Page No.# 1/ vs The State Of Assam And 5 Ors
2025 Latest Caselaw 4834 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 5 Ors on 20 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                            Page No.# 1/11

GAHC010053952024




                                                       2025:GAU-AS:6349

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/1481/2024

         NRIPEN SARKAR AND ANR
         S/O LATE JUGEN SARKAR
         R/O 2 NO. BARUAHBARI
         SHIYALKHITI SONAPUR
         DIST. KAMRUP (M), ASSAM
         PIN-782402

         2: SMTI. USHA PAUL
         W/O NRIPEN SARKAR
         R/O 2 NO. BARUAHBARI
         SHIYALKHITI SONAPUR
         DIST. KAMRUP (M)
         ASSAM
         PIN-78240

         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY PRINCIPAL SECRETARY TO THE GOVT.OF ASSAM,
         DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, 1ST FLOOR, D-
         BLOCK,
         JANATA BHAWAN, DISPUR, GUWAHATI-06

         2:THE DIRECTOR

          WOMEN AND CHILD DEVELOPMENT
          ASSAM
          UZANBAZAR
          GUWAHATI-1
          ASSAM

         3:THE CHAIRPERSON

          CHILD WELFARE COMMITTEE (CWC)
                                                                  Page No.# 2/11

    FATASIL AMBARI
     KAMRUP METRO
     GUWAHATI-25

    4:THE JOINT DIRECTOR OF HEALTH SERVICES

     DEPARTMENT OF HEALTH AND FAMILY WELFARE
     GOVT. OF ASSAM
     KAMRUP (M)
     PIN-781003

    5:THE REGISTRAR (BIRTH AND DEATH)
    THE JOINT DIRECTOR OF HEALTH SERVICES
     DEPARTMENT OF HEALTH AND FAMILY WELFARE
     GOVT. OF ASSAM
     KAMRUP (M)
     PIN-781003

    6:THE OFFICER-IN-CHARGE

     KHETRI POLICE STATION

    KAMRUP (M)
    PIN-782403

    7:PALLAVI MANDAL
     D/O- SRI RABEN MONDAL
    R/O- VILL-KHETRI (ULANI)
    PS- KHETRI
    P/O-DHUPAGURI
    DIST-KAMRUP (M)
    PIN-78240




                             BEFORE
          HON'BLE MR. JUSTICE DEVASHIS BARUAH


Advocates for the petitioner(s)   :   Mrs. M Barman
                                      Mr. S Sahu Amicus Curiae


Advocates for the respondent(s) :      Mr. D Nath,

Page No.# 3/11

Senior Govt. Advocate, Assam Mr. M Islam for respondent No.7

Date of hearing & judgment : 20.05.2025

JUDGMENT & ORDER(ORAL)

Heard Mrs. M Barman, the learned counsel appearing on behalf of the petitioners and Mr. S Sahu, the learned Amicus Curiae in the matter. Mr. D Nath, the learned Senior Government Advocate, Assam appears on behalf of the respondent authorities and Mr. M Islam, the learned counsel, who appears on behalf of the respondent No.7.

2. Pursuant to the order passed by this Court on 15.05.2025, the instant proceedings was taken up in-camera in presence of the respondent No.7, who is the biological mother of the child namely, Master Uday Sarkar as well as the petitioners. During the said interaction, the respondent No.7 stated before this Court that she was the victim of rape and due to the said incident, she got pregnant and gave birth to a male baby on 28.04.2023. She further stated that as she was an unmarried girl and having no source of income and, as such, she along with her parents had decided to give the child in adoption to the petitioners, who were the near relatives of the respondent No.7. She further stated that the petitioners were the maternal uncle and maternal aunt of the respondent No.7. The petitioners, who were also present before this Court stated that since the birth of the child, they have been taking care of the child.

Page No.# 4/11

To formalize the said adoption on 26.05.2023, the respondent No.7 had executed an Adoption Deed in favour of the petitioners, wherein the parents of the respondent No.7 were the witnesses. Further to that the Respondent No.7 alongwith her parents had handed over the child to the petitioners who thereupon had raised the child as their own with great love and affection.

3. During the course of the hearing, this Court had also enquired with the respondent No.7 in respect to the said Deed of Adoption dated 26.05.2023 and she submitted that she along with her parents had decided to give in adoption the child to the petitioners herein. It was also informed to this Court that as the child was given on adoption on 26.05.2023 by following the mandate of the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act of 1956') in the birth certificate of the child, the names of the petitioners have also been reflected.

