Punjab-Haryana High Court
Date Of Decision:23.10.2013 vs Union Of India And Another on 23 October, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Saluja Mukesh Kumar
CWP NO.18063 of 2013 1
2013.12.11 15:06
I attest to the accuracy and
integrity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP NO.18063 of 2013
Date of decision:23.10.2013
Damanpreet Kaur and others
...Petitioner(s)
Versus
Union of India and another
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.D.S.Sandhu, Advocate,
for the petitioners.
RAMESHWAR SINGH MALIK, J. (Oral)
The present writ petition is directed against the order dated 15.7.2013 (Annexure P-5) passed by respondent No.2 requesting petitioners No. 2 and 3 to seek the custody of minor from the court of competent jurisdiction and also the permission to take the child out of the country under particulars of step father-petitioner No.2. A writ of mandamus is also sought directing the respondents to issue a fresh passport to petitioner No.1 with the name of adoptive father in place of biological father issuing appropriate directions.
Facts first.
Petitioner No.3 was married with Pardeep Singh on 17.11.2003. Out of that wedlock, petitioner No.1 was born on 28.8.2004. Thereafter, petitioner No.3 filed a divorce petition under Section 13 of the Hindu Marriage Act against Pardeep Singh. He did not appear and was proceeded against ex-parte. Petitioner No.3 led her ex-parte evidence and based on Saluja Mukesh Kumar CWP NO.18063 of 2013 2 2013.12.11 15:06 I attest to the accuracy and integrity of this document that she was granted divorce vide judgment and decree dated 3.12.2010 (Annexure P-1), incorrectly typed as 3.12.2012 at page 26 of the paper- book. Petitioner No.3, thereafter married with petitioner No.2 Harpreet Singh on 2.1.2012 and their marriage certificate is Annexure P-2. Petitioner No.3 suffered adoption deed (Annexure P-3) dated 16.11.2012 giving her daughter Damanpreet Kaur-petitioner No.1 in adoption to her present husband Harpreet Singh-petitioner No.2.
Thereafter, on the strength of adoption deed, petitioners sought the change of name of father of petitioner No.1 from her biological father, i.e. Pardeep Singh aforementioned to adoptive father-petitioner No.2 Harpreet Singh in her passport, which was issued on 11.5.2011. However, on the alleged refusal by respondent No.2 to oblige the petitioners, they approached this Court by way of CWP No.23344 of 2012. It was disposed of vide order dated 23.5.2013 (Annexure P-4) permitting the petitioners to approach respondent No.2 and he was directed to take final decision on their request. In compliance of the order dated 23.5.2013 passed by this Court, the impugned order dated 15.7.2013 (Annexure P-5) came to be passed by respondent No.2. Hence, this writ petition.
Learned counsel for the petitioners submits that respondent No.2 acted in arbitrary manner while passing the impugned order (Annexure P-5) because he was bound to accept the adoption deed (Annexure P-3) to be a valid document and ought to have changed the name of the father of petitioner No.1 from her biological father to her adoptive father. He further submits that under Section 16 of the Hindu Adoption and Maintenance Act, 1956 (`the Act' for short), adoption deed (Annexure P-3) was bound to be accepted as it is, by respondent No.2 and he had no authority to question the Saluja Mukesh Kumar CWP NO.18063 of 2013 3 2013.12.11 15:06 I attest to the accuracy and integrity of this document validity thereof, directing petitioner No.3 to seek the custody of child from the court of competent jurisdiction. In such a situation, respondent No.2 ought to have issued passport in the name of petitioner No.1 showing petitioner No.2 as her father. He prays for setting aside the impugned order by allowing the present writ petition.
Having heard the learned counsel for the petitioner at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that the present one is not a fit case warranting any interference at the hands of this Court while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record that marriage between petitioner No.2 and petitioner No.3 took place on 2.1.2012, which was registered vide marriage certificate dated 5.1.2012 (Annexure P-2). The pivotal question that falls for consideration of this Court is whether petitioner No.3 was competent to give her daughter, from the loins of her previous husband in adoption to her present husband. The relevant provisions in this regard are contained in Section 9 of the Act and the extract thereof reads as under:-
"9. Persons capable of giving in adoption- (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:
Provided that such right shall not be exercised by either of them Saluja Mukesh Kumar CWP NO.18063 of 2013 4 2013.12.11 15:06 I attest to the accuracy and integrity of this document save with the consent of the other unless one of them 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.
