Bombay High Court
Nakul Anand And Timsy Anand (Adoptive ... vs Naina (Female Minor) on 10 April, 2024
Author: R. I. Chagla
Bench: R. I. Chagla
2024:BHC-OS:6476
Sonali Mane 1-IAP(L)-11379-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
AND
IN ITS GENERAL AND INHERENT JURISDICTION
INDIAN ADOPTION PETITION (L) NO. 11379 OF 2024
Nakul Anand
And
Timsy Anand .. Petitioners
(Adoptive Parents)
...
Mr. Jamsheed Master a/w Leanara Silveira i/b Desai Billimoria & Associates,
for the Petitioners.
Mr. O. Hareendran, Scrutiny Officer, Indian Council of Social Welfare present.
Mr. D.S. Gurav, Chamber Registrar present.
...
CORAM : R. I. CHAGLA J.
DATE : 10 APRIL 2024.
ORDER :
1) By this Indian Adoption Petition, the Petitioners (Adoptive Parents) are seeking the adoption of the female minor Naina ("the said female minor") born on 20 August 2013. The said female minor was born to a married couple Mr. Vijay Bhenwal and Mrs. Neeta Bhenwal. The Birth Certificate of the said female minor issued by the Municipal Corporation of Greater Mumbai is on record at page No. 77 to the Petition. Digitally signed by MANE MANE SONALI 1/11 SONALI DILIP DILIP Date:
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2) Since the biological parents were unable to take care of the said female minor owing to their constrained circumstances and poor financial conditions, they handed over the said female minor to the Petitioners on 8 October 2013 by executing a Deed of Adoption bearing the same date at Mumbai. The biological parents have expressed their desire in the Deed of Adoption to give the said female minor in adoption. The said Adoption Deed is registered before the Joint Sub Registrar, Mumbai City. The Deed of Adoption is on record at page Nos.65-98 to the Petition.
3) The Petitioners are working as Directors of Several Listed and Unlisted Companies and earn remuneration from the said companies. The Petitioners state that they have substantial annual income which would be able to cover all costs and charges for the upbringing of the said female minor Naina. Income tax returns of the Petitioners are on record at page Nos.17-64 to the Petition.
4) The passport and Adhar card of the Petitioner No.1 are on record at page Nos. 99-101 to the Petition. The passport and Adhar card of Petitioner No.2 are on record at page Nos.102-104 to the Petition.
5) The Petitioners have stated that they have emotional, financial and social capabilities and capacity to be declared as Adoptive Parents of the said female minor by this Court and need the order of adoption to be able to 2/11 ::: Uploaded on - 20/04/2024 ::: Downloaded on - 27/04/2024 02:10:25 ::: Sonali Mane 1-IAP(L)-11379-2024.doc manage her education and to provide for her. The Petitioners have stated that they understand that the adoption of the said female minor child will create a permanent parent - child relationship with her.
6) The Petitioners have stated that the conditions laid down under the Juvenile Justice (Care and Protection of Children) Model Rules (2 of 2016) read with The Juvenile Justice (Care and Protection of Children) Act, 2015 have been complied with in case of the proposed adoption.
7) The Petitioners state that the said female minor Naina has referred to herself and is known as Naina Anand in her passport as well as her Adhar card which are on record at page Nos. 105-108 to the Petition.
8) Mr. O. Hareendran, Scrutiny Officer has tendered Report/Representation of Indian Council of Social Welfare dated 9 April 2024, which is taken on record and marked "X" for identification. He has taken the view that the present Petition is erroneously filed under the provisions of the Juvenile Justice Act, 2015 as there is no provision of adopting a minor who is neither an inmate of a Recognized Indian Placement Agency nor a relative of the Petitioners as defined by the Rules and Regulations. He has opined that the Petitioners should file the Petition under the provisions of the Hindu Adoption and Maintenance Act, 1956 before the appropriate Court.3/11
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Sonali Mane 1-IAP(L)-11379-2024.doc 9) The learned counsel appearing for the Petitioners has placed
reliance upon the decision of the Division Bench of this Court in Parag Rughani and Anr. Vs. The State of Maharashtra and Ors.1, wherein the Division Bench of this Court has held in paragraph 13 that, the consequences of making an entry of the name of the adoptive father in the Register of Birth by replacing by name of the biological father without there being a finding of the competent Court regarding the validity of adoption can be drastic.
10) The learned counsel for the Petitioners has submitted that the filing for the present Adoption Petition is for declaring the Petitioners as Adoptive Parents of the said female minor as well as for directing the concerned Municipal Authorities/Birth Certificate issuing Authority to issue a Birth Certificate in the name of the said female minor, wherein the said female minor's name is mentioned as 'Naina Anand', born on 20 August 2013 and mentioning on the Petitioners names Nakul Anand and Timsy Anand as parents of the said female minor.
