Calcutta High Court
Sri Chandra Nath Sadhu And Ors. vs The State Of West Bengal And Ors. on 23 May, 2003
Equivalent citations: (2003)3CALLT1(HC), I(2004)DMC359
JUDGMENT D.P. Kundu, J.
1. In this writ proceeding, as appears from the cause title of the writ application, the writ petitioners are "(1) Sri Chandra Nath Sadhu, son of Jatirindra Nath Sadhu, of Masterpara, P.O. Tribeni, District: Hooghly, at present residing at 62, Benimadhabtala, Post Office: Tribeni, Police Station: Mogra, District: Hooghly and (2) Sri Subham Laha, being minor represented by his adoptee father Chandra Nath Sadhu, residing at 62, Benimadhabtala, Post office: Tribeni, P.S.: Mogra, District: Hooghly". The respondent No. 4 in the writ application is Smt. Sutapa (Laha) Sadhu, daughter of Jatirindra Nath Sadhu, 62, Benimadhabtala, Post office: Tribeni, Police Station: Mogra, District: Hooghly. The respondent No. 4 is the natural mother of the writ petitioner No. 2. The writ petitioner No. 1 claims to be the adoptive father of the writ petitioner No. 2.
2. On 24.3.2003 this Court passed the following order:
"Leave granted to the learned advocate for the petitioner to add the name of Santanu Laha son of Late Jagat Laha of Barasat, 34, Dasabhujatala, Chandernagore, P.O. & P.S. Chandernagore, District: Hooghly as added respondent No. 5 here and now.
The petitioner is directed to serve copy of the writ application upon the added respondent No. 5 within 7 days from today and file affidavit of service thereto showing actual service on the next date.
Let the matter stand adjournment for 10 days and appear in the list on 4.4.2003 under the heading Special Fixed Listed Motion".
3. Thereafter Shri Santanu Laha, respondent No. 5 was added as respondent in the writ petition. The respondent No. 5 is the natural father of the writ petitioner No. 2. From the affidavit-of-service affirmed by Shri Dilip Sadhu on 4.4,2003 it appears that the respondent No. 5 has been served with a notice dated 25.3.2003 issued by Smt. Sanghamitra Nandy, advocate for the writ petitioners alongwith a copy of the writ application. In spite of such service the respondent No. 5 chose not to appear and contest this proceeding.
4. The respondent No. 4 and the respondent No. 5 married each other and the marriage between the respondents No. 4 and 5 was solemnised according to Hindu rites and customs on 5.2.1996. Out of the wedlock of the respondents No. 4 and 5 the writ petitioner No. 2 Shri Subham Laha was born on 10.10.1998. Admittedly even now the writ petitioner No. 2 is a Hindu minor. Section 6 of the Hindu Minority and Guardianship Act, 1956 reads as follows:
"Natural Guardians of Hindu minor.--The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
(a) In the case of a boy or unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinary be with the mother;
(b) In the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) In the case of a married girl--the husband;
provided that no person shall be entitled to act as the natural gurardian of a minor under the provisions of this section-
(a) If he has ceased to be a Hindu, or
(b) If he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (yati or sanyasi)"
5. Thus according to Section 6 of the Hindu Minority and Guardianship Act, 1956, in case of the writ petitioner No. 2, who is a Hindu minor boy, natural guardians are respondent No. 5, the natural father and after him the respondent No. 4, the natural mother.
6. Unfortunately the relationship between the respondents No. 4 and 5 had come to a stage that it was not at all possible for them to live together as husband and wife any more. The respondent No. 4 and the respondent No. 5 jointly presented a petition under Section 13B of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce by mutual consent.
7. Paragraph 9 of the aforesaid petition under Section 13B of the Hindu Marriage Act, 1955 reads as follows:
"That the petitioner and the co-petitioner both have resolved that the co-petitioner Smt. Sutapa Laha nee Sadhu shall be the natural guardian of her son Subham Laha. The co-petitioner Smt. Sutapa Laha nee Sadhu shall also be entitled to the custody of minor Subham Laha and also be entitled to do all acts for welfare and well being of Subham Laha."
8. By an order No. 4 dated 13.12.2001 passed by the learned District Judge, Hooghly, in Mat Suit No. 300 of 2000 the marriage between respondents No. 4 and 5 was dissolved by a decree of divorce on consent. The aforesaid order No. 4 dated 13.12. 01 passed in Mat Suit No. 300 of 2000 reads as follows:
"Order No. 4 dated 13.12.2001:
The application under Section 13B of Hindu Marriage Act is moved by the parties. Attempt for a reconciliation having failed, the application is taken up for final hearing. Petitioner No. 1-Santanu Laha and petitioner No. 2-Sutapa Laha are examined as PWs 1 and 2 respectively. None of the witnesses is cross-examined. Heard learned lawyers of the parties. The parties were married as per Hindu rites and customs on 5.2.1996. For mal adjustment the parties have been living separately since 3.8.1998. It is submitted by them that they are not in a position to reconcile and, therefore, they pray for dissolution of their marriage on consent.