4. This Court further enquired with the petitioners as regards the adoption so made, who submitted that both the petitioners have been legally married and for the last 15 years they had no issue. Taking into account that their niece was going to give birth to a child and their inclination to permit the petitioners to adopt the said child, they had adopted the said child by mutually signing the Adoption Deed on 26.05.2023. This Court was further informed by the petitioners that after the adoption of the said child they had also performed the functions as regards the adoption of the child including the Annaprashana (weaning ceremony) as would be evident from the photographs enclosed as Annexure-4 to the writ petition. However, on 11.02.2024, one SI Pradip Kumar Pradhani had taken away the child on the allegation that the adoption was not Page No.# 5/11

valid and it is under such circumstances, the instant application had been filed seeking a writ of Habeas Corpus.

5. It is seen that pursuant to the filing of the instant writ petition, notice was issued by this Court. On 29.11.2024, the learned Government Advocate, who appeared on behalf of the respondent authorities submitted that the child is under the custody of the Child Welfare Committee. It was apprised to this Court that if the child is to be adopted by the petitioners, the same can only be done in terms with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act of 2015') as well as the Adoption Regulations 2022 (for short, 'the Regulations of 2022). It was further mentioned during the course of the hearing that this process can be only initiated if the respondent No.7 executes a Deed of Surrender and the petitioners submit an application in terms with Regulation 10 of the Regulations of 2022. The learned counsels for the petitioners as well as the respondent No.7 who were duly represented and keeping in mind the welfare of the child and an early resolution of the matter would result in the child who was taken away from the petitioners, the adoptive parents and is kept in the custody of the Child Welfare Committee can be with the petitioners agreed to submit the Deed of Surrender and to submit an application in terms with Regulation 10 of the Regulations of 2022. It is under such circumstances, this Court permitted the respondent No.7 as well as the petitioners to do the needful in that regard.

6. It may not be out of place at this stage to observe that this Court at that stage without going indepth on the merits and more particularly taking into consideration that the child has been in the custody of the Child Welfare Page No.# 6/11

Committee since 11.02.2024 and the matter requires an urgent resolution for the welfare of the child gave liberty to the petitioners as well as the respondent No.7 to act in terms with the said Act of 2015 and the Regulations framed thereinunder. The said approach on the part of this Court which the petitioners as well as the respondent No.7 adhered to, did not fructify as at each stage on account of complexities involved in the adoption in terms of the Act of 2015 and the Regulations, the matter was delayed. It is apposite herein to observe that the child is about 2(two) years and during this nascent stage, the child begins to walk, starts using basic words and exhibits growing independence. The child further shows affection, has separation anxiety and starts understanding simple commands. Therefore, taking into consideration the above aspects, it is therefore, necessary that the instant proceedings is decided at the earliest.

7. On 24.03.2025, when the matter was taken up, it was brought to the notice of this Court that the petitioners have adopted the child by following the mandate of the Act of 1956 and as such, there is no requirement for the purpose of following the mandate in terms with the Act of 2015. Considering the same, this Court had requested Mr. S Sahu, the learned counsel as to whether he would be inclined to assist this Court in the matter taking into account the adoption permissible under the Act of 1956 as well as the Act of 2015 and the Regulations framed therein. Mr. S Sahu, the learned counsel had agreed to assist this Court in that regard and accordingly, vide an order dated 24.03.2025, this Court appointed Mr. S. Sahu as the Amicus Curiae in the instant matter. The instant proceedings was fixed on 23.04.2025 so that the case could be heard. On the said date, it was informed by the learned Government Advocate for the respondent authorities that there was sufficient progress in the application filed Page No.# 7/11

by the petitioners for adoption before the State authorities and sought some time for an update. Accordingly, this Court fixed the matter on 14.05.2025. Unfortunately, there was nothing substantial placed before this Court on the said date.

8. The learned Amicus Curiae, Mr. S Sahu drew the attention of this Court to the provisions of Section 2(14) of the Act of 2015 and submitted that the child in question would not come within the purview of the said definition of " child in need of care and protection", taking into account that the adoptive parents were taking due care of the child and the adoption was made in terms with the Act of 1956. He further submitted that the provisions of the Act of 2015 would not apply in the instant case and in that regard drew the attention of this Court to Chapter VIII of the Act of 2015, and, more particularly, to Section 56 of the Act of 2015. The learned Amicus Curiae submitted that Sub-section (3) of Section 56 of the Act of 2015 makes it clear that the provisions of the Act of 2015, insofar as, adoption is concerned, shall not apply to adoption of children made under the provisions of the Act of 1956.

9. The learned Amicus Curiae further drew the attention of this Court to the provisions of the Act of 1956 and submitted that in the instant case an Adoption Deed was executed, that too, by the biological mother of the child, who was an adult and further the same has been done with the concurrence of her parents with whom she stays. The learned Amicus Curiae, therefore, submits that in terms with the Act of 1956 as the preconditions for a valid adoption was duly satisfied, the respondent authorities, more particularly the Officer-in-Charge of Khetri Police Station, could not have taken away the child from the petitioners, Page No.# 8/11

who were the duly adoptive parents as recognized under the law.