11) The learned counsel for the Petitioners has also relied upon the decision of the Karnataka High Court in Srivastsa M. Subodha and Ors. Vs. The Government of Karnataka and Ors. 2.. In the said decision the Karanataka High Court had considered in a similar case as the present. In 1 Writ Petition No. 13403 of 2016; decision dated 16 February 2017 2 Writ Petition No.6961 of 2023; decision dated 6 June 2023 4/11 ::: Uploaded on - 20/04/2024 ::: Downloaded on - 27/04/2024 02:10:25 ::: Sonali Mane 1-IAP(L)-11379-2024.doc that case an Adoption Deed had been executed by the biological parents evidencing adoption of the Second Petitioner as a daughter of Petitioner Nos.1 and 3. The Karnataka High Court considered the provisions of the Hindu Adoption and Maintenance Act, 1956 and in particular Section 12 thereof which provides for the consequences of the adoption; one of them being that the child loses its umbilical card with the biological parents and becomes child of the adoptive parents in all respects. In that case the Petitioners also sought the change of name of the adopted child and the Court observed that it is not unusual for the Adoptive Parents to rechristen the child. There were vehement submissions of the learned AGA appearing for the official Respondents that the request for change of the name in the Register of Births and deaths cannot be allowed as matter of course. This Court found is difficult to countenance these submissions. Accordingly this Court in the said decision allowed the Petition and directed the Second Respondent to effect to change of name of the Second Petitioner Naina in the Birth Register.
12) The learned counsel for the Petitioners has placed reliance upon this decision in support of his submission that the Court in the interest of the minor child can allow the change in name of the minor child in official records.
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Sonali Mane 1-IAP(L)-11379-2024.doc 13) The learned counsel for the Petitioner has also relied upon the
decision of this Court in Mayur Gopal Salian and Deviyani Kiran Varma 3, wherein this Court held that courts must do justice and equity and most of all Courts are in loco parentis, whose primary and only focus is the welfare of the Minor Child, cannot approach the matter with such rigidity, especially if that comes at the cost of the minor. In that case the said minor was under
legal guardian of the Petitioners since 17 January 2018 vide a Guardianship Order of that date. This Court in Doreen Theresa D'souza (Manuel Theresa D'souza-Petitioner), judgment dated 27 October 1999 passed by Justice F.I. Rebello J. (as he then was), held that a period of two years must elapse before the Court considers a Petition for adoption, and that period is to be reckoned from the date of the Order of guardianship. The present Petition had been brought before the expiry of that period. This Court had consider that there was no specific reason why the period should be two years and neither more nor less. Accordingly the Court held that there is no possible advantage to be gained by waiting for two years having regard to the facts of that case. The Petition was accordingly made absolute.
14) Having consider the averments in the Indian Adoption Petition as well as the decisions which have been relied upon by the learned counsel for the Petitioners and in particular the decision of this Court in Mayur 3 Indian Adoption Petition No. 32 of 2018 - decision dated 11 April 2018 6/11 ::: Uploaded on - 20/04/2024 ::: Downloaded on - 27/04/2024 02:10:25 ::: Sonali Mane 1-IAP(L)-11379-2024.doc Gopal Salin (supra) wherein this Court has held that the Courts are in loco parentis and whose primary and only focus is the welfare of the minor, cannot approach matters with such rigidity, especially if that comes at the cost of the minor. The present case has also must be approached be that in manner. In the present case the said female minor has been in custody of the Petitioners since 8 October 2013 i.e. shortly after her birth, having been born on 20 August 2013. The Petitioners have been looking after the welfare of the said female minor and their bonding is stated to be like parents and daughter and they consider the said female minor as their actually born daughter. Further, the Petitioners are well placed as Directors of Several Listed and Unlisted Companies and are earning substantial annual income which would be able to cover all costs and charges for the upbringing of the said female minor.
15) Another relevant factor to be considered is that the biological parents of the said female minor have by the Deed of Adoption dated 8 October 2013 expressed their willingness to give the said female minor in adoption to the Petitioners.
