IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941
WP(Crl.).No.439 OF 2019
PETITIONER/S:
1 SIVARAMA K.,
AGED 39 YEARS
S/O. VENKATTARAMANA BHAT, RESIDING AT HARI NILAYA,
BHAT COMPOUND, KUMBLA, KOYIPADY VILLAGE, KASARAGOD
DISTRICT.
2 ARUNA M.S.,
AGED 33 YEARS
W/O. SIVARAMA, RESIDING AT HARI NILAYA, BHAT
COMPOUND, KUMBLA, KOYIPADY VILLAGE, KASARAGOD
DISTRICT.
3 NARASIMHA,
AGED 37 YEARS
S/O. MAYIGA, RESIDING AT HALAGOOR, HOBLI, NITTOORU,
HOSADODDI VILLAGE, MALAVALLI TALUK, MANDYA DISTRICT,
STATE OF KARNATAKA.
4 SOWMYA,
AGED 30 YEARS
W/O. NARASIMHA, RESIDING AT HALAGOOR, HOBLI,
NITTOORU, HOSADODDI VILLAGE, MALAVALLI TALUK, MANDYA
DISTRICT, STATE OF KARNATAKA.
BY ADVS.SRI.T.MADHU
SMT.C.R.SARADAMANI
RESPONDENT/S:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HOME
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE STATE POLICE CHIEF,
KERALA, OFFICE OF THE STATE POLICE CHIEF,
THIRUVANANTHAPURAM-695001.
WP(Crl.).No.439 OF 2019
2
3 THE DISTRICT POLICE CHIEF,
KASARAGOD, KASARAGOD DISTRICT-671121.
4 THE CHILD WELFARE COMMITTEE,
KASARAGOD, REPRESENTED BY ITS SECRETARY, OFFICE
OF THE CHILD WELFARE COMMITTEE, KASARAGOD-
671121.
5 THE STATION HOUSE OFFICER,
KUMBLA POLICE STATION, KASARAGOD DISTRICT-
671321.
6 SISU VIKAS BHAVAN,
THIRUVAKOLI, PALAKKUNNU, PANAYAL POST,
KASARAGOD DISTRICT-671318, REPRESENTED BY ITS
SECRETARY.
BY GP SRI.K.B.RAMANAND
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(Crl.).No.439 OF 2019
3
“CR”
JUDGMENT
(Dated this the 7th day of January, 2020)
C.S.DIAS, J.
This writ petition is filed seeking a writ of
Habeas Corpus to direct the respondents 4 to 6 to
produce a child named ‘Thanmayi’ born on
11.7.2019, said to be in the illegal detention of the
respondents 4 to 6.
2. The thump nail sketch of the facts in the
writ petition is that the petitioners 3 and 4 are the
biological parents of the child ‘Thanmayi’. The
petitioners 3 and 4 (in short ‘biological parents’), by
Ext P-1, registered adoption deed dated 5.8.2019 of
the Malavalli Sub-Registry Office, Mandya,
WP(Crl.).No.439 OF 2019
4
Karnataka, placed the child ‘Thanmayi’ (in short
‘child’) in adoption to the petitioners 1 and 2
(adoptive parents). The adoptive parents, though
married for many years, are issueless. As the
petitioners are all Hindus by religion, they are
governed by the provisions of the Hindu Adoption
and Maintenance Act, 1956 (for brevity, referred to
as ‘HAM Act’). The biological parents and the
adoptive parents on their own free will and volition
decided to give and take the child in adoption.
Accordingly, Ext P-1 adoption deed was executed
and registered, and the child was handed over by
the biological parents to the adoptive parents. Since
5.8.2019, the child was in the care and custody of
the adoptive parents.
3. While so, on 9.12.2019, the fifth respondent
WP(Crl.).No.439 OF 2019
5
purportedly on the directions of the fourth
respondent – the Child Welfare Committee (‘CWC’
for short), Kasargod, forcefully took away the child
from the adoptive parents and placed the child in
the custody of the sixth respondent – a child care
institution. The fifth respondent registered Ext P-2
FIR (crime No.458/2019) against the petitioners for
an offence punishable under Sec.80 of the Juvenile
Justice (Care and Protection of Children) Act, 2015
(for brevity, referred to as ‘J.J Act’).
