Madras High Court
S.Stalin vs S.Ajin on 12 April, 2023
C.R.P(MD)No.842 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.842 of 2023
and
C.M.P(MD)No.3888 of 2023
1.S.Stalin
2.A.G.Latha Kumari ...Revision Petitioners/
Petitioners
Vs.
1.S.Ajin
2.R.Reka ... Respondents/Respondents/
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to direct the learned Principal District Court,
Kanyakumari District at Nagercoil to number the unnumbered
A.D.O.P.No.--- of 2022.
For Petitioner : Mr.M.R.Sreenivasan
ORDER
The petitioners have filed this Civil Revision petitioner under
Article 227 of Constitution of India to direct the Principal District Court,
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
Kanyakumari District at Nagercoil to number the unnumbered
ADOP.No... of 2022.
2. Originally, the petitioners had filed ADOP before the Family
Court, Nagercoil, on 07.06.2022 under Section 9(2) of the Hindu
Adoption and Maintenance Act, 1956. The ADOP was returned for
proper presentation before the Court within whose jurisdiction, the case
was to be filed.
3. Under these circumstances, the petitioners represented the
ADOP before the Principal District Court, Kanyakumari, on 07.08.2022.
4. ADOP has been now returned by the said Court pointing out
that under the notification issued under Juvenile Justice (Care and
Protection of Children) Act, 2015 as amended by Juvenile Justice (Care
and Protection of Children) Act, 2021, which came into force on
01.09.2022, the petitioners should represent the ADOP before the proper
authority.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
5. The learned counsel for the petitioner has also placed reliance
on a decision of the Kerala High Court in Thomas.P Vs State of Kerala,
which deals with an identical situation.
6. It is prayed that the Court may be directed to number the ADOP
filed by the petitioners under Section 9(2) of the Hindu Adoption and
Maintenance Act, 1956. Section 9(2) of the Hindu Adoption and
Maintenance Act, 1956 reads as under:-
"9 Persons capable of giving in adoption. —
(2) Subject to the provisions of 4 [sub-section (3) and sub-
section (4)], the father, if alive, shall alone have the right to give
in adoption, but such right shall not be exercised save with the
consent of the mother unless the mother has completely and
finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of
unsound mind."
7. Section 5 of the Hindu Adoption and Maintenance Act, 1956,
reads as under:-
"5.Adoptions to be regulated by this Chapter.-
(1)No adoption shall be made after the commencement of
this Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption made in
contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any
rights in the adoptive family in favour of any person which he or
she could not have acquired except by reason of the adoption,
nor destroy the rights of any person in the family of his or her
birth."
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
8. I have considered the arguments advanced by the learned
counsel for the petitioner.
9. I have also considered the decision of the High Court of
Telangana in the case of Kommuri Sriniwas and others Vs The State of
Telangana and others rendered in the context of the Hindu Adoption
and Maintenance Act, 2017. A specific reference is made to Paragraph
Nos.17 and 19, which reads as under:
"(17) In the light of the clear analysis and categorical
declaration of law by the Supreme Court as well as the High
Court of Delhi, High court of Kerala and the High Court of
Punjab and Haryana, in the absence of there being
unimpeachable and absolute material for the respondent
authorities to say that the adoption claimed by the petitioners
to be sham and not acceptable, is totally unreasonable and
arbitrary and without there being any basis. The
understanding of the authorities that 2017 Regulations would
apply with respect to every adoption and the adoptions can be
made only under the 2017 Regulations is only on account of
misinterpreting the provisions and on account of the improper
understanding of the width and scope of the Juvenile Justice
Act and Regulations vis-à-vis provisions of HAMA.
(19) The restrictive scope of Juvenile Justice Act, and
inapplicability of the same to the adoptions made under the
HAMA Act were noticed and elaborately dealt by a Division
Bench of Kerala High Court and the Punjab and Haryana
High Court, apart from the clear and ample guidance provided
in the judgment of the Supreme Court in M/s Shabnam Hashmi
v. Union of India AIR 2014 SC 1281. Further the Delhi High
court in PKH v. Central Adoption Resource Authority6 in
categorical terms held that a Hindu child who is offered and
accepted in adoption under Hindu Adoptions and Maintenance
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
Act, 1956, by no stretch of imagination, can be termed as a
surrendered child."