10. Mr. D Nath, learned Senior Government Advocate, Assam appearing on behalf of the respondent authorities submitted that steps were taken by the respondent authorities in view of a complaint being received that the mother was a POCSO victim and she was a minor. He submitted that on the basis of the said complaint, an FIR was lodged and the Investigating Officer took the custody of the child and handed over the child to the Child Welfare Committee and presently the child is receiving proper care.

11. This Court, taking into account the respective submissions further heard this matter on 15.05.2025 in detail. Taking into account the said submissions, this Court was of the opinion that it would be in the interest of the welfare of the child that this Court meets the biological mother as well as the adoptive parents for the further progress of the instant proceedings. Accordingly, this Court had fixed today for the purpose of taking up the instant proceedings in- camera.

12. In the foregoing paragraphs of the instant order, this Court has duly taken note of what transpired during the said interaction made with the biological mother of the child as well as the adoptive parents i.e. the petitioners. This Court had duly taken note of that after the birth of the child on 28.04.2023, the petitioners were handed over the child and thereupon the Deed of Adoption was executed. At the time of the execution of the said Deed of Adoption, the mother of the child was 20 years old and the same was done in presence of her Page No.# 9/11

parents, who were the witnesses to the said Deed of Adoption. This Court further finds it relevant to take note of that thereafter in the birth certificate of the child, on the basis of the Deed of Adoption, the names of the adoptive parents i.e. the petitioners have been duly mentioned. This Court has further taken note of the photographs of the child along with the adoptive parents which have been enclosed as Annexure-4 to the instant writ petition. This Court further takes note of the provisions of the Act of 1956 and, more particularly, Chapter II which relates to adoption. The petitioners herein admittedly are Hindus and the biological mother of the child is also a Hindu.

13. This Court further takes note of that the petitioners herein satisfies the mandate of Section 6, 7, 9, 10 and 11 of the Act of 1956. The photographs which have been enclosed as Annexure-4 to the instant writ petition and the interaction made by this Court personally with the biological mother of the child as well as the adoptive parents shows that there was actual physical act of giving and taking of the child in adoption by the mother of the child to the petitioners, which is further supplanted by the Deed of Adoption executed on 26.05.2023. Consequently, this Court is of the opinion that the adoption which has been made of the child i.e. Master Uday Sarkar by the petitioners is a valid adoption. Under such circumstances, the respondent authorities could not have taken away the child on the ground that the said adoption was not carried out in terms with the Act of 2015, more so, when Section 56(3) of the Act of 2015 makes it clear that the adoption mandated under the Act of 2015 shall not apply to the adoption of child under the Act of 1956. This Court duly took note of the submissions made by the learned Senior Government Advocate that the action was taken by the respondent authorities under a misapprehension that the Page No.# 10/11

mother of the child was a minor and, therefore, the child was in need of care and protection, for which, the respondent authorities had taken the custody of the child. However in view of the interactions made by this Court with the biological mother and the petitioners as well as the materials on record, the said apprehension no longer exists.

14. Consequently, this Court, therefore, is of the opinion that as the child i.e. Master Uday Sarkar has been adopted by the petitioners in accordance with the mandate of the Act of 1956, the same is a valid adoption. Under such circumstances, this Court, therefore, directs the respondent No.3 to hand over the custody of the child i.e. Master Uday Sarkar to the petitioners by tomorrow i.e. 21.05.2025 upon production of a certified copy of the instant order to the respondent No.3. This Court further directs the Registry to provide an urgent certified copy to the petitioners in that regard by tomorrow. A true copy of this order be also furnished by the Court Master of this Court to Mr. D Nath, the learned Senior Government Advocate, Assam so that on the basis thereof also the petitioners could be handed over the custody of the child at the earliest. The other Respondent authorities shall also ensure that the directions issued by this Court is also complied with.

15. In the foregoing paragraphs of the instant judgment, this Court had duly taken note of the circumstances under which the mother i.e. the respondent No.7 and the petitioners herein had executed the Deed of Surrender as well as file the application under the Regulations. The Deed of Surrender so executed by the respondent No.7 having been done so on a misconceived notion of law and with a view for an early resolution, the same shall not impact the valid Page No.# 11/11

adoption of the child by the petitioners. The subsequent action of issuance of a Certificate dated 18.03.2025 which is based upon the Deed of Surrender is also non est and shall not be acted upon. The filing of the application by the petitioners seeking adoption under the Act of 2015 is also rendered non est and would not affect the valid adoption by the petitioners of the child Master Uday Sarkar.

16. This Court expresses its deep gratitude to Mr. S. Sahu, the learned Amicus Curiae for his able assistance in the matter and commends upon his legal acumen which had resulted in an early resolution of the present dispute.

17. With the above observation(s) and direction(s), the instant writ petition stands disposed of.

JUDGE Comparing Assistant