(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
Explanation- For the purposes of this section-
(i) the expressions "father" and "mother" do not include an adoptive father and an adoptive mother,"
Section 11 (vi) of the Act is also relevant, which reads as under:-
"11. Other conditions for a valid adoption- In every adoption, the following conditions must be complied with:
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption.
A combined reading of above-said relevant provisions of law would show that since petitioner No.3 was not competent to give her Saluja Mukesh Kumar CWP NO.18063 of 2013 5 2013.12.11 15:06 I attest to the accuracy and integrity of this document daughter in adoption to her present husband without the consent of her previous husband, he being the natural father of the child-petitioner No.1, respondent No.2 committed no error of law while passing the impugned order particularly when the decree of divorce (Annexure P-1) was an ex parte decree. Having said that, this Court feels no hesitation to conclude that respondent No.2 was justified in law in passing of the impugned order.
Ex-parte decree of divorce apart, status of Pardeep Singh as natural father of petitioner No.1, will not undergo any change. Admittedly, consent of natural father was not taken by petitioner No.3 while giving her daughter petitioner No.1, in adoption to her present husband. Provisions of Section 9 of the Act do not entitle petitioner No.3 to suffer the adoption deed (Annexure P-3) without the consent of her previous husband. He was the natural father and his right to give or not to give his consent for giving his daughter in adoption cannot be ignored. This can be the only interpretation of the provisions of Section 9 reproduced here-in-above and any other interpretation would run counter to the scheme and object of the Act.
Further, another mandatory condition for a valid adoption provided in the above-said provisions of Section 11 (vi) of the Act is missing in the present case. The reason is obvious. Transfer of the child- petitioner No.1 does not seem to be intended from the family of her birth to the family of her adoption because mother-petitioner No.3 remains the same. Thus, the adoption in question is contrary to the canons of law.
It is neither pleaded nor argued case on behalf of the petitioners that natural father of petitioner No.1 has finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent Saluja Mukesh Kumar CWP NO.18063 of 2013 6 2013.12.11 15:06 I attest to the accuracy and integrity of this document jurisdiction to be of unsound mind. In such a situation, petitioner No.3 alone was not competent to suffer the adoption deed.
The golden rule of interpretation is that it has to be based on a meaningful and harmonious construction. Legislative intent behind framing of any statute and a particular provision therein is the most relevant factor to be kept in view. Each word has its own purposeful meaning. No coma or full stop or semicolon is superfluous in any piece of legislation, unless proved otherwise. When the provisions of Section 9 (1), (2) and proviso thereto are put together, a conjoint reading thereof will leave no room for doubt that although, the mother has equal right to give a son or daughter in adoption but she can exercise her right to give a son or daughter in adoption only with the consent of her husband unless he has completely and finally renounced the world or has ceased to be a Hindu or has been declared by the court of competent jurisdiction to be of unsound mind. In the present case, father of petitioner No.1 was very much alive but the mother, i.e. petitioner No.3 herein exercised her right giving her daughter in adoption without even making an effort to seek the consent of father of petitioner No.1. Thus, the adoption deed in question was clearly in contravention of the provisions of Section 9 of the Act.
The legislative intent is crystal clear while making provisions of Section 11 of the Act. Emphasis has been laid while using the word must in the very first sentence and in clauses (i), (ii) as well as clause (vi) reproduced hereinabove. Further, the legislature in its wisdom has used the word parents which would mean both father and mother. Referring to the proviso added to Section 9(2) of the Act, even if out of both the parents one is giving the child in adoption, the consent of the other is must. It is neither Saluja Mukesh Kumar CWP NO.18063 of 2013 7 2013.12.11 15:06 I attest to the accuracy and integrity of this document the pleaded nor argued case of the petitioners that natural father of petitioner No.1 was not alive or has suffered one of the disqualifications envisaged under Section 9 of the Act. Once the father was very much alive and has not suffered any of the disqualification provided under Section 9 of the Act, it was obligatory on the part of the mother-petitioner No.3 to seek consent of the father of petitioner No.1 before exercising her right to give her daughter in adoption. Since petitioner No.3 has failed to do so for the reasons best known to her, the adoption in question was illegal on the face of it.
