Bombay High Court
Prabha P. Dhimmar vs Unknown on 19 December, 2009
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
AND
IN ITS GENERAL AND INHERENT JURISDICTION
FOREIGN ADOPTION PETITION NO. 100 OF 2009
In the matter of the appointment of
guardian of the person of female
ig minor SHUBHANGI (born on 29th
December, 2006) an inmate of Bal
Vikas, Shishu Welfare Trust of India,
Shishu Bhavan, Malad (East),
Mumbai - 400 097.
Carsten Friis and his )
wife Kirsten Jacobsen Friis )
both Danish Nationals, residing at )
Stourupvej 13, 8700 Horsens, Denmark, )
through their Constituted Attorney )
Prabha P. Dhimmar, Shishu Bhavan, )
Malad (East), Mumbai - 400 097. ).... Petitioners
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Shri Vishal Kanade i/by Mahimtura & Co. for the Petitioners.
Ms Uma Palsule, AGP for the State.
Mr.O.Hareendran , representative of Indian Council of Social Welfare,
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CORAM : A.S.OKA, J.
Date: 19th December 2009.
JUDGMENT :
This is a Petition filed under Section 41 of Juvenile Justice
(Care and Protection of Children ) Act, 2000 (hereinafter referred to as
"the said Act"). When this Petition appeared on the earlier date, this
Court had called upon the representatives of the various Indian
Placement Agencies for Inter-country adoption (RIPA) to submit their
respective views about the safeguards to be provided while permitting
adoption in a Petition under Section 41 of the said Act. This Court also
called upon the learned counsel appearing for the Petitioner to address
this Court on the question of jurisdiction to entertain an application
under Section 41 of the said Act in the light of Sub-rule (5) of Rule 33 of
Juvenile Justice ( Care and Protection of Children ) Rules, 2007
( hereinafter referred to as "the said Rules" ).
2. Section 41 of the said Act of 2000 provides for an adoption
of children who are orphans, abandoned or surrendered. Adoption is
one of the methods of process of rehabilitation and social integration of a
child as provided in section 40 of the said Act. Section 41 carves out an
exception to personal laws prevailing regarding adoption of children.
3. First issue to be considered is as regard the jurisdiction of
the Court to pass orders under Section 41 of the said Act of 2000. Sub-
rule (5) of Rule 33 of the said Rules reads thus:-
"33(5) For the purposes of section 41 of the Act,
"Court" implies a Civil Court, which has jurisdiction
in matters of adoption and guardianship and may
include the Court of the District Judge, Family Courts
and City Civil Court."
4. Rule (5) of Rule 33 of the said Rules refers to a District
Court. As far as the City of Mumbai is concerned, the question is
whether the City Civil Court is a District Court. Under Section 2(4) of
the Code of Civil Procedure, 1908 ( hereinafter referred to as "the said
Code" ), a District is defined as "the local limits of the jurisdiction of a
Principal Civil Court of Original Jurisdiction ( hereinafter called a
"District Court" ) and includes the local limits of the Ordinary Original
Civil Jurisdiction of a High Court". In the case of In re Anthony
Fernandes & Others, [1993(1) Bombay Cases Reports 580 ], this Court
held that the High Court of Bombay exercising Ordinary Original Civil
jurisdiction is a deemed District Court being the Principal Civil Court of
Original Jurisdiction. Therefore, as far as the City of Bombay is
concerned, this Court is a District Court.
5. The question is whether the jurisdiction to entertain an
application under Section 41 of the said Act of 2000 vests in a Family
Court, City Civil Court or This Court. Section 7 of the Family Courts
Act, 1984 (hereinafter referred to as "the said Act of 1984") deals with
the jurisdiction of the said Court. The section 7 of the said Act of 1984
reads thus:
"7. Jurisdiction.-- (1) Subject to the other provisions of this
Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law for
the time being in force in respect of suits and proceedings of
the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdic-
tion under such law, to be a district court, as the case may be,
such subordinate civil court for the area to which the jurisdic-
tion of the Family Court extends.
Explanation.--The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:--
(a) a suit or proceeding between the parties to a marriage
for a decree of nullity of marriage (declaring the mar-
riage to be null and void or, as the case may be, an-
nulling the marriage) or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity
of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either
of them;
(d) a suit of proceeding for an order or injunction in cir-
cumstances arising out of a marital relationship;
(e) a suit of proceeding for a declaration as to the legitim-
acy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit of proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise--
(a) the Jurisdiction exercisable by a Magistrate of the first
class under Chapter IX (relating to order for mainten-
ance of wife, children and parents) of the Code of
Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by
any other enactment."
