Orissa High Court
Jyotirmoy Dutta And Another vs Union Of India And Others on 22 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM NO. 2 OF 2022
Jyotirmoy Dutta and another .... Petitioners
Mr. H.N. Tripathy, Advocate
-versus-
Union of India and others .... Opp. Parties
Mr. Amitav Pradhan,
Additional Standing Counsel
(For Opp. Party No.1)
Mr. Dillip Kumar Mishra,
Additional Government Advocate
(For Opp. Party Nos.2 & 3)
CORAM:
JUSTICE K.R.MOHAPATRA
ORDER
Order No.
22.02.2022
2. 1. This matter is taken up through hybrid mode.
2. The Petitioners in this RPFAM seek for a direction to set
aside the order dated 30th October, 2021 (Annexure-1) passed by
learned Judge, Family Court, Baripada in Adoption Misc. Case
No. 24 of 2018, whereby he dismissed the application holding that
the adoption in question cannot be allowed as the same does not
satisfy the requirements of Regulation-5 of the Adoption
Regulations, 2017 (for short 'the Regulations') framed under
Clause-3 of Section 2 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short 'the Act').
3. It is submitted by Mr. Tripathy, learned counsel that the
Petitioners being issueless contacted one Mr. Bijay Kumar Behera,
who was the then Member of Child Welfare Committee,
Mayurbhanj at Baripada-Opposite Party No.3 for adoption of a
child. After preliminary enquiry and on being satisfied about the
// 2 //
financial status, mental health and friendly environment at the house
of the Petitioners, they were appointed as Prospective Adoptive
Parents (PAP) of an orphan girl, namely, Tarana on 8th October,
2013. As per the provisions of the Act, the child was declared free
for adoption vide CWCM Order No.145 dated 23rd December, 2013.
The Petitioners also executed a bond in favour of the Child Welfare
Committee (CWC)-Opposite Party No. 3 to take care and protection
of the child, namely, Tarana. Initially, the child was placed with the
Petitioners for a period of sixty days and vide subsequent order, the
child was kept under the foster care of the Petitioners for a period of
240 days under the direct supervision of CWC-Opposite Party No.3.
Lastly, by order of the learned Judge, Family Court, Baripada, the
girl child (Tarana) was kept under the care and custody of the
Petitioners for her nourishment and well being. Since the child has
already attained the age to commence her studies, the Petitioners are
required to validly adopt the child. Accordingly, they had filed
W.P.(C) No. 14867 of 2015 for a direction to adopt the child. This
Court upon hearing learned counsel for the parties vide order dated
23rd November, 2017 disposed of the writ petition with the following
direction:
"It shall be open to the Petitioners or the
agency to approach the authority concerned for
adoption of the child by the Petitioners. In case such
an application is filed, the same shall be considered
under the relevant current regulations relating to
adoption and also the judgment of the Apex Court
rendered in the case of Stephanie Joan -v- State and
others, AIR 2013 SC 3495 and other relevant
decisions."
4. Accordingly, the Petitioners filed an application under
Section 58(3) of the Act before learned Judge, Family Court,
// 3 //
Baripada, which was registered as Adoption Misc. Case No.24 of
2018.
5. Learned Judge, Family Court, Baripada taking into
consideration different aspects of the mater although observed that it
has jurisdiction to entertain such an application, but in view of the
provisions of Section 57 of the Act and Regulation-5 of the
Adoption Regulations, 2017 refused to grant the prayer made by the
Petitioners vide impugned order under Annexure-1. Regulation-5 of
Adoption Regulations, 2017 reads as follows:
5. Eligibility criteria for prospective adoptive parents.- (1)
The prospective adoptive parents shall be physically, mentally
and emotionally stable, financially capable and shall not have
any life threatening medical condition.
(2) Any prospective adoptive parents, irrespective of his marital
status and whether or not he has biological son or daughter, can
adopt a child subject to following, namely:-
(a) the consent of both the spouses for the adoption shall
be required, in case of a married couple;
(b) a single female can adopt a child of any gender;
(c) a single male shall not be eligible to adopt a girl child;
(3) No child shall be given in adoption to a couple unless they
have at least two years of stable marital relationship.
(4) The age of prospective adoptive parents, as on the date of
registration, shall be counted for deciding the eligibility and the
eligibility of prospective adoptive parents to apply for children of
different age groups shall be as under:-
Age of the child Maximum composite age Maximum age of
of prospective adoptive single prospective
parents (couple) adoptive parent
Upto 4 years 90 years 45 years
Above 4 and upto 100 years 50 years
8 years
Above 8 and upto 110 years 55 years
18 years
(5) In case of couple, the composite age of the prospective
adoptive parents shall be counted.
// 4 //
(6) The minimum age difference between the child and either of
the prospective adoptive parents shall not be less than twenty-
five years.
(7) The age criteria for prospective adoptive parents shall not be
applicable in case of relative adoptions and adoption by step-
parent.
(8) Couples with three or more children shall not be considered
for adoption except in case of special need children as defined in
sub-regulation (21) of regulation 2, hard to place children as
mentioned in regulation 50 and in case of relative adoption and
adoption by step-parent.
6. Taking into consideration the aforesaid provisions of
Regulations, learned Judge, Family Court, Baripada rejected the
application as it did not satisfy the requirements of Regulation-5 of
the Regulations. Hence, this petition has been filed.
7. Mr. Tripathy, learned counsel for the Petitioners submits
that the Regulation Relaxation Committee constituted by the
authority has the power to relax the rigorous of the provisions of the
Regulations. Thus, taking into consideration the facts and
circumstances of the case, the requirements of Regulation-5 could
have been relaxed by the Regulation Relaxation Committee of the
authority. In that regard, the Petitioners has already made an
application, but the decision of the authority is awaited for which the
Petitioners more particularly the welfare of the child, namely,
Tarana, is affected. In view of the fact that the Petitioners have not
yet been declared as the adoptive parents of the child, they are not in
a position to admit the child in the school by obtaining necessary
adoption certificate. It is also submitted that for inaction of the
authority, the Petitioners have already filed CRLMP No. 3 of 2022,
which is pending for consideration before this Court.
// 5 //
8. Mr. Mishra, learned Additional Government Advocate
submits that unless the provision of the Regulations, as aforesaid, is
relaxed, the Petitioners may not get any relief.
9. Mr. Pradhan, learned counsel for the Union of India submits
that he will instruct the authorities to take appropriate action for
early consideration of the application, if any, made by the Petitioners
for relaxation of the provisions as per Regulation-60 of the
Regulations.
10. In view of the above, this Court disposes of this RPFAM
with a direction that the Opposite Party No.3 shall take up the matter
with the authority of Regulation Relaxation Committee for
necessary relaxation of the requirements of Regulation-5 to make
way for issuance of valid adoption certificate in favour of the child
(Tarana). This Court hopes and expects that such step shall be taken
as expeditiously as possible keeping in mind the best interest as well
as welfare of the child more particularly her academic career. The
Petitioners shall pursue the matter with CWC and appropriate
authority for early action. The Petitioners undertake to file a copy of
this order before the Chairman, CWC, Baripada to take prompt
action in the matter.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
bks
