emi a

fellow villager lodged a compliant against the petitioner and her

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husband to hand over the child to the Welfare Committee. It

was made clear that in the event of the petitioner failing to do so,

action would be taken under the Juvenile Justice (Care and

SectionProtection of Children) Act, 2015. This communication is

challenged in this writ petition.

3.The petitioner as well as her husband and the child were

present before me, when the matter was taken up for hearing. I

am satisfied that the child is being brought up well by the

petitioner and her husband. The petitioner alleges that her

husband is a part time plumber and that one Emi, resident of

the village was taking water unauthorizedly from the public

water land. Since this was objected by the petitioner and her

husband, she lodged the said complaint.

4.The writ petition has to be allowed and the impugned

communication has to be set aside on a short ground. The

respondent is an authority under SectionCentral Act 2, 2015.

Therefore, the respondent cannot go beyond the statutory

provisions. The biological parents of Yuvanika are Hindus. The

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petitioner and her husband namely., Anandapal are also Hindus.

If the biological parents want to give adoption, it will have to

meet the requirements of Section 6 of the Hindu Adoption and

SectionMaintenance Act, 1956. It is not the case of the respondent that

the adoption of Yuvanika by the petitioner and her husband is

not valid under Hindu Adoption and SectionMaintenance Act, 1956. No

such stand has been taken. This is because from the materials

on record it is seen that the persons adopting the child and the

persons giving the child in adoption have the capacity to do so.

Thus all the requirements set out in the said Act stand fulfilled.

Section 56 (3) of the Juvenile Justice (Care and SectionProtection of

Children) Act, 2015 reads as follows:-

“Nothing in this Act shall apply to the adoption of
children made under the provisions of the Hindu
Adoption and SectionMaintenance Act, 1956.”

Since the adoption had taken place under the Hindu Adoption

and SectionMaintenance Act, 1956, an authority acting under SectionCentral

Act 2, 2015 will have no jurisdiction.

5.The impugned order is illegal and without jurisdiction. It

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5

is unfortunate that the welfare of the child has not been borne in

mind, merely because a complaint has been lodged. From the

letter head of Emi, it is seen that she claims to be a member of

the ruling party. Yet the authority could not have mechanically

acted in the matter. In matters concerning children, one has to

be very sensitive. The authority must see if their action will

advance the interest of the child or not. In this case, the

adoption was made as early as on 14.09.2015. The child was

hardly 17 days old then. For more then 3 ½ years the child is

with the petitioner and her husband. The respondent have not

borne in mind the consequences of removing the child from the

petitioner’s custody. Merely because a complaint was made, a

direction to hand over the child could not have been issued.

Viewed from any angle the order impugned in this writ petition

has to be quashed. It is accordingly quashed. The writ petition

is allowed. No costs. Consequently, connected miscellaneous

petitions are closed.

16.04.2019
Index : Yes/No
Internet : Yes/No
ias

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6

To:

The Child Welfare Officer,
District Child Welfare Unit,
176, Muthu Surabhi Building,
Mani Nagar,
Palayamkottai Road,
Tuticorin.

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7

G.R.SWAMINATHAN, J.

ias

W.P.(MD)No.9404 of 2019

16.04.2019

http://www.judis.nic.in

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