16) The reason given by the Petitioners for seeking such relief is that they need the orders of adoption to be able to manage the said female minor's education and to provide for her. They accordingly required the 7/11 ::: Uploaded on - 20/04/2024 ::: Downloaded on - 27/04/2024 02:10:25 ::: Sonali Mane 1-IAP(L)-11379-2024.doc change of name of the said female minor as 'Naina Anand', to be effected in the Birth Certificate for that purpose. Thus, the Petitioners are only looking at the welfare of the said female minor and the Adoption Petition has been filed for that purpose. I have also noted the submission of the Petitioners that the conditions laid down under the Juvenile Justice (Care and Protection of Children) Model Rules (2 of 2016) read with the Juvenile Justice (Care and Protection of Children) of Act, 2015 have been complied with in case of the proposed adoption. The necessary documents are on record and the health of the Petitioners as well as of the female minor are good. Further, there is emotional bonding between the Petitioners and the said female minor, considering that the said female minor is residing with the Petitioners since 2013. Accordingly, the relief in the Indian Adoption Petition requires to be granted.
17) The Division Bench of this Court in Parag Rughani & Anr. (supra) has observed that the consequences of making an entry of the name of the Adoptive Father in the Register of birth by replacing the name of the biological father without there being a finding of the Competent Court regarding the validity of adoption can be drastic. Accordingly such orders are required to be passed by this Court which is the Competent Court. Further, the Karnataka High Court in Srivastsa M. Subodha (supra) has considered that it is not usual for the Adoptive Parents to seek such re-christening. 8/11 ::: Uploaded on - 20/04/2024 ::: Downloaded on - 27/04/2024 02:10:25 :::
Sonali Mane 1-IAP(L)-11379-2024.doc 18) Accordingly, I do not find any merit in the objection raised by
Mr. O. Hareendran, Scrutiny Officer in report dated 9 April 2024 and/or that the Petitioners should file a Petition under the Hindu Adoption and Maintenance Act, 1956 before the appropriate Court. I consider this Court to be a Competent Court to pass such an Order under Guardians and Wards Act, 1890 read with the Juvenile Justice (Care and Protection of Children) Act, 2015 read with Regulation 52 (4) and 55 (2) of the Adoption Regulations.
19) Having considered the material on record, I am of the view that it would be in the interest of the said female minor child that she should be adopted by the Proposed Adopters.
20) It is relevant to note here that in the case of Nisha Pradeep Pandya alias Nisha Amit Gor and Anr. Vs. Union of India and Ors., 4 concerning challenge raised to the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021, the Division Bench of this Court on 10th January, 2023 passed an interim order. The relevant portion of said order of Division Bench reads as follows :
4
Writ Petition No.1085/2023 (Writ Petition (L) No.32065/2022 9/11 ::: Uploaded on - 20/04/2024 ::: Downloaded on - 27/04/2024 02:10:25 ::: Sonali Mane 1-IAP(L)-11379-2024.doc "8. In the meantime, there will be an ad-interim order only until the next date in terms of prayer clauses (d), (e)and (f) of the petition which reads as follows:
(d) Pending the final hearing and disposal of the present Petition, the Hon'ble Court may be pleased to stay the effect, implementation and purport of the letter dated 30th September, 2022 issued by Respondent No.2;
(e) Pending the final hearing and disposal of the present Petition, the Hon'ble Court may be pleased to direct the Respondents not to transfer pending adoption matters before the District Magistrates for adjudication.
(f) Pending the final hearing and disposal of the present Petition, the Hon'ble Court may be pleased to direct the Hon'ble Courts to continue with the adjudication of the adoption matters that are pending on their record and file.
9. Additionally, the safer and more prudent course of action would be to allow all matters to be placed before the learned Single Judge of this Court who is assigned those matters. Those orders may be continued to be passed until the challenge is finally decided."
21) Hence, it is clear that this Court can consider and dispose of the present Petition.
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Sonali Mane 1-IAP(L)-11379-2024.doc 22) In these circumstances, the Petition is allowed in terms of prayer
clauses (a) to (c) of the Petition, which read thus:
(a) This Hon'ble Court be pleased to declare the Petitioners as Adoptive Parents of the said female minor, Naina:
(b) The Prospective Parents be allowed to change the name of the Minor from Naina to Naina Anand, born on 20th August, 2013;
(c) The concerned Municipal Authority /Birth Certificate Issuing Authority be directed to issue a Birth Certificate in the name of the said minor child Naina, wherein the Minor's name is mentioned as 'Naina Anand', born on 20th August, 2013, stating thereon the Petitioner's names i.e. Nakul Anand and Timsy Anand as the Parents of the said minor;
23) Considering that the Adopted Child has been in the custody of the Adoptive Parents ever since her birth i.e. in the year 2013, and who have been looking after the welfare of the Adopted Child, it is necessity for them to be directed to invest any sum in the name of the Adopted Child.
24) The present Indian Adoption Petition is accordingly disposed of.
25) There shall be no order as to costs.
[R. I. CHAGLA J.]
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