The Orissa High Court has held that Muslims cannot seek adoption of children under their personal law and to pursue the same under the Juvenile Justice Act, the laid down stringent procedure under the Act and prescribed Rules has to be followed.
The Division-Bench of Justice Subhasis Talapatra and Justice Savitri Ratho in this view allowed the petition of a father for restoration of custody of his 12 years old minor girl whom the respondents claimed to have adopted.
Brief Facts of the Case
It was the petitioner's case that his 12-years old minor daughter was forcibly confined and illegally detained by the respondents who are the sister of the petitioner and her daughter and son-in-law. It has been categorically submitted that the petitioner has been denied to meet his daughter despite a series of attempts made by him. The petitioner had reported the matter to the concerned police station as well as to the Child Welfare Committee (CWC) but no positive action has surfaced from those authorities. He had also approached Police Station for 'removal of his daughter' but no action was taken in that regard.
He thus filed a complaint in the court of the Sub Divisional Judicial Magistrate. Pursuant to the said complaint, the police was directed to register a specific case and to take up the investigation. Accordingly, a case under Section 363/34 of the IPC was registered in which they obtained bail. In addition, the petitioner made a representation to the Chairperson of, Child Welfare Committee.
It was submitted that the respondents are in the habit of changing their residence frequently so that they remain untraceable and continue illegal custody of the minor. It was further submitted that the petitioners do not have any legal right over the custody of the minor. He averred that he made all efforts to meet his minor daughter and to bring her back to his family but the respondents had frustrated his efforts. The petitioner also alleged that proper care was not afforded to his minor daughter and that the respondents have restricted the minor daughter from attending school and she has been made to do all the household work, from morning to night.
It was his submission that the petitioner and his daughter are governed under Mohamadden law and as per their custom, adoption is strictly prohibited. The petitioner has been wrongfully deprived of the custody of his daughter for years together. Hence, considering the welfare of the child, he pleaded that the minor be rescued from illegal detention. Her custody should be restored to the petitioner being her natural guardian. It has been further stated that the respondents reside in a sensitive area of Bihar and they are close to many influential people. They disappeared when the police had visited their house for search.
In a joint counter-affidavit, the respondents stated that the petitioner has suppressed the material facts and made unfounded allegations. According to them, the petitioner and his wife had no resources to bring up two daughters (twin daughters) since birth. It was decided by them that one daughter would be given to "an Ashram". Finally, the respondents secured their custody and as per the Muslim tradition known as Kafalah under which the pre-existing parent-child relation is not terminated but a new parent-child relationship is established between the child and the adopted parents.
It was asserted that the petitioner has deliberately concealed the fact that the adoptive parents of the minor girl had filed Guardianship Case before Sections 7 and 8 of the of the Guardian and Wards Act, 1890 read with Section 7 (G) of the Family Courts Act, 1984 and Section 349 from Mulla on Mohammedan Law praying for declaration that they are the lawful guardian of the minor girl making the issue sub-judice. The respondents have denied the charge of negligence in taking due care as stated that utmost care of the minor is taken by them. On the contrary, it was claimed that the petitioner did not send a single rupee for her care. They have also controverted the averment that the petitioner was not allowed to meet his minor daughter.
High Court's Observation
The Court framed three questions pertinent to adjudicate the right of the petitioner in asking for a writ of habeas corpus for restoring the custody of the minor:
(i) Whether there had been any valid adoption of the minor by Opposite Parties No.9 and 11?
(ii) Whether this court has the territorial jurisdiction over the subject matter or for issuing the writ of habeas corpus? 32
(iii) Whether the custody of the minor girl needs to be restored in favour of the petitioner?
The Court noted that Section 47 of the Juvenile Justice Care and Protection of Children Act, 2000 is a secular provision which provides the detailed procedure for adoption.
"The primary purpose of adoption, according to the J.J Act, isrehabilitation of the children who are orphans, abandoned or surrendered in terms of prescription as laid down. That apart, stringent guidelines for adoption have been framed. Adoption is carried out through the Central Adoption Resource Agency (CARA, in short) following the procedure as laid down under subSection 5 of Section 41."
The Court added that under Section 3 of the said Act, provision has been made to make a declaration-(1) Any person who satisfies the prescribed authority- (a) that he is a Muslim, and (b) that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872 and (c) that he is a resident of the territories to which this Act extends, may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of Section 2 shall apply to the declaration and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
The Court stated that there is no such declaration by the respondents as regards the minor girl. Observing that while it is true that a Muslim can adopt a surrendered child, the court asserted that they have to follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder and cannot proceed at their whim.
"So generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection. As such, we hold that the claim of adoption is unsustainable in law. Hence, prima facie, there is no proof of adoption of the minor under the JJ Act or under Section 3 of the Muslim Personal Law (Shariat Act), 1937. Even there is no specific averment either in the writ petition or in the petition filed seeking guardianship of the minor in the court of the Family Judge that the minor was adopted following the procedure of the JJ Act", the court ruled.
The Court after due deliberations opined that while exercising the parens patriae jurisdiction for issuance of the writ of habeas corpus, the objections relating to territorial jurisdiction cannot have serious impact, in as much as the best interest of the minor has to be protected by the court and that should not be restricted by the technical objection.
The Cout noted that no document has been produced with the counter affidavit by the respondents to show that the petitioner and his wife were issued the notice from the court or they have appeared in the proceeding. Mere institution of the civil legal action does not mean that the respondents/Opposite Parties are in the know of such institution.
The Court thus observed that in the absence of adoption, the custody of the minor child is liable to be termed as illegal detention.
"Even the kinship relationship as has been argued is not sufficient to deprive the parents from getting the custody of their child and the detention of the child was sought to be justified by the pretext of adoption which does not exist in fact or in law." it ruled.
The petition was thus allowed.
Case Title: Nesar Ahmed Khan vs State of Orissa & Others
Case Details: WPCRL No.160 of 2021
Coram: Hon'ble Mr. Justice Subhasis Talapatra and Hon'ble Mr. Justice Savitri Ratho
Advocates for Petitioner: Ms. S. Sahoo, Advocate
Advocates for Respondent: Mr. J. Katikia, AGA. (O.Ps. No.1 to 5), Mr. Anshuman Ray, Advocate (O.Ps. No.6 to 11)
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