Clause (g) of the explanation to sub-section (1) of Section 7 of the said Act
of 1984 gives jurisdiction to the Family Court to entertain a suit or pro-
ceeding in relation to the guardianship of the person or the custody of, or
access to, any minor. However, clause (g) does not confer jurisdiction on
the Family Court to entertain and try an application for grant of permission
to adopt a child. None of the clauses in the Explanation to sub-section 1 of
Section 7 confer jurisdiction on the Family Court to exercise powers under
Section 41 of the said Act or a jurisdiction to permit adoption of a child .
Now it will be necessary to consider whether the Family Court gets juris-
diction to entertain an application under section 41 of the said Act in view
of clause (b) of sub-section 2 of section 7. Thus, the question is whether
the said Rules can be said to be an "enactment" within the meaning of the
said clause. The word " enactment" has not been defined either under the
said Act or the said Rules. Section 3 (19) of the General Clauses Act, 1897
(hereinafter referred to as the said Act of 1897) defines "enactment" as un-
der:
" (19) "enactment" shall include a Regulation (as hereinafter
defined) and any Regulation of the Bengal, Madras or Bombay
Code, and shall also include any provision contained in any
Act or in any such Regulation as aforesaid;"
The said Act of 1897 also defines the words "regulation" and
"rule" as under:
"(50) "Regulation" shall mean a Regulation made by the
President [under Article 240 of the Constitution and shall in-
clude a Regulation made by the President under Article 243
thereof and] a Regulation made by the Central Government
under the Government of India Act, 1870, or the Government
of India Act, 1915, or the Government of India Act, 1935;
(51) "rule" shall mean a rule made in exercise of a power
conferred by any enactment, and shall include a regulation
made as a rule under any enactment."
Thus, a distinction has been made between a regulation and a rule. The
said Rules cannot be a "regulation" as the rule making power has been ex-
ercised by the Central Government under section 68 of the said Act. The
reference to an enactment in clause (b) of sub-section 2 of section 7 of the
said Act of 1984 is not to a rule as distinguished from an enactment. The
first part of clause (b) refers to jurisdiction conferred by the Code of Crim-
inal Procedure, 1973 and the second part refers to any other enactment. A
rule framed in exercise of rule making power conferred by statute will not
be an enactment. Some statutes confer jurisdiction on the government or
any other authority to frame regulations. Such regulations are in fact
made as rules under the particular enactment. The word "regulation" is dif-
ferent from a rule. The said Rules cannot be an enactment referred in
clause (b).Therefore, under section 7 of the said act of 1984, jurisdiction
to entertain and decide applications under section 41 of the said act has
not been conferred on the family court.
6. Under the Bombay City Civil Court Act, 1948 the City Civil
Court does not have jurisdiction to deal with matters of adoption. At this
stage, it will be necessary to refer to the Letters Patent and, in particular,
Clause 17 thereof. Clause 17 of the Letters Patent reads thus:-
"17. Jurisdiction as to infants and lunatics :- And
we do further ordain that the said High Court of
Judicature at Bombay shall have the like power and
authority with respect to the persons and estate of
infants, idiots and lunatics, within the Bombay
Presidency, as that which was vested in the said High
Court immediately, before the publication of these
presents."
. Under Clause 17 of the Letters Patent, this Court has
jurisdiction as to infants and lunatics. On this aspect, it will be necessary
to consider a decision of this Court in the matter of Manual Theodore
D'Souza [2000(2) Bombay Cases Reports 244]. In the said decision, this
Court had an occasion to consider the scope of Clause 17 of the Letters
Patent. This Court came to the conclusion that the jurisdiction to pass an
order of giving a child in adoption is vested in the District Court and/or
the High Court having jurisdiction under its Letters Patent. In fact, after
considering clause 17 of the Letters Patent, this Court observed that
pending legislation, it will be this Court which will have a jurisdiction
under the Letters Patent to give a child in adoption by way of
Miscellaneous Application in the Petition for guardianship. Thus, the
conclusion is that this Court exercising Ordinary Original Civil
Jurisdiction has jurisdiction to entertain the applications/petitions for
adoption under Section 41 of the said Act of 2000.
7. Sub-rule (5) of the rule 33 provides that for the purposes of
section 41 of the said Act, "Court" means a Civil Court which has
jurisdiction in the matters of adoption and guardianship which may
include the Court of the District Judge, Family Court and City Civil Court.
