Andhra Pradesh High Court - Amravati

Puttagurayyasetti, Adopted ... vs The State Of Andhra Pradesh on 24 January, 2023

Bench: Battu Devanand

      THE HONOURABLE SRI JUSTICE BATTU DEVANAND

               WRIT PETITION NO.13531 of 2022


1.    This writ petition is filed to declare the action of the

respondents for illegally detaining the two adopted minor children

(Baby N. Rohini, 3 years and Baby N. Kowshik, 1 year) of the

petitioners by the respondents, without conducting any enquiry

and without following due process of law, as illegal, arbitrary,

violative of Articles 14 & 21 of the Constitution of India and

consequently to direct the respondents to restore the children to

the adopted parents.

2. The case of the petitioners is that, though they were married

long back, they were issueless and they were looking for adoption.

They came to know through their relatives that, biological mother

of the minor children died on 11.10.2021 due to ill-health. The

biological father is unable to maintain the children and he is

looking to give away the minor children in adoption. Then the

petitioners approached the biological father (9th respondent) and

his mother, who readily on their free will accepted for adoption.

Accordingly, the 9th Respondent executed Registered Adoption

Deed vide Document No.73/2021 dated 24.12.2021 and both the DEV,J W.P. No.13531 of 2022

minor children were given to the care and custody of the adopted

parents/petitioners. Since then, they are under the care and

custody of the petitioners.

3. While so, on 02.05.2022, the 7th Respondent - Sub

Inspector of Police, Cheedikada Police Station, Anakapalli District,

on the directions of the 6th Respondent -Child Welfare Committee,

came to the house of the petitioners, took away the minor children

without any acknowledgment and they were kept under the

custody of the 8th Respondent - Sishugruha Adoption Institute.

Questioning the action of the respondents, the present writ petition

is filed.

4. The 6th Respondent - Child Welfare Committee filed counter

affidavit, inter alia stating that, the 9th Respondent - Biological

Father gave complaint on 21.03.2022 to the 6th Respondent stating

that, his minor children were given for care and protection to the

petitioners in an intoxicated state by executing the Registered

Adoption Deed by receiving an amount of Rs.25,000/- as advance

and requested to return his minor children. Basing on the above

complaint, the 6th Respondent addressed letter to the Station

House Officer, Cheedikada Police Station to pursue the matter and DEV,J W.P. No.13531 of 2022

submit the report. On 03.05.2022, the police produced the minor

children before the 6th Respondent - Child Welfare Committee and

as they were falling under the age of 06 years, they provided

shelter in 8th Respondent - Sisugruha Adoption Institute. On

verification of the copy of the Registered Adoption Deed dated

24.12.2021, the 6th Respondent called for the petitioners to

produce the original Registered Adoption Deed. Thus, the

9th Respondent and the petitioners have violated the law and

indulging into sale and purchase of minor children for

consideration.

5. The 9th Respondent - Biological Father filed counter affidavit

stating that, after the death of his wife on 10.11.2021, he became

alcoholic. In that trauma, the mother of the 9th Respondent

received Rs.25,000/- from the petitioners and forced him to

execute Registered Adoption Deed on 24.12.2021 by giving the

minor children to the petitioners in adoption. There is absolutely

no relationship between the petitioners and 9th Respondent. After

coming out of the alcoholic state, he realized that his minor

children were missing and lodged complaint before the

6th Respondent - Child Welfare Committee, who thereafter secured

the presence of the minor children. The petitioners have got signed DEV,J W.P. No.13531 of 2022

the Adoption Deed by force and that too, the Adoption is not valid

due to payment of money to his mother and hence, the Adoption is

prohibited under Hindu Adoption and Maintenance Act.

6. The petitioners filed reply affidavit stating that, being

childless, they intended to enjoy the parenthood through adoption.

The petitioners who are relatives of the 9th Respondent, came to

know that the 9th Respondent is intending to give his minor

children in adoption as he is unable to maintain them. The

9th Respondent was also in thought of remarriage and feared that

his new wife may not accept the minor children. The petitioners

possess own house and financial sound to raise the children. To

enjoy the parenthood, they intended to adopt the minor children.

