Interim Order 1

Order Details: Order below exhibit
Pdf Text: Adopt.Pet. COMMON ORDER : 1 :
IN THE SPECIAL COURT OF THE JUDGE UNDER THE SECURITIES
AND EXCHANGE BOARD OF INDIA ACT, 1992 AT BOMBAY
ORDER BELOW EXHIBIT 5
IN
ADOPTION PETITION NO.5 of 2020
In the matter of Section 9(4)(5)of the
Hindu, Adoption and Maintenance Act,
1956,
AND
In the matter of the Adoption of Master
Raghuvansh, Hndu, aged about 1 years
5-month-old
Abhinav Gopal Krishan Aggarwal & Anr.
Vs.
Child Welfare Committee Mumbai,
Suburban Disrict.
ORDER BELOW EXHIBIT 6
IN
ADOPTION PETITION NO.15 of 2020
Rahul Kailash Gupta & Anr. ...Petitioner/Applicant
V e r s u s
Child Welfare Commitee Mumbai
Suburban District, ... Respondents
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ORDER BELOW EXHIBIT 6
IN
ADOPTION PETITION NO.16 of 2020
Amar Vilas Desai & Anr.
Vs.
Child Welfare Committee Mumbai
Suburban District.
ORDER BELOW EXHIBIT 6
IN
ADOPTION PETITION NO.17 of 2020
Vinod Yashwant Kadam & Anr. ...Petitioners
Vs.
Child Welfare Committee Mumbai ...Respondent
Suburban District.
ORDER BELOW EXHIBIT 5
IN
ADOPTION PETITION NO.27 of 2020
Lahu Vithoba Niwatkar & Anr. ...Petitioners
Vs.
Child Welfare Committee, Mumbai ...Respondents
Mr.Jagushthe for Petitioner (in Adoption Petn.No.5/20).
Mr.Wakode for Petitioner (In Adoption Petn.Nos.15/20,16/20, 17/20 &
27/20,)
Advocate Ms. Suzan Abraham for Respondents/CWC-Mumbai.
Advocate Ms.Seema Adate for Respondent/CWC-Mumbai
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CORAM : HIS HONOUR SPECIAL JUDGE
SHRI. M.M.UMAR
SEBI SPECIAL COURT
(Court Room No. 22)
DATE : 19th August, 2020.
COMMON ORDER
1. The child welfare Committee (CWC) Mumbai Suburban-I has
filed the identical application in all abovesaid adoption petitions for
deleting CWC as a respondent. The petitioners have filed their
respective replies on that application
2. Read the application and reply. Heard Advocate Ms.Suzan
Abraham for CWC so also, to Mr.Siddharth Jagusthe learned advocate
for petitioners in Petition no.5/2020 and Mr.Wakode for the Petitioners
in rest of the petitions.
3. Ms.Abraham learned advocate for CWC has vehemently
submitted that CWC has no role to play in adoption petitions filed by
the Petitioners under the provisions of Hindu Adoption and
Maintenance Act (HAMA). Ms.Abraham has also submitted that CWC
has made best efforts to comply with the directions of Hon'ble High
Court with regard to the interim order dated 11/11/2019 or
27/11/2019 in Criminal Writ Petition no.4782/2019, 4783/2019,
4849/2019, 4848/2019 and 4850/2019. Ms.Abraham has further
submitted that there was entire discussion before the Hon'ble High
Court which was revolved around the various provisions of JJ Act and it
was presumed that the adoption petitions would be filed under the JJ
Act, but the petitioners have filed adoption petition under the HAMA.
She has further submitted that though CWC has assisted this Court as
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per the directions of the Hon'ble High Court but CWC has no locus to
act under the provisions of HAMA. It is also submitted that under the
provisions of HAMA the petitioners have to make the biological parents
as the parties and in case where the child is abundant child get
themselves declared "Guardian of the child". Ms.Abraham has
submitted that CWC is not a necessary party under the provisions of
HAMA therefore, it is requested to delete CWC/respondent in the
abovesaid adoption petitions.
4. Per contra, the learned advocate for the petitioners have
submitted in one voice that it is a well settled position of law that both
the HAMA and JJ Act are Central inactments and there is absolutely no
repugnancy between the two legislations. It is submitted that the
parliament has in its wisdom specifically included Section 56 (3) into
JJ Act 2015, which substantiates that the adoption carried out under
HAMA are saved and that HAMA is not repugnant with the JJ Act.