4. According to the petitioners, the act of the
fourth respondent in directing the fifth respondent
to register Ext P2 FIR, and in taking away the child
from the custody of the adoptive parents is ex facie
illegal and without any authority of law. Thus, they
have contended that the child is in the unlawful
WP(Crl.).No.439 OF 2019
6
detention of the respondents 4 to 6.
5. When the writ petition came up for hearing
on 16.12.2019, the learned Government Pleader
took notice for respondents 1 to 5, and notice to the
sixth respondent was issued by special messenger.
The case was posted on 19.12.2019.
6. On 19.12.2019, when the writ petition was
taken up for hearing, the learned Government
Pleader handed over the orders passed by the
CWC. The CWC found that the child was handed
over by the biological parents to the adoptive
parents in contravention to Sec.80 of the J.J Act.
Hence, the CWC held that Ext P-1 adoption is void
and illegal, and therefore, the child is a child in need
of care and protection. Accordingly, the child was
directed to be placed with the child care institution.
WP(Crl.).No.439 OF 2019
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All the petitioners were present in Court.
7. We had by our interim order dated
19.12.2019, on prima facie finding the action of the
fourth respondent to be wrong and irregular,
directed the child to be restored to the adoptive
parents.
8. Heard Sri.T.Madhu, the learned counsel for
the petitioners and Sri.Ramanand K.B, the learned
Government Pleader for respondents 1 to 5. There
was no appearance for the sixth respondent.
9. The questions that emerge for
consideration in this writ petition are as follows:
(i) Whether P-1 adoption effected as per
the provisions of the HAM Act can be said to
be in contravention of the J.J Act?
(ii) Whether the J.J Act overrides the
WP(Crl.).No.439 OF 20198
HAM Act.
(iii) Whether the child is in the unlawful
detention of respondents 4 to 6.
10. As the above questions are intertwined, we
are considering them together.
11. It is undisputed that the petitioners 3 and
4 are the biological parents of the child; that the
adoptive parents are issueless and that all the
petitioners are Hindus by religion.
12. The Hindu Adoption and Maintenance Act,
1956, was enacted for the purpose of amending and
codifying the law related to adoption and
maintenance among Hindus.
13. Sec. 2(1) of the HAM Act reads as follows:
2. Application of Act -(1) This Act
applies-
WP(Crl.).No.439 OF 2019
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(a) to any person, who is a Hindu
by religion in any of its forms or
developments, including a Virashaiva,
a Lingayat or a follower of the
Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a
Buddhist, Jaina or Sikh by religion,
and
(c) to any other person who is not a
Muslim, Christian, Parsi or Jew by
religion, unless it is proved that any
such person would not have been
governed by the Hindu Law or by any
custom or usage as part of that law in
respect of any of the matters dealt
with herein if this Act had not been
passed.
14. Sec.5 of the HAM Act reads as follows:
5. Adoptions to be regulated by this Chapter- (1)
No adoption shall be made after the commencement of
WP(Crl.).No.439 OF 2019
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this Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption
made in contravention of the said provisions shall be
void.
(2) An adoption which is void shall neither create any
rights in the adoptive family in favour of any person
which he or she could not have acquired except by reason
of the adoption, nor destroy the rights of any person in
the family of his or her birth.
15. The Juvenile Justice (Care and Protection of
Children) Act was initially enacted in the year 2000.
Subsequently, to re-enact a comprehensive
legislation, the Juvenile Justice (Care and
Protection of Children) Act, 2015 was re-enacted.
16. The preamble of the J.J Act, 2015, reads as
follows:
An Act to consolidate and amend the law relating to
WP(Crl.).No.439 OF 2019
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children alleged and found to be in conflict with law and
children in need of care and protection by catering to
their basic needs through proper care, protection,
development, treatment, social re-integration, by
adopting a child-friendly approach in the adjudication
and disposal of matters in the best interest of children and
for their rehabilitation through processes provided, and
institutions and bodies established, hereinunder and for
matters connected therewith or incidental thereto.