Accordingly, they adopted minor children from the 9th Respondent

by executing Registered Adoption Deed. There is no any

consideration at the time of registering the Adoption Deed between

the petitioners and the 9th Respondent and that the Adoption Deed

is as per the procedure prescribed under law, as such, the

provisions of the Juvenile Justice Act, 2015, cannot be made

applicable to the present case.

DEV,J W.P. No.13531 of 2022

7. Learned counsel for the petitioners filed written arguments

reiterating the contents of the writ petition and reply affidavit. The

petitioners also contended that, the provisions of the Juvenile

Justice Act, 2015, applies to limited class of children those who are

in conflict with law, in need of care and protection, orphaned,

surrendered or abandoned. It is also contended that, the

respondent/authorities have no jurisdiction or power to take

custody of the minor children when there is a Registered Adoption

Deed. Further, Hindu Adoption and Maintenance Act, 1956

overrides the Juvenile Justice Act. It is also contended that, both

the minor children can be taken in adoption at the same time

Finally, it is contended that the minor children are in the unlawful

detention of Respondent Nos.6 to 8 and prayed to allow the writ

petition by directing the Respondent Nos.6 to 8 to handover the

custody of minor children to the petitioners, for care and custody.

8. On behalf of official Respondent Nos.1,3 to 5 & 8, learned

Government Pleader for Women Development and Child Welfare

filed written arguments, stating that, the biological father in his

complaint dated 21.03.2022 before the 6th Respondent specifically

stated that, when he was in alcoholic state, the petitioners got

executed adoption deed by paying Rs.25,000/- to his mother and DEV,J W.P. No.13531 of 2022

hence transaction comes under Section 81 of the Juvenile Justice

Act to protect the interest of the minor children. The official

respondents, after following due process of law only, put the minor

children in the 8th Respondent institution for safe custody.

9. The 9th Respondent - Biological Father also filed written

arguments, reiterating the contents of the counter affidavit filed by

him and also stating that the adoption claimed by the petitioners is

not valid under law. The 9th Respondent also filed O.S.No.580 of

2022 on the file of the Junior Civil Judge, Bheemili declaring the

Registered Adoption Deed dated 24.12.2021 as illegal and the same

is pending for adjudication.

10. Heard, Ms. M. Vinodin Ruth, learned counsel for the

petitioners, learned Government Pleader for Women and Child

Welfare for Respondent Nos.1, 3 to 6 & 8; learned Government

Pleader for Home for Respondent Nos.2 & 7 and Sri Venkateswara

Rao Gudapati for Respondent No.9 and perused the material on

record.

11. It is an admitted fact that the 9th respondent is the

biological father of the two minor children (Baby N. Rohini, 3 years

and Baby N. Kowshik, 1 year). The biological mother of the minor DEV,J W.P. No.13531 of 2022

children died on 11.10.2021 due to ill-health. The petitioners being

childless, they intended to enjoy the parenthood through adoption.

The 9th respondent executed Registered Adoption Deed vide

Document No.73/2021 dated 24.12.2021 and both the minor

children were given to the care and custody of the adopted

parents/petitioners. Since then, they are under the care and

custody of the petitioners.

12. Subsequently, on 21.03.2022, the father of minor children

i.e. the 9th respondent gave a complaint to the 6th respondent

stating that his minor children were given for care and protection

to the petitioners in an intoxicated state by executing the

Registered Adoption Deed by receiving an amount of Rs.25,000/-

as advance and requested to return his minor children. Basing on

the said complaint, the 7th respondent as per the directions of the

6th respondent came to the house of the petitioners and took away

the minor children and they were kept under the custody of the 8 th

respondent i.e. Sishugruha Adoption Institute. Questioning the

action of the respondents, the present writ petition is filed.

DEV,J W.P. No.13531 of 2022

13. Learned counsel has placed reliance on the judgments in

Laxmi Kant Pandey vs Union Of India 1 , Jasmine Kaur vs.

Union of India2, Smt. Anokha vs The State Of Rajasthan3 and

Kommuri Sriniwas vs. State of Telangana4.

