Gujarat High Court
Soeb Jamalbhai Jethava vs Union Of India on 21 April, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/20768/2019 ORDER DATED: 21/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20768 of 2019
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SOEB JAMALBHAI JETHAVA
Versus
UNION OF INDIA
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Appearance:
MR Y J PATEL(3985) for the Petitioner(s) No. 1
MR. KSHITIJ M. AMIN, ADVOCATE for the Respondent(s) No.
1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 21/04/2023
ORAL ORDER
1. Heard Mr. Y.J. Patel, learned advocate appearing for the petitioner and Mr. Kshitij M. Amin, learned standing counsel appearing for the respondent- passport authority.
2. By way of the present petition, the petitioner herein has prayed for quashing and setting aside the impugned communication dated 07.02.2019 issued by the respondent no.2 and further prayed to direct the respondent no.2 to issue fresh / new passport in the name of the petitioner 'Soaeb Jamal Jethava' Page 1 of 6 Downloaded on : Sun Sep 17 18:44:56 IST 2023 NEUTRAL CITATION C/SCA/20768/2019 ORDER DATED: 21/04/2023 undefined as per the application made by the petitioner to the respondent no.2.
3. It appears that the said application came to be rejected by the respondent authority by impugned communication dated 07.02.2019, on the ground that the petitioner was not in receipt of an adoption order from the Court.
4. Mr. Y.J. Patel, learned advocate appearing for the petitioner submitted that the petitioner herein is in receipt of the valid adoption deed, which is produced at page-26. It was submitted that the case of the petitioner be considered by the respondent authorities, considering the said adoption deed. It was submitted that it is not in dispute that the petitioner herein is the adoptive father of the minor Soaeb and that all the other documents also are in the name of Soaeb Jamalbhai Jethava i.e. present petitioner.
5. Mr. Patel, learned advocate has placed reliance on the Aadhar Card at page-31, Election Card at page-32, Pan Card at page-33, License at page-34, APL-1 Card at page-35, School Page 2 of 6 Downloaded on : Sun Sep 17 18:44:56 IST 2023 NEUTRAL CITATION C/SCA/20768/2019 ORDER DATED: 21/04/2023 undefined Leaving Certificate at page-36, birth certificate at page-37, higher secondary school certificate at page-38.
6. Placing reliance on the aforesaid documents, it was submitted that the petitioner's case be considered and name of the petitioner be changed to Soaeb Jamalbhai Jethava in the passport of the petitioner.
7. Mr. Kshitij M. Amin, learned standing counsel appearing for the respondent - passport authority submitted that the application in question came to be rejected by the respondent authority on the ground that, though the petitioner is in possession of the valid adoption deed, the same is not a valid document under the Muslim Personal Law. In view of above, the request of the petitioner was not considered by the respondent authority. Mr. Amin, learned standing counsel further submitted that if the petitioner were to place on record a valid document / adoption deed, the same would be considered by the respondent authority in accordance with law, while considering all the other documents which are produced on record by the petitioner herein.
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8. At this stage, it is apposite to refer to the decision in the case of Shabnam Hashmi v/s. Union of India reported in AIR 2014 SC 1281, relevant para 5, 6, 7 and 11 reads thus:
"5. The JJ Act, 2000, however did not define 'adoption' and it is only by the amendment of 2006 that the meaning thereof came to be expressed in the following terms:
"2(aa)-"adoption" means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship"
6. In fact, Section 41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time the responsibility of giving in adoption was cast upon the Court which was defined by the JJ Rules, 2007 to mean a civil court having jurisdiction in matters of adoption and guardianship including the court of the district judge, family courts and the city civil court. [Rule 33 (5)] Substantial changes were made in the other sub-sections of Section 41 of the JJ Act, 2000. The CARA, as an institution, received statutory recognition and so did the guidelines framed by it and notified by the Central Govt. [Section 41(3)].
7. In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules, 2007 have been enacted. Chapter V of the said Rules deal with rehabilitation and social reintegration. Under Rule 33(2) guidelines issued by the CARA, as notified by the Central Government under Section 41 (3) of the JJ Act, 2000, were made applicable to all matters relating to adoption. It appears that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested by the JJ Act, 2000 most of the States have followed suit and adopted the guidelines issued by CARA making the same applicable in the matter of adoption within the territorial boundaries of the concerned State.
Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions regulating pre-adoption procedure i.e. for declaring a child legally free for adoption. The Rules also provide for foster care (including pre-adoption foster care) of such children who Page 4 of 6 Downloaded on : Sun Sep 17 18:44:56 IST 2023 NEUTRAL CITATION C/SCA/20768/2019 ORDER DATED: 21/04/2023 undefined cannot be placed in adoption & lays down criteria for selection of families for foster care, for sponsorship and for being looked after by an aftercare organisation. Whatever the Rules do not provide for are supplemented by the CARA guidelines of 2011 which additionally provide measures for post adoption follow up and maintenance of data of adoptions.
11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date."
9. Having considered the facts of the present case, undisputedly, the petitioner is adopted by adoptive father i.e. Jamalbhai Hajibhai Jethava, the parties follow Muslim Personal law and Muslim Personal Law does not acknowledge the adoption deed. Under the aforesaid facts and the position of law as referred above, once the petitioner herein were to have a valid Page 5 of 6 Downloaded on : Sun Sep 17 18:44:56 IST 2023 NEUTRAL CITATION C/SCA/20768/2019 ORDER DATED: 21/04/2023 undefined certificate under the Juvenile Justice Act, 2015 considering the law as laid down by the Hon'ble Supreme Court in AIR 2014 SC 1281 (supra) in accordance with law and all the documents as referred above, for the purpose of issuance of fresh / new passport in the name of the petitioner herein, the same be considered by the respondent authority. On receipt of such certificate, it is open for the petitioner to approach the respondent authority by filing a fresh application by producing all the documents as required for consideration of the same.
Once such application is preferred, the same be decided by the respondent authority as early as possible preferably within a period of 8 weeks from the date of such application/ representation.
The present petition stands disposed of, accordingly.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 6 of 6 Downloaded on : Sun Sep 17 18:44:56 IST 2023