Bombay High Court: In a case involving tug of war among adoptive parents and biological parents disputing over custody of a 2-year-old, Sharmila U. Deshmukh, J. quashed and set aside dismissal orders against adoption petition and directed the Trial Court to decide validity of adoption and retained custody of the child with the adoptive parents until disposal of the said matter by the Trial Court.
The adoptive parents claimed that the biological parents had given the child in adoption through an adoption deed dated 16-07-2021 bearing signatures and photographs of both adoptive and biological parents in the absence of any witnesses, which was disputed by the biological parents. An adoption petition was preferred on 18-09-2021 which was rejected through order dated 16-03-2022, and review against the same was also rejected on 8-03-2023 and the City Civil Court directed handing over the custody of minor child to the biological parents. It was observed that consent of both father and mother was required to give their child in adoption as per Section 9 of Hindu Adoption and Maintenance Act, 1956 (‘HAMA’) and that the adoption deed was not registered as per Section 16 in the absence of any recital regarding “giving and taking” of the child in adoption deed. The said orders were challenged in the instant petition.
The adoption petition was opposed by the child’s biological father in March 2018, stating that the biological parents got pregnant after a love relationship, who lost their jobs during pandemic and incurred some financial problems. The biological parents came in contact with someone (‘A’) after they decided to keep the child in the institution or for adoption. The child was born on 14-07-2021 and ‘A’ took them along with their child to get certain documents executed without reading, explaining and understanding the consequences. The biological parents contended that after discussion with their families, they decided to take their son back and sought rejection of the said adoption petition.
The Court perused the general provisions regarding adoption of a child and pointed out that the photographs on record indicated biological parents’ marriage as per Hindu rituals for considering provisions of Hindu Law in the context of adoption.
The Court expressed that “Considering the provisions of Section 4 as Chapter II of HAMA codifies the provisions as regards adoptions, in the absence of any provision to the contrary, in my opinion, it is the provisions of Chapter II of HAMA which will govern the adoption and not the text of Hindu Law.” The Court further highlighted provisions under Section 5 providing for regulation of adoption, Section 6 on requisites of a valid adoption, Section 9 specifying persons capable of giving in adoption, additional conditions for a valid adoption under Section 11, effects of adoption as per Section 12, non-cancellation of a valid adoption under Section 15, and presumption as to registered documents relating to adoption.
The Court clarified that the question arising in the instant matter was “whether the child was actually given and taken in adoption with intent to transfer the child from one family to the other” since the capability of parties was not disputed. The Court also cited provisions related to adoption and establishment of Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’).
Perusing the first dismissal order against the adoption petition, the Court scrutinized the requirements of Section 9 of HAMA. The Court observed that “despite there being no requirement of seeking permission of the Court, the adoption petition has been filed in the City Civil Court probably for seeking imprimatur of the Court to the adoption which was opposed by the biological parents and was adjudicated by the said Court.” It further negated the petitioners’ contention that the biological parents were co-petitioners in the said petition, saying that the same was not reflected from the said petition and that it was the affidavit-in-reply objecting the order being passed that the written reply was filed in which curiously the cause title was changed showing the biological parents as co-petitioners. It further questioned the City Civil Court’s requirements for the petitioners to produce a consent affidavit for their 7-year-old minor daughter, who was not competent to consent but whose consenting affidavit was filed.
It was pointed out that “The requirements of Section 11 of HAMA prescribing the conditions for valid adoption and Section 15 of HAMA which provides that valid adoption cannot be cancelled was not brought to the notice of the Trial Court. The trial Court considered the provisions of Section 9(1) of HAMA and rejected the petition by holding that consent of both father and mother is required.” The Court viewed that there was no necessity of filing an adoption petition since the provisions of Section 9(4) of HAMA were not applicable. The Court suggested that the appropriate course would have been to direct the parties to file substantive suits so that the matter could be adjudicated by leading evidence to establish that the conditions of valid adoption were satisfied. The Court referred to Param Pal Singh v. National Insurance Co., (2013) 3 SCC 409 wherein, the Court considered adoption provisions with reference to Lakshman Singh Kothari v. Rup Kanwar, (1962) 1 SCR 477 and M. Gurudas v. Rasaranjan, (2006) 8 SCC 367. The Court in the said decision observed that “no particular form is prescribed but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him.”
Regarding City Civil Court dismissing the adoption petition, the Court reiterated the requirement of substantive suit, and highlighted that adoption deed was not listed in the documents required to be compulsorily registered as per Section 17 of Indian Registration Act, 1908. The Court questioned the summary manner of deciding the said matter and handing over of child by the biological parents to a third person. It stated that “In wake of the dispute being raised as regards the actual giving and taking of the child with intent to transfer the child from one family to another, evidence was required to be led.” The Court further observed regarding presumption of adoption that “as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption.”
The Court found the order dated 16-03-2022 unsustainable, further stating that the Short Cause Suit by adoptive parents seeking declaration of validity of adoption could not conclude adoption in favour of adoptive parents. The Court observed that the City Civil Court failed to appreciate that the adoption petition was dismissed in a summary manner without giving any opportunity to the parents to lead any evidence and the matter was decided on the basis of affidavits. The Court pointed towards the government orders reflecting that it was not mandatory to register adoption deeds.
Decision of the Court
The Court quashed and set aside the impugned orders dated 16-03-2022 and 8-03-2023 but restricted the conclusion of adoption in favour of the adoptive parents. The Court directed the Trial Court to decide Short Cause Suit expeditiously within 6 months. The Court further allowed the child to remain with the adoptive parents till the final adjudication of the said suit.
[X v. Y, 2023 SCC OnLine Bom 1721, decided on 19-08-2023]
Advocates who appeared in this matter
For Petitioner: Advocate Sneha Phense. Advocate Savita Sawalkar, Advocate Gunjan Tamhane
For Respondents: Advocate Edith Dey