10. The decision was rendered after referring to the decision of the
Hon’ble Supreme Court in the case of Shabnam Hashmi Vs Union of
India and others. I have also perused the provisions of Juvenile Justice
(Care and Protection of Children) Act, 2000. The adoption under the
aforesaid Act was under specified circumstances therein. The Court held
as under:
"13. The JJ Act, 2000, as amended, is an enabling
legislation that gives a prospective parent the option of
adopting an eligible child by following the procedure
prescribed by the Act, Rules and the CARA guidelines, as
notified under the Act. The Act does not mandate any
compulsive action by any prospective parent leaving such
person with the liberty of accessing the provisions of the Act,
if he so desires. Such a person is always free to adopt or
choose not to do so and, instead, follow what he
comprehends to be the dictates of the personal law applicable
to him. To us, the Act is a small step in reaching the goal
enshrined by Articel 44 of the Constitution. Personal beliefs
and faiths, though must be honoured, cannot dictate the
operation of the provisions of an enabling statute. At the cost
of repetition we would like to say that an optional legislation
that does not contain an unavoidable imperative cannot be
stultified by principles of personal law which, however,
would always continue to govern any person who chooses to
so submit himself until such time that the vision of a uniform
Civil Code is achieved. The same can only happen by the
collective decision of the generation(s) to come to sink
conflicting faiths and beliefs that are still active as on date."
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
11. Juvenile Justice (Care and Protection of Children) Act, 2000
has been repealed. It has been replaced by Juvenile Justice (Care and
Protection of Children) Act, 2015. The right of adoption to a family to
adopt orphaned/abandoned and surrendered children is specified in
Juvenile Justice (Care and Protection of Children) Act, 2015. Sub
Section 3 to Section 56 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 makes it clear that the Act does not apply to
adoption of children made under the provisions of Hindu Adoption and
Maintenance Act, 1956.
12. The petitioners are attempting to legalise the adoption of their
niece as their child and have filed A.D.O.P. before the Family Court,
Kanyakumari, Nagercoil. The preamble of the petition that has been filed
by the petitioner indicates that the petitioners are filing A.D.O.P. under
Section 9 (2) of the Hindu Adoption and Maintenance Act, 1956.
13. Although, the Court has returned the A.D.O.P. by directing the
petitioner to approach the authorities under the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2015, the provisions of the
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
Juvenile Justice (Care and Protection of Children) Act, 2015 applies only
to an abandoned child, an orphan child and/or a surrendered child as
defined in Section 2 (1), 2 (42) and 2 (60) respectively of the Juvenile
Justice (Care and Protection of Children) Act, 2015. The child who has
been adopted vide Adoption Deed dated 30.06.2021 registered as
Document No.20 of 2021 before the Sub Registrar, Munchirai is not an
abandoned child or an orphan child or a surrendered child as defined in
Section 2 (1), 2 (42) and 2 (60) respectively of the Juvenile Justice (Care
and Protection of Children) Act, 2015. As mentioned above, adoption by
the petitioners is governed by the provisions of the Hindu Adoptions and
Maintenance Act, 1956. If at all it is open for the petitioner to invoke the
jurisdiction of the civil Court under Section 9 of C.P.C for declaring that
the petitioners have adopted the child in respect of which the petitioners
have also entered into the adoption deed with the parents of the child on
30.06.2021 vide registered Document No.20 of 2021 before the Sub
Registrar, Munchirai.
14. Therefore, I am inclined to dispose of the present civil revision
petition by giving liberty to the petitioners to workout their remedy under
Section 9 of C.P.C., before the Principal District Court, Nagercoil,
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
Kanyakumari District. The petitioners are given liberty to represent the
ADOP as a suit under Section 9 of C.P.C., before the Principal District
Court, Nagercoil, Kanyakumari District. The Principal District Court,
Nagercoil, Kanyakumari District, is directed to number the suit and
dispose of the same as expeditiously as possible preferably within a
period of 6 months from the date of receipt of copy of this order.
15. The present Civil Revsion Petition stands disposed of with the
above liberty. No costs. Consequently, connected miscellaneous petition
is closed.
12.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
Note: Registry is directed to return the
original impugned order copy to the
learned counsel for the petitioner.
To
1.The learned Principal District Court,
Kanyakumari District at Nagercoil
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.842 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)No.842 of 2023
12.04.2023
https://www.mhc.tn.gov.in/judis