This matter can be tested from another angle. Petitioner No.3 by suffering the adoption deed in question has also taken away the right of petitioner No.1 claiming her share in the property of Pardeep Singh, her natural father. Petitioner No.3 was not competent and entitled to do so by suffering the adoption deed which is void ab initio for this reason also.
The view taken by this Court also finds support from the judgment of Delhi High Court in Teesta Chattoraj v. Union of India, 2012 (188) DLT 507 which was also a petition under similar circumstances challenging the order issued by Regional Passport Officer, New Delhi declining to issue a passport under similar circumstances. In that case, the decree of divorce was by mutual consent and the father of petitioner had admitted that he would have no right to see the child for all times to come and he will not interfere in any manner regarding bringing up the child and will have no right to claim and/or demand for custody of the child from mother.
Later on, the mother married again and gave the petitioner in adoption to her husband, exactly similar situation as in the present case. Saluja Mukesh Kumar CWP NO.18063 of 2013 8 2013.12.11 15:06 I attest to the accuracy and integrity of this document Petitioner applied for the passport through her mother, as in the present case. Thus, the judgment in Teesta Chattoraj's case (supra) was very close to the facts of present case. While dismissing the writ petition, the Delhi High Court observed as under:-
"From the aforesaid reading, it is clear that both parents of a child, if alive, have equal right to give the child in adoption. Therefore, the right of the petitioner's mother, Smt. Rajeshwari Chattoraj to give the petitioner in adoption cannot be questioned. However, the law is very clear that such right cannot be exercised by either of the parents of the child "save with the consent of the other, unless one of them has deliberately 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." Consequently, the consent of the petitioner's natural father was required to give the petitioner in adoption to Surojit Chattoraj. However, such consent would not be necessary if the petitioner's natural father had, inter alia, "finally renounced the world".
Similarly, Calcutta High Court in Chandra Nath Sadhu and others v. The State of West Bengal and others, 2003 (2) HLR 267, observed as under:-
"......Even after divorce the respondent No. 5 remains the natural father of the petitioner No. 2 and, therefore under Sub- section (2) of Section 9 of the Hindu Adoptions and Maintenance Act, 1956 he alone had and has the right with the consent of the mother to give the writ petitioner No. 2 in Saluja Mukesh Kumar CWP NO.18063 of 2013 9 2013.12.11 15:06 I attest to the accuracy and integrity of this document adoption subject to the provisions of Sub-section (3) and Sub- section (4) of Section 9 of the Hindu Adoptions and Maintenance Act 1956. This Court is of the opinion that Sub- section (3) and Sub-section (4) of Section 9 of the Hindu Adoptions and Maintenance Act, 1956 have no manner of application in the facts and circumstances of the present case. In the facts and circumstances of the case the respondent No. 4 was not competent to give the petitioner No, 2 in adoption because the respondent No. 5, the natural father of the petitioner No. 2, is neither dead nor has completely and finally renounced the world nor has ceased to be a Hindu nor has been declared by a Court of competent jurisdiction to be of unsound mind. Sub-sections 1, 2 and 3 of Section 9 of the Hindu Adoptions and Maintenance Act, 1956, if harmoniously read, then it is clear that when a natural father is not dead or has not completely and finally renounced the world or has not ceases to be a Hindu or has not been declared by a Court of competent jurisdiction to be of unsound mind than the natural mother cannot exercise the right and capacity to give the child in adoption."