14. This Court carefully gone through these judgments. This

Court carefully agreed with the proposition of law laid down in

those judgments. But, in view of the facts and circumstances of

the present case, those judgments are not directly applicable to

the present case.

15. In the present case, though there is registered Adoption

Deed executed by the petitioners and the 9th respondent for giving

adoption of the two minor children to the writ petitioners,

subsequent to the said Adoption Deed, the 9th respondent who is

the biological father raised dispute on the ground that during

intoxication condition, at the force of his mother he executed the

Adoption Deed. His contention is that, the Adoption Deed is not

legally valid. Accordingly, he filed a suit in O.S.No.580 of 2022

before the Principal Junior Civil Judge, Bheemunipatnam,

1 1987 SCR (1) 383 2 CWP-10555-2019 dated 28.07.2020 3 (2004) 1 SCC 382 4 AIR 2021 NULL 33 DEV,J W.P. No.13531 of 2022

Visakhapatnam District, seeking declaration of the Registered

Adoption Deed dated 24.12.2021 as illegal. Admittedly, the said

suit is pending for adjudication.

16. Under these circumstances, this Court while dealing with

this issue under Article 226 of the Constitution of India, cannot

deal with the disputed question of facts and cannot decide the

legality and validity of the registered Adoption Deed dated

24.12.2021 which is pending for consideration and adjudication

before the concerned Civil Court. Only after adjudication of the

suit filed by the 9th respondent by the competent Civil Court, the

rights of the parties basing on the Adoption Deed dated

24.12.2021 will be decided.

17. The opinion of this Court is fortified by the Hon'ble Apex

Court in Sanjay Sitaram Khemka vs. State of Maharashtra 5,

wherein it is held as extracted hereinunder at Paragraph

Nos.8 & 9:

"8. Having regard to the allegations and counter allegations made by the parties before us, we are of the opinion that no releif can be granted to the Petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The

(2006) 5 Supreme Court Cases 255 DEV,J W.P. No.13531 of 2022

petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law.

9. A Writ Petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the Petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution."

18. In one of the unreported judgment of the Hon'ble Apex

Court in Subhas Jain vs. Rajeshwari Shivam [C.A No.2848 of

2021 dated 20.07.2021], it is held as extracted hereinunder in

Paragraph No.26:

"It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable."

DEV,J W.P. No.13531 of 2022

19. The Hon'ble Supreme Court in Subhashree Das vs. State of

Orissa6 in Paragraph No.7 observed as extracted hereunder:

"High Court in exercise of jurisdiction under Article 226 of the

Constitution of India, would ordinarily not adjudicate a matter

where the foundational facts are disputed."

20. The Hon'ble Supreme Court in M.P. Power Management

Company Limited, Jabalpur vs. Sky Power Southeast Solar

India Private Limited and others7, in Paragraph No.42 observed

as extracted hereunder:

"Such disputed questions of fact ordinarily could not have

been entertained by the High Court in exercise of its power

of judicial review."

21. This High Court in Syed Muneer Raza vs. Chairman,

Railway Board, New Delhi8 held that, disputed question of facts

cannot be gone into by this Court under extraordinary jurisdiction

conferred under Article 226 of the Constitution of India.

(2012) 9 SCC 729

Civil Appeal Nos. 8515-8516 of 2022 dated 16.11.2022

AIR 2000 AP 204 DEV,J W.P. No.13531 of 2022

22. In view of the facts and circumstances of the present case

and without going into merits of the case at present and to protect

the interest of the minor children, now who are kept under the

care and custody of the 8th respondent, this Court intends to pass

the following directions to meet the ends of justice:

i. The care and custody of the minor children shall

continue with the 8th respondent - Sishugruha, Special

Adoption Institute, Vizianagaram under the regular

supervision of the Respondent Nos.6 & 7.

ii. The petitioners and the 9th respondent are at liberty to

visit the minor children, whenever, they wish, with the

permission of the 8th respondent.

iii. The Principal Junior Civil Judge, Bheemunipatnam is

requested to dispose of O.S.No.580 of 2022 on priority

basis, as expeditiously as possible, preferably not more

than six (06) months.