Upon consideration of the facts and circumstances and the evidence adduced by the parties, I am of the view that there has been an irretrievable break down of the marriage and for that the marriage should be dissolved by a decree of divorce on consent as prayed for.
Hence, Ordered that the application under Section 13B of Hindu Marriage Act is allowed on consent. The marriage solemnised by and between the parties as per Hindu rites and customs on 5.2.1996 is hereby dissolved by a decree of divorce on consent.
Dictated & corrected by me.
Sd/- S.K. Datta District Judge, Hooghly.
Sd/- S.K, Datta District Judge, Hooghly".
In the application under Section 13B of the Hindu Marriage Act, 1955 the following prayer was made:
"It is prayed that Your Honour may be pleased to pass an order of divorce on mutual consent under Section 13B of the Hindu Marriage Act and be further pleased to pass such other order/orders as Your Honour may deem fit and proper."
9. In this writ proceeding this Court is not deciding the question of custody of the writ petitioner No. 2.
10. On 9th February, 2002 a Deed of Adoption was executed in the District Sub-registry Office at Hooghly and by the said Deed of Adoption the writ petitioner No. 1 claims to have become the adoptive father of the writ petitioner No. 2. The writ petitioner No. 1 and the respondent No. 4 are the brother and sister. Annexure-'P-3' of the writ application is a copy of the Deed of Adoption. It is evident from the said Deed of Adoption that respondent No. 5, the natural father was not a signatory in the said Deed of Adoption. There is nothing in the said Deed of Adoption to indicate that respondent No. 5, the natural father, consented or permitted to give the petitioner No. 2 in adoption. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 lays down the provisions regarding persons capable of giving in adoption. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows:
"9. Person capable of giving in adoption--(1) No person except the father or mother or the gurardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of [Sub-section (3) and Sub-section (4)1 the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.
(3) The mother may give the child in adoption if the father is dead or 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.] (5) Before granting permission to a guardian under Sub-section (4), the Court shall be satisfied that the adoption will be for the welfare of the child due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the application for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the Court may sanction".
11. It is true that even after service of the writ application upon respondent No. 5, the respondent No. 5 chose not to contest. But that will not validate the adoption of the petitioner No. 2 by the petitioner No. 1 if the adoption is Invalid in view of the provisions of the Section 5 read with the Section 9 of the Hindu Adoptions and Maintenance Act, 1956, Section 5 of the Hindu Adoptions and Maintenance Act, 1956 is set out herein below:
"5. Adoption to be regulated by this Chapter--(1) No adoption shall be made after commencement of this Act by or to a Hindu except in accordance with the provisions contained in this chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth".
12. It is nobody's case that the respondent No. 5, who is the natural father of the writ petitioner No. 2, is dead or 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. Under the circumstances, respondent No. 5, the natural father of the writ petitioner No. 2, alone had and has the right and capacity to give the petitioner No. 2 in adoption. But the respondent No. 5 was and is not entitled to exercise such right and capacity save with the consent of respondent No. 4, the natural mother.
13. The learned advocate for the writ petitioners argued that paragraph 9 of the petition under Section 13B of the Hindu Marriage Act, 1955 read with the order No. 4dated 13.12.2001 passed in Mat Suit No. 300 of 2000 empowers the respondent No. 4 to give the writ petitioner No. 2 in adoption. The learned advocate for the petitioner argued that in view of the statements made in paragraph 9 of the petition under Section 13B of the Hindu Marriage Act, 1955 read with aforesaid order No. 4 dated 13.12.2001 passed in Mat Suit No. 300 of 2000 the respondent No. 5 has suffered a "civil death" as father of the petitioner No. 2 and respondent No. 5 has also abandoned the petitioner No. 2.
14. This Court is unable to accept the argument of the learned advocate for the writ petitioners. Neither paragraph 9 of the petition under Section 13B of the Hindu Marriage Act, 1955 nor the order No. 4 dated 13.12.2001 passed by the learned District Judge, Hooghly in Mat Suit No. 300 of 2000 takes away the right and capacity of the respondent No. 5 under Section 9 of the Hindu Adoptions and Maintenance Act, 1956 to give the petitioner No. 2 in adoption. The respondent No. 5 has not suffered any "civil death" so far the petitioner No. 2 is concerned. 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 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.
