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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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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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To:
The Child Welfare Officer,
District Child Welfare Unit,
176, Muthu Surabhi Building,
Mani Nagar,
Palayamkottai Road,
Tuticorin.
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G.R.SWAMINATHAN, J.
ias
W.P.(MD)No.9404 of 2019
16.04.2019
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