5. It is submitted that the CWC was made party respondents, as the
custody of the children in the abovesaid petition was with CWC and the
CWC never took any objection before any Court with regard to its
locus. It is submitted that when CWC has the custody of the child it is
very well falls within the definition of “guardian” under Section 9(4) of
HAMA and can have the capacity to give the child in adoption. In
support of their contention the learned advocates for the petitioner
have heavily relied upon the decisions of Sohanlal Vs. Additional
Sessions Court No.9 and others, AIR 2015 ALL 33, wherein in para
no.23,24,and 25 the Hon'ble High Court has observed as under:
"
23. Section 9 of the Hindu Adoptions Act, apart from permitting
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the father and the mother, also permits the guardian of a child to give
the child in adoption. Section 9 as it existed prior to its amendment in
1962 by the Parliamentary Act No.45 of 1962 though permitted the
guardian of a child to give him/her in adoption with the previous
permission of the court, however, such adoption was permissible only
in case the parents were dead or had completely and finally renounced
the world or had been declared by a court to be of unsound mind. The
provision, as it existed prior to 1962, thus, did not permit an
abandoned child to be given in adoption by a guardian. It is also
noticeable that the definition of “guardian” was also confined to mean
only a testamentary guardian or a guardian appointed or declared by a
court.
24. Prior to passing of Act No.45 of 1962 by the Parliament , Section
9(4) of the Hindu Adoptions Act stood as under:--
“Where both the father and the mother are dead or have completely
and finally renounced the world or have been declared by a Court of
competent jurisdiction to be of unsound mind, the guardian of child
(whether a testamentary guardian or a guardian appointed or declared
by a court) may give the child in adoption with the previous permission
of the court.”
25. Since the provisions relating to adoption of an orphan were not
very satisfactory for the reason that the Act did not include the
abandoned children to qualify for being given in adoption and the
definition of “guardian” was also very narrow, the Hindu Adoptions
and Maintenance (Amendment)Act (Act No.45 of 1962) was enacted
by the Parliament with the object of bringing the persons having the
care and custody of the child within the meaning of “guardian” by
suitably amending Section 9(4) of the Principal Act and also for
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providing that an abandoned child or a child whose parentage is not
known or whose religion cannot be ascertained and who is brought up
as a Hindu shall be regarded as a Hindu by religion. The Statement of
Objects and Reasons of Act No.45 of 1962 enacted by the Parliament
for amending Section 9(4)of the Principal Act is extracted below:-
“Amending Act of 1962 – “Under the Hindu Adoptions and
Maintenance Act, 1956 the guardian of a child has been given the
power to give the child in adoption with the previous permission of the
Court. But this power can be exercised only by a testamentary guardian
or a guardian appointed or declared by the Court as specified in
Section 9(4) of the Act. A person having the care and custody of a child
has, however, no power to give the child in adoption although for all
practical purposes he is the guardian of the child. Then again, there is
no provision in the Act authorising the adoption of a child abandoned
by both of his parents or of a child whose parentage is not known.
Children are sometimes abandoned by their parents for fear of social
opprobrium, for reasons of poverty and for other reasons. If these
children could be given in adoption, they might grow up in congenial
home atmosphere as good citizens. These abandoned children are very
often brought up in founding homes or other children’s institutions.
The manager of such homes or institutions having the care and custody
of these children is, for all practical purposes, their guardian and there
is no reason why he should not have the power to give the child in
adoption with the permission of the Court like the testamentary
guardian or the guardian appointed or declared by the Court. It is
therefore, considered that this lacuna in the law should be removed by
suitably amending section 9(4) of the Act so as to bring a person
having the care and custody of the child within the meaning of
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‘guardian’. “--Gazette of India, 1962, Pt II, Sec.2, Extra., page 475.”
6. The learned advocates for the petitioners have also submitted
that since the specialized adoption agency is working under CWC and
as per the direction of the Hon'ble High Court the CWC is before this
Court for assisting the Court to dispose of the matter expeditiously, now
at this belated stage, the CWC cannot take the stand that it has no locus
in HAMA and it cannot ask for deletion from the array of respondents.
Lastly, it is requested to reject the application.
7, I have duly considered the above submissions of both the sides,
so also I have gone carefully through the case record. It is important to
mention here that on 27/11/2019 the Hon'ble High Court pleased to
pass the following order:
"6. Petitioners have already initiated the proceedings for adoption
and as the child is with CWC, the concerned CWC is joined as
respondent therein. It is brought to our notice that those proceedings
cannot continue till specialized adoption agency under the CWC
declares the child free for adoption after following appropriate
procedure.
7. We direct the CWC to appear before the City Civil Court, Mumbai
and assist that court in the matter. The court shall within one week
from today, make appropriate reference to the Specialized Adoption
Agency under the CWC for this purpose.