There cannot be any dispute that this Court has jurisdiction in the
matters of adoption and guardianship. As pointed out earlier under the
said act of 1984, the Family Court does not have jurisdiction in the
matters of adoption. A Family Court could have become a Court within
the meaning of sub- rule 5 of rule 33 of the said Rules provided it had
jurisdiction in the matters of both adoption and guardianship. But a
Family Court has no jurisdiction in the matters of adoption. Therefore it
cannot be treated as a Court for the purposes of sub-rule 5 of rule 33 of
the said Rules. It may be contended that as the sub-rule 5 specifically
refers to Family Court, there is a concurrent jurisdiction vested in this
Court and a Family Court and a Family Court being subordinate to this
court, applying principles analogous to section 15 of the said code, an
application under section 41 of the said act ought to be filed in the
Family Court. Firstly, a Family Court is not a Court under section 41 of
the said Act as it does not have jurisdiction in the matters of adoption.
Secondly, this Court has jurisdiction in the matters of adoption by virtue
of Letters Patent. A Full Bench of the Madras High Court in the case of V.
Ramamirtham, Sole Proprietor, Glorious Pictures v. Rama Film Service,
(AIR (38) 1951 Madras 93 ) had an occasion to consider a question as to
whether Section 15 of the said Code has any application when there is a
conflict between the Ordinary Original Civil Jurisdiction of the High
Court and the Madras City Civil Court constituted under the Madras City
Civil Court Act. Under Section 15 of the said Code, it is provided that a
suit has to be instituted before the lower most Court having jurisdiction
to entertain the same. The Full Bench of the Madras High Court In V.
Ramamirtham's case (supra), held that in a case where there is a conflict
between the Ordinary Original Civil Jurisdiction of the High Court and
the City Civil Court, Section 15 of the said Code will have no application.
Therefore, section 15 of the said Code will not apply in such a case.
8. Thus, as far as the City of Bombay is concerned this Court
exercising Ordinary Original Civil Jurisdiction has exclusive jurisdiction
jurisdiction to entertain the applications/petitions for adoption under
Section 41 of the said Act.
9. Various orders passed by this Court in such Petitions under
Section 41 of the said Act filed by foreign nationals were brought to the
notice of this Court by the learned counsel appearing for the Petitioner
and Mr. O. Hareendran. In the said orders, an undertaking of the
Petitioners has been recorded to execute a bond either personally or
through their duly Constituted Attorney in India in favour of the
Prothonotary and Senior Master of this Court in a particular amount to
repatriate the minor to India with the permission of this Court if it
becomes necessary for any reason to do so . In the said orders, further
undertaking of the Petitioners was recorded to submit to this Court for
every three months for two years and every six months for the next three
years the progress report of the said minor made by the concerned
authorities in the country to which the Petitioner belongs. Such orders
are being passed when Petitions for adoption under Section 41 of the
said Act are filed by the foreigners. The object of passing such orders is
to ensure that progress reports of the child are submitted to this Court in
order to ensure that a child is treated well by adoptive parents. In such
cases, where the Petitioners are foreigners, it is impossible to enforce
such undertaking or such bonds. Therefore, a suggestion was made by
this Court that undertaking should be filed by RIPA through which the
applications are made to this Court. The undertaking should be to
submit post placement reports as regards the progress of minor to this
Court as also to the Central Adoption Resource Authority. The
undertaking of the concerned RIPA should be to submit quarterly
progress reports during the first year and thereafter, half yearly reports
during the next year. The progress reports shall be signed by the
authorised representative of the concerned Enlisted Foreign Adoption
Agency (EFAA) .There should be also an undertaking by RIPA to submit
a report to this Court regarding disruption, if any, as regards the minor
and to follow the process for alternative rehabilitation at the earliest.
There should be a further undertaking by the RIPA stating that the
agency will move this Court for an appropriate order including recall of
the order of adoption so granted in case there is any breakdown or
disruption. When representatives of the RIPA remained present before
this Court, all of them fairly accepted to submit such undertakings.
Accordingly, in this Petition, such undertaking has been filed on oath by
the Managing Trustee of Bal Vikas Shishu Welfare Trust of India. The
undertaking has been filed in the format approved by this Court. It is
advisable to take such undertaking in each cases while passing orders
under Section 41 of the said Act to ensure that the progress reports of
the child are submitted to this Court and to ensure that the agency
moves this Court immediately in case of disruption or breakdown in case
of the adopted minor. It is the duty of the Registry to ascertain whether
progress reports are filed in this Court as per the undertaking and to
bring it to the notice of the Court in case, such reports are not filed. The
Prothonotary and Senior Master will issue necessary directions in that
behalf to the concerned officers. It is obvious that in such cases, even the
Central Adoption Resource Authority is duty bound to move this Court.
10. The Foreign Adoption Petition is allowed subject to what is
observed above by signing a separate Judge's Order.
(A.S.OKA,J)
