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Judgments of Supreme Court of India and High Courts

Sivarama K vs The State Of Kerala on 7 January, 2020

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

7

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 2019

8

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

9

(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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

22

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

24

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.

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