Custody Dispute| "Unfortunate Case At The Centre Of Which Is A Minor Aged 2 Years": Bombay HC Directs Child To Remain With Adoptive Parents Till Final Adjudication
|The Bombay High Court in a case relating to adoption has observed that it is one of the unfortunate cases at the centre of which is a minor child of two years. It has directed that the child shall remain with adoptive parents till the final adjudication of the suit.
The Court was dealing with a writ petition filed by the adoptive parents against the biological parents.
A Single Bench of Justice Sharmila U. Deshmukh said, “This is one of the unfortunate cases at the centre of which is a minor child aged 2 years. … In wake of the factual position that the child is with the adoptive parents from last two years since he was two days old, the child to remain with the adoptive parents till the final adjudication of Short Cause Suit No.2830 of 2022.”
The Bench also directed that the Trial Court shall decide the suit expeditiously within a period of six months.
“Considering the sensitivity of the matter, the trial Court is directed to decide Short Cause Suit No.2830 of 2022 expeditiously and in any event within a period of six months from today. It is made clear that no extension of time will be granted”, said the Bench.
Advocate Sneha Phense appeared for the petitioners while Advocate Edith Dey appeared for the respondents.
In this case, the adoptive parents/petitioners claimed that the biological parents/respondents gave the child in adoption and executed deed of adoption which was disputed by the biological parents. The minor child was with the adoptive parents from the time he was two days old and an Adoption Petition was preferred which was rejected.
The review preferred against the order of dismissal was rejected and vide order passed in Miscellaneous Application, the City Civil Court, Greater Mumbai directed the custody of minor child to be handed over to the biological parents. In the writ petition before the High Court, the dismissal of adoption petition, the dismissal of review petition and the order passed in miscellaneous application directing the handing over of custody of minor child was challenged by the petitioners.
The High Court after considering the submissions made by the counsel noted, “In my view, there was no necessity of filing the adoption petition as the provisions of sub-section (4) of Section 9 of HAMA are not applicable to the facts of present case. Considering that the biological parents had taken objection to the adoption on the ground that the documents were executed without reading, explaining and understanding consequences and had disputed the adoption, the appropriate course would have been to direct the parties to file substantive suit so that the matter can be adjudicated by leading evidence to establish that the conditions of valid adoption were satisfied.”
The question that arose for consideration before the Court was, whether the child was actually given and taken in adoption with intent to transfer the child from one family to the other, as there was no dispute about the capability of the parties to give and take the child in adoption.
“The Apex Court by considering various decisions had held that there cannot be a valid adoption unless the adoptive child is transferred from one family to another and that can be done only by ceremony of giving and taking and to achieve this object it is essential to have a formal ceremony. It is further observed that no particular form is prescribed but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him”, said the Court.
The Court further noted that the provisions of HAMA (Hindu Adoption and Maintenance Act) do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. It said that in this case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption.
“In my opinion, the impugned order which rejects the petition on the ground of absence of consent without noticing the provisions of Section 15 of HAMA which provides that no valid adoption can be cancelled cannot be sustained. … There are no submissions canvassed in respect of the order passed in the review petition. In any event, the same will not be required to be dealt with in view of the directions which I propose to pass”, held the Court.
The Court added that in any case, the government circulars cannot override the statutory provisions and the circulars have been issued to facilitate the registration of births and issuance of birth certificate in respect of adopted child.
“In any case the government circulars cannot override the statutory provisions and the circulars have been issued to facilitate the registration of births and issuance of birth certificate in respect of adopted child”, observed the Court.
Accordingly, the High Court disposed of the writ petition and set aside the orders passed in adoption petition.
Cause Title- Jeetendra Gorakhnath Singh & Anr. v. Yash Suresh Malani & Anr. (Neutral Citation: 2023:BHC-AS:23594)