Denying to issue a writ in the nature of mandamus in the similar situation, Division Bench of this Court in Harjit Singh and others v. Union of India and another, 1991 (1) PLR 403 made the following observation in para 11 of the judgment, which can be gainfully followed in the present case and the same read as under:-
"The Passport authority was within its right to examine the Saluja Mukesh Kumar CWP NO.18063 of 2013 10 2013.12.11 15:06 I attest to the accuracy and integrity of this document applications of the minor-petitioners to reach a conclusion, whether they had given correct particulars. For the purpose, it could examine if the minor-petitioners were validly adopted sons of the persons who claimed to have adopted them. Since the facts, which were considered by the Passport authority in coming to the conclusion, were not disputed and the provisions making the adoption to be invalid were apparent on record, the action of the Passport authority cannot be challenged. We, thus, hold that no case is made out for issuance of a writ of mandamus in the writ jurisdiction."
Again, the Gauhati High Court, in the case of Koijam Suraj Singh v. Yengkhem Ongbi Barni Devi and others, 2005 AIHC 1510 held that once the father was alive at the time of adoption, mother was not competent to give her child in adoption without the consent of father and the adoption was held to be void ab initio being contrary to the provisions of Section 9(2) of the Act.
Reverting back to the facts of the present case and respectfully following the law laid down in the judgments of different High Courts, referred to here-in-above, it is unhesitatingly held that petitioner No.3 was not competent to give petitioner No.1 in adoption to petitioner No.2 without the consent of natural father of petitioner No.1. Thus, the adoption in question was not in accordance with the provisions of the Act. In this view of the matter, it is held that the Regional Passport Officer-respondent No.2 proceeded on correct approach while passing the impugned order and the same deserves to be upheld.
So far as the argument raised by the learned counsel for the Saluja Mukesh Kumar CWP NO.18063 of 2013 11 2013.12.11 15:06 I attest to the accuracy and integrity of this document petitoner based on Section 16 of the Act is concerned, the same has been found to be without any merit. The presumption provided under Section 16 of the Act is not absolute but it is always rebuttable. The glaring facts of the present case were sufficient to rebut the presumption under Section 16 of the Act. It is the own pleaded case of the petitioners that under Section 10 (A) of Schedule III of the Passport Act, 1967, the very first condition in the case of adoptive children was a valid adoption deed registered as per Indian Laws, as reproduced in para 10 of the writ petition.
In view of the above, it is held that the impugned order has not been found to be suffering from any vice of arbitrariness particularly when respondent No.2 has only advised the petitioner to comply with the provisions of law, by observing as under:-
"This has the reference your CWP No.23344 of 2012 titled as Damanpreet Kaur and others v/s State of Punjab and another filed in the Hon'ble High Court of Punjab and Haryana, Chandigarh and their orders thereon vide which we were directed to consider your request and take final decision on the same as expeditiously as possible.
In this behalf, we have to inform you that Amandeep Kaur obtained divorce under H.M. Act Case No.61 on 03.12.2010 from the Hon'ble Court of Shri M.S.Virdi, District Judge, Kapurthala u/s 13 of the Hindu Marriage Act, 1955. While applying fro divorce under Hindu Marriage Act the custody of Damanpreet Kaur, minor was not taken from the said court. Neither you obtained the guardianship of the minor, to the exclusion of the natural father Pardeep Singh. The minor Saluja Mukesh Kumar CWP NO.18063 of 2013 12 2013.12.11 15:06 I attest to the accuracy and integrity of this document was given in adoption after your marriage with Shri Harpreet Singh.
In view of this, we have to advise you to kindly obtain the custody of minor and guardianship of the child of the minor from the court of competent jurisdiction with the permission to take the child outside of the country under particulars of step father Harpreet Singh."
As a sequel to the discussion of factual as well as legal aspect of the matter, in the foregoing paragraphs, it is held that respondent No.2 was well within his jurisdiction to pass the impugned order. He committed no error of law while passing the impugned order and the same deserves to be upheld.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the instant writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
However, it goes without saying that as and when the petitioners will furnish the requisite documents in compliance of the impugned order passed by respondent No.2, while submitting their appropriate application meeting out the relevant provisions of law contained in the Passport Act, respondent No.2 shall consider and decide the same by passing an appropriate order thereon, in accordance with law.
Resultantly, with the observations made and directions issued as hereinabove, the present writ petition stands dismissed, however, with no order as to costs.
23.10.2013 (RAMESHWAR SINGH MALIK) mks JUDGE