XXXXXXXX
XXXXXXXX
AND WHEREAS, it is expedient to re-enact the
Juvenile Justice (Care and Protection of Children) Act,
2000 (56 of 2000) to make comprehensive provisions for
children alleged and found to be in conflict with law and
children in need of care and protection, taking into
consideration the standards prescribed in the Convention
on the Rights of the Child, the United Nations Standard
Minimum Rules for the Administration of Juvenile
WP(Crl.).No.439 OF 2019
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Justice, 1985 (the Beijing Rules), the United Nations
Rules for the Protection of Juveniles Deprived of their
Liberty (1990), the Hague Convention on Protection of
Children and Co-operation in Respect of Inter-country
Adoption (1993), and other related international
instruments.
17. Chapter VIII of the J.J Act deals with
adoption.
18. Sub-sec.(3) of Sec.56 reads as follows:
(3) Nothing in this Act shall apply to the adoption of
children made under the provisions of the Hindu Adoption
and Maintenance Act, 1956 (78 of 1956).
19. The above extracted provisions establish
that both the HAM Act and the J.J Act are central
enactments occupying their respective fields. The
former statute deals with adoption and maintenance
WP(Crl.).No.439 OF 2019
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among Hindus, and the latter statute is an Act to
consolidate and amend the law relating to children
found in conflict with law and children in need of
care and protection. On a close scrutiny of the two
statutes, we do not find any repugnancy between
the two legislations.
20. The Hon’ble Supreme Court in Shabnam
Hashmi vs Union of India [2014 (2) KLT
444(SC)] has held:
“11. The J.J Act, 2000, as amended, is an enabling
legislation that gives a prospective parent the option of
adopting an eligible child by following the procedure
prescribed by the Act, Rules and the CARA Guidelines, as
notified under the Act. The Act does not mandate any
compulsive action by any prospective parent leaving such
person with the liberty of accessing the provisions of the
Act, if he so desires. Such a person is always free to adopt
or choose not to do so and, instead, follow what he
WP(Crl.).No.439 OF 2019
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comprehends to be the dictates of the personal law
applicable to him. To us, the Act is a small step in reaching
the goal enshrined by Art.44 of the Constitution. Personal
beliefs and faiths, though must be honoured, cannot dictate
the operation of the provisions of an enabling statute. At the
cost of repetition we would like to say that an optional
legislation that does not contain an unavoidable imperative
cannot be stultified by principles of personal law which,
however, would always continue to govern any person who
chooses to so submit himself until such time that the vision
of a uniform Civil Code is achieved. The same can only
happen by the collective decision of the generation(s) to
come to sink conflicting faiths and beliefs that are still
active as on date”.
(emphasis
supplied)
21. Even though the above judgment was
rendered under the J.J Act, 2000, the obiter dictum
applies on all four to the subsequent Act, 2015
WP(Crl.).No.439 OF 2019
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because the 2015 statute is only a more
comprehensive legislation of the Act, 2000.
22. The Parliament has in its wisdom,
specifically included Sec.56(3) in the J.J Act, 2015,
which substantiates that adoptions carried out
under the HAM Act are saved, and that the HAM
Act is not repugnant with the J.J Act.
23. The CWC without considering any of the
above statutory provisions under the two statutes,
directed the police to register Ext P2 FIR, on the
allegation that the petitioners have contravened
Sec.80 of the J.J Act.
24. Sec.80 of the J.J Act reads as follows:
80. Punitive measure for adoption
without following prescribed
procedures – If any person or
WP(Crl.).No.439 OF 2019
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organization offers or gives or
receives, any orphan, abandoned or
surrendered child, for the purpose of
adoption without following the
provisions or procedures as provided
in this Act, such person or
organization shall be punishable with
imprisonment of either description for
a term which may extend upto three
years, or with fine of one lakh
rupees, or with both;
(emphasis
supplied)
X X X X X X X X
25. It is indubitable as per Sec.80 that if any
person or organisation gives or receives any orphan,
abandoned or surrendered child in adoption without
following the provisions or procedures as per the J.J
Act would be punishable under Sec.80.
WP(Crl.).No.439 OF 2019
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26. In the case before us, the biological
parents gave their child in adoption to the adoptive
parents after fulfilling all the provisions of the HAM
Act, that too, after executing a registered adoption
deed.