8. The specialized adoption agency shall complete the necessary
exercise of obtaining Social investigation Report (SIR) in relation to
parents from the respective areas at the earliest and preferably within
six weeks from today.
9. In case of petitions who hail from Delhi the CWC having
jurisdiction there shall assist the CWC, Mumbai in obtaining that report
within the same time. Petitioner shall also assist the CWC and
specialized adoption agency in the matter of obtaining the SIR.
10. The reports thereafter shall be produced in the City Civil Court in
the adoption proceedings. That court shall therefore complete the
proceedings in accordance with law at the earliest and in any case
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within next three months from the receipt of the report."
The Hon'ble High Court also directed to CWC to appear before
this Court and assist the Court in expeditious disposal of the abovesaid
adoption petitions and CWC appeared before this Court and co-
operated the Court for the expeditious disposal of the abovesaid
adoption petition. But all of a sudden CWC has filed the present
application for deletion as a respondent.
8. In the order dated 13/8/2020 the Hon'ble High Court has
observed in para no.11 as under:
“ 11. We are not impressed by the submission of the learned Counsel
for CWC that since under Section 58 of the Act, 2015, CWC has no role
in the proceedings, the CWC cannot be called upon to assist the Court.
The submission loses sight of the fact that CWC is not an adversary
party in the proceedings for adoption. The Court had noted that the
Specialized Adoption Agency was working under CWC. Evidently, this
Court was of the view that the presence of the CWC before the Court
would facilitate the expeditious disposal of the adoption proceedings.
In the circumstances, the City Civil Court can proceed to decide the
substantive adoption proceedings without feeling constrained by the
procedural propriety of the impeadment of CWC as a party to the said
proceedings.”
9. There is no dispute that in Petition no.5/20 the child was
abandoned by its biological mother/parents and in other petition, the
children were surrendered by the biological mother to CWC and as the
biological mother of the children in the abovesaid petitions were not in
a position to provide due care and protection to the infants. It is also
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not in dispute that except in Adoption Petition no.5/20 in which the
child was found abundant in other petition the biological mother
consented and expressed their willingness before CWC to give the child
in adoption and they have no objection.
10. It appears to me that there is no legal force in the contentions of
CWC that it has no locus in the petitions filed under HAMA because
admittedly the children are in the custody of Specialized Adoption
Agency and that agency is working under CWC.
It is important to mention here that in principal HAMA the
statement of the objects and reasons of Amending Act,1962, clearly
shows the object of permitting abundant children, brought up in
foundation homes all other children in institutions to be given in
adoption as the management of the such home and institutions having
the care and custody of such orphaned children, for all practical
purposes, is their guardian and hence the Parliament in its wisdom
thought it is appropriate to provide for giving a child in adoption by
management of such homes or institutions being his/her guardian, of
course with the permission of the Court. In other words, it can be said
that by amending Section 9(4) of the HAMA , in the matter of given an
orphaned or abandoned child in adoption, the management of care and
protection homes where such children reside was brought at par with
the testamentary guarding or the guardian appointed or declared by
the Court by inserting explanation (ia) to section 9(4) of the principles
Act, the anomaly, is existed in law, thus, was sought to be removed by
the parliament.
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11. On the cost of repetition, in Adoption Petition no.5/2020 the
child is abandoned, whereas in other abovesaid petitions the biological
mothers have surrendered the children to CWC for giving them in
adoption to the other families and admittedly at present the children
are in the care and protection of specialized adoption agency working
under CWC. Therefore, considering all aspects and directions of the
Hon'ble High Court given time to time in the Writ Petitions filed by the
petitioners for quashing the FIR, the request of the CWC that it has no
locus and has no role to play in the adoption petitions filed by the
petitioners under HAMA, appears not acceptable, as in view of the
matter the guardian CWC becomes capable of giving the said children
in adoption though with previous permission of the Court, which
should be satisfied that adoption is for the welfare of the child. Hence
the request of CWC needs to be rejected. In the result following order:
O R D E R
In abovesaid Adoption Petitions the request of CWC to delete it
as a respondent, is hereby rejected.
Date : 19.08.2020 (M.M.UMAR)
SEBI Special Judge
City Civil & Sessions Court,
Gr. Bombay.
Dictated on : 19.08.2020
Typed on : 19.08.2020
Signed by HHJ. : 25.08.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27.08.2020 11.50 a.m. Mrs. Jyoti Mane
Name of the Judge HHJ Shri MM Umar (CR No.22)
Date of Pronouncement of
Judgment/Order.
19.08.2020
Judgment/order signed by P.O on 25.08.2020
Judgment/order uploaded on 27.08.2020
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