15. Annexure-'F-4' of the writ application is a copy of Certificate of Birth (extract from the Register of Birth) issued under Section 12/17 of the Registration of Births and Deaths Act, 1969. In paragraph 5 of the writ application it has been stated that in the Birth Certificate the names of the father and mother of the writ petitioner No. 2 were noted as Shri Santanu Laha, respondent No. 5 and Smt. Sutapa Laha, respondent No. 4.
16. Paragraph 10 of the writ application reads as follows:
"That the petitioners state that after the execution of the said Deed of adoption, the petitioner No. 1 applied before the Chairman, Hooghly Chinsurah Municipality for rectification of the names of father and mother of petitioner No. 2 in the Registration No. 5190 dated 23.10.1998. In the said representation, the petitioner No. 1 informed the Chairman that by virtue of Deed of Adoption he became the adoptee father of petitioner No. 2 and requested the Chairman to rectify the name in the Item No. 7 of the Certificate of Birth showing his present family particulars. The said representation was duly received by the Municipal authority on 17th May, 2002.
A copy of the said representation alongwith receipt are annexed hereto and are marked with the letter 'P-5 collectively".
17. It is the case of the writ petitioners, as stated in paragraph 11 of the writ application, that till today the Municipality has not changed the name/ family particulars of petitioner No. 2 in the Birth Certificate in spite of several requests.
18. In the present writ application the writ petitioners, inter alia, prayed for the following relief.
"A writ and/or order or orders and/or directions in the nature of a writ of Mandamus commanding the respondents, their employees, agents, sub-ordinates to rectify the family particulars and/or rectify the name in the Item No. 7 of Certificate of Birth of the petitioner No. 2 pursuant to the Judgment and decree passed by the Competent Civil Court and pursuant to the execution of Deed of Adoption"."
19. In paragraph 13 of the writ application the writ petitioners stated as follows:
"That the petitioners submit that when the Competent Civil Court passed the decree under Section 13(b) of Hindu Marriage Act and the respondent No. 4 and one Santanu Laha both have resolved that the respondent No. 4 shall be natural guardian of Sri Suvam Laha and shall also be entitled to the custody of minor Suvam Laha and also be entitled to do all acts for welfare and well being of Suvam Laha, the Municipal authorities cannot raise any objection to change the name/ title/family particulars of the petitioner No. 2 in the Certificate of Birth."
20. This Court is of the view that Section 13B of the Hindu Marriage Act, 1955 is a special law laying down the provisions for divorce by mutual consent. This section has nothing to do with the adoption of a child born out of the wed-lock between the parties who presented the application under Section 13B of the Hindu Marriage Act, 1955. The petition under Section 13B of the Hindu Marriage Act, 1955 may contain many statements which are not relevant for the purpose of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. Nothing has been stated in the order No. 4 dated 13.12.2001 passed by learned District Judge, Hooghly in Mat Suit No. 300 of 2000 from which it can be said that only the respondent No. 4 shall be treated as natural guardian of the petitioner No. 2. In a Court's order something cannot be read which is not there. That apart order No. 4 dated 13.12.2001 passed in Mat Suit No. 300 of 2000 has nothing to do with the right and capacity of the respondent No. 5 under Section 9 of the Hindu Adoptions and Maintenance Act, 1956.
21. No Court can direct any person or authority to act in compliance to a document or an action which is not authorised by law. If this Court directs the Municipality to change the name/family particulars of the petitioner No. 2 by incorporating the name of the writ petitioner No. 1 as adoptive father then it means that the Deed of Adoption receives the approval of this Court. Even when the respondent No. 5, who is the natural father of the writ petitioner No. 2, is not contesting, the Court cannot ignore the provisions of Section 9(2) of the Hindu Adoptions and Maintenance Act, 1956 and the facts apparent on the face of the record and direct the Municipality to change the name/family particulars of the petitioner No. 2 by incorporating the name of the writ petitioner No. 1 as adoptive father.
22. In view of the discussions made hereinabove this Court is of the view that the Deed of Adoption and the adoption of the writ petitioner No. 2 by the writ petitioner No. 1 having not been made in accordance with Sub-section (2) of Section 9 of the Hindu Adoptions and Maintenance Act, 1956, this Court cannot and should not direct the respondent Municipality to change the name/family particulars of the petitioner No. 2 in the Birth Certificate as prayed for in the writ application.
23. In view of the discussions made hereinabove the petitioners are not entitled to any order as prayed for in the writ application. The writ application is dismissed. However, there shall be no order as to costs.
Urgent xerox certified copy, if applied for, be made available the parties forthwith on usual undertaking.