Rajasthan High Court - Jaipur
Ms Deepika Modi D/O Late Shri Keshari ... vs Presiding Officer Family Court on 7 August, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.1591/2019
Ms Deepika Modi D/o Late Shri Keshari Chand Mode, Aged 38
Years, R/o Vishwakarma Mandir Ke Peeche, Nai Sadak, Churu
(Rajasthan).
----Appellant
Versus
1. Presiding Officer, Family Court, Tonk, Rajasthan.
2. Vimlesh Kumar, Superintendent, Government Juvenile &
Child Care Home, Tonk, Rajasthan.
----Respondents
For Appellant(s) : Smt. Naina Saraf
For Respondent(s) : Shri Ganesh Meena, AAG
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
07/08/2019
BY THE COURT : (PER HON'BLE DHADDHA, J.)
1.0 Heard on application (699/2019) filed u/s 5 of the Limitation Act.
1.1 For the reasons mentioned in the application, the same is allowed. Delay of 35 days in filing the appeal is condoned. The application (699/2019) stands disposed off.
2. This appeal has been filed by appellant Ms Deepika Modi against the order of the learned Family Court, Tonk passed on 24.1.2019 whereby the learned Family Court rejected the application filed u/s 58(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for shot "J.J. Act") with the direction to the appellant Ms Deepika Modi to hand over the foster (Downloaded on 29/08/2019 at 10:50:50 PM) (2 of 5) [CMA-1591/2019] care male child Krishna with immediate effect to the respondent No.2 Vimlesh Kumar, Superintendent, Government Juvenile & Child Care Home, Tonk who may get admitted the child in the Child Care & Protection of Specialized Adoption Agency, Tonk, in accordance with rules.
3. Brief facts giving rise to this appeal are that the appellant Ms Deepika Modi being single lady moved an application u/s 58(3) of the J.J. Act before the Central Adoption Resource Agency, Ministry of Women & Child Development, Government of India for adoption of child which was accepted on line with intimation that a male child is available for adoption at Juvenile Home Tonk. The appellant appeared in the meeting dated 15.11.2018 to take the child in foster care. Her application for foster care was accepted after due diligence and medical examination of herself and the child. The child was handed over to her. Since then the child was with the appellant. Thereafter, the appellant as requirement under the provisions of the J.J. Act, moved an application u/s 58(3). The said application was placed before the learned Family Court, Tonk which had been rejected by the court vide order dated 24.1.2019 observing that since no order for divorce decree had been passed, the appellant could not be considered as single parent of the child and therefore the adoption of the child could not be allowed. The review application filed u/s 114 read with O. 47 R. 1 and 2 of the Code of Civil Procedure for reviewing the order dated 24.1.2019, was also rejected by the learned Family Court vide order dated 13.3.2019.
4. Learned counsel for the appellant submitted that the impugned orders dated 24.1.2019 and 13.3.2019 are illegal and arbitrary. Learned counsel for the appellant submitted that the (Downloaded on 29/08/2019 at 10:50:50 PM) (3 of 5) [CMA-1591/2019] concerning authorities after due verification of the documents and and also adopting due process, allowed the appellant to take the child in foster care. Thereafter, Shri Vimlesh Kumar and Ms Deepika Modi, both moved an application before the learned Family Court. Learned counsel for the appellant submitted that in application for adoption, the appellant categorically stated that she had moved an application u/s 13B of the Hindu Marriage Act for divorce on the basis of mutual consent with her husband and she was waiting for divorce decree. She also submitted that an agreement entered into between her and her husband on 2.8.2018 was also filed before the learned Family Court in which they decided to take divorce. The learned counsel for the appellant submitted that the learned Family Court dismissed the application on the ground that without obtaining the decree of divorce, the appellant could not be considered as single parent of the child. The learned counsel for the appellant submitted that after obtaining the decree of divorce, the appellant moved an application u/s 114 read with O.47 R. 1 and 2 CPC for reviewing the order dated 24.1.2019. This application was also rejected by the learned Family Court without any good reason. The learned counsel for the appellant also submitted that the appellant had not concealed any material fact. She had developed love & affection towards the child and she is also taking proper care of him. So, the appeal be allowed and the impugned orders dated 24.1.2019 and 13.3.2019 be set aside.
5. Learned Additional Advocate General, Shri Ganesh Meena supports the orders passed on 24.1.2019 and 13.3.2019 by the learned Family Court. Learned Additional Advocate submitted (Downloaded on 29/08/2019 at 10:50:50 PM) (4 of 5) [CMA-1591/2019] that the learned Family Court has passed the orders in right perspective and the learned Family Court had had not committed any error in passing the orders. So, the appeal be dismissed.
6. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties, perused the impugned orders and the material available on record.
7. The learned Family Court dismissed the adoption application on the ground that without obtaining divorce decree, the appellant could not be considered as single parent. The appellant in her application specifically mentioned that she had moved an application u/s 13B of the Hindu Marriage Act with mutual consent for divorce decree and she was also waiting for divorce decree. After the impugned order dated 24.1.2019, she had obtained the divorce decree by mutual consent and then she became single parent. The learned Family Court has committed an error in dismissing the review application filed by the appellant. So, in these circumstances the appeal deserves to be allowed.
8. In the result, the appeal is allowed. The impugned orders dated 24.1.2019 and 13.3.2019 are set aside and the matter is remitted to the Family Court, Tonk for deciding the application of the appellant afresh taking into consideration the fact that in the meantime the appellant had obtained the decree of divorce from her husband by mutual consent under Section 13B of the Hindu Marriage Act. The parties to appear before the Family Court, Tonk on 2.9.2019. The learned Family Court is directed to decide the application within three months from that date. Till the Family Court decides the application, the custody of the child (Downloaded on 29/08/2019 at 10:50:50 PM) (5 of 5) [CMA-1591/2019] Master Krishna shall remain with the appellant pursuant to the interim order passed by this Court on 5.4.2019. (NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J RAJ KUMAR CHAUHAN /17/M53 (Downloaded on 29/08/2019 at 10:50:50 PM) Powered by TCPDF (www.tcpdf.org)