27. Sec.16 of the HAM Act reads as follows:
16. Presumption as to registered documents relating to
adoption- Whenever any document registered under any
law for the time being in force is produced before any
court purporting to record an adoption made and is signed
by the person giving and the person taking the child in
adoption, the court shall presume that the adoption has
been made in compliance with the provisions of this Act
unless and until it is disproved.
28. Therefore, once an adoption deed is
executed and registered under the HAM Act, the
Court shall presume that the adoption has been
WP(Crl.).No.439 OF 2019
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made in compliance with the provisions of the Act
until it is disproved.
29. On the giving of the child by the biological
parents and the taking of the child by the adoptive
parents, which is evidenced by Ext P-1 registered
adoption deed, the child can never be labelled as an
orphan, abandoned or surrendered child, as
interpreted by the fourth respondent. If such a view
is taken, it would render the HAM Act otiose and
redundant and make it appear that the former
enactment is repugnant with the J.J Act, which never
is the intention of the lawmakers. Such a narrow
and oppressive interpretation cannot be given,
particularly when the legislature has consciously
included Sec.56(3) in the J.J Act, the later
enactment, with the intention to permit adoptions
WP(Crl.).No.439 OF 2019
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under the HAM Act. There may be instances where
a person may qualify to adopt a child under the
provisions of both the HAM Act and the J.J Act. In
such an eventuality, especially where is no
repugnancy between the two statutes, it would be
the choice of such person to opt for the HAM Act or
the J.J Act, 2015, adoption. No authority can compel
such person to resort to only the J.J Act, 2015.
30. The CWC does not have a case that Ext P-1
adoption deed executed between the petitioners is
not in compliance with the provisions of the HAM
Act or that the petitioners are not eligible to give
and take the child in adoption under the former
enactment. Even if the CWC has such a case, it is
for the CWC to disprove Ext P-1 deed. Merely by
raising an allegation that the child was placed and
WP(Crl.).No.439 OF 2019
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taken in adoption in contravention of Sec.80 of the
J.J Act is not sufficient, to direct the child to be
placed with a child care institution. Moreover,
Chapter VIII of the J.J Act, which deals with
rehabilitation and reintegration of children, makes it
apparent that the intention of the legislature is to
restore orphan, abandoned or surrendered children
to their parents, adoptive parents, foster parents,
guardian and fit person, in that priority. The aim
and object of the Act is to de-institutionalise
children and see that they are restored to their
families at the earliest, and not to place the above
category of children in institutions.
31. The action of the CWC in directing the
police to register a crime and then place the child in
the custody of the sixth respondent is erroneous and
WP(Crl.).No.439 OF 2019
21
is in total contravention of the provisions of the
HAM Act. Thus, we hold that the placing of the
child with the sixth respondent is arbitrary and
unwarranted, and tantamounts to illegal detention.
We, therefore, confirm the interim order dated
19.12.2019 and hold that the child shall be restored
to its adoptive parents.
32. Therefore, in exercise of this Court’s
jurisdiction under Article 226 of the Constitution of
India, we direct that the child shall live her life as
the adoptive child of petitioners 1 and 2, the
adoptive parents. However, we reserve the right of
the petitioners to file their written objections to the
orders passed by the CWC, if they are so advised. If
such objection is filed, the CWC shall consider the
written objections, keeping in mind the findings in
WP(Crl.).No.439 OF 2019
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this judgment, and pass a speaking order as
expeditiously as possible, at any rate within a period
of one month from the date of production of a copy
of this judgment.
This writ petition is allowed accordingly.
Sd/-
K.HARILAL
JUDGE
Sd/-C.S.DIAS
SKS/21.12.2019 JUDGE
/True copy/
P.A to Judge
WP(Crl.).No.439 OF 2019
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WP(Crl.).No.439 OF 2019
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APPENDIX
PETITIONER’S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ADOPTION DEE DATED
05/08/2019 REGISTERED WITH THE SRO,
MALAVALLI, MANDYA DISTRICT OF THE STATE
OF KARNATAKA.
EXHIBIT P1 A THE TRUE ENGLISH TRANSLATION OF EXHIBIT
P1.
EXHIBIT P2 THE TRUE COPY OF THE FIR DATED
09/12/2019 IN CRIME NO.458/2019 OF
KUMBLA POLICE STATION.
