Calcutta High Court
Sankar Kumar Das And Another vs Superintendent, Jawaharlal Nehru ... on 23 August, 1995
Equivalent citations: AIR1996CAL264, 100CWN689, AIR 1996 CALCUTTA 264, (1996) 100 CAL WN 689 (1996) MARRILJ 571, (1996) MARRILJ 571
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
ORDER
1. The revision application is directed against the order dated 23-4-92 passed by Sri P. Sengupta, District Judge, Nadia in Miscellaneous Case No. 39/91 and Miscellaneous Case No. 47/91 whereby and where-under the said learned Court allowed the application for adoption filed by Sri Mungrej Ahuja and his wife (hereinafter referred to as 'Ahujas') (Miscellaneous Case No. 47/91) and dismissed the application of Sankar Das and Sandhya Das (hereinafter referred to as petitioners) in Miscellaneous Case No. 39/91 purported to be under Section 9 of the Hindu Adoptions and Maintenance Act (hereinafter referred to as the said Act).
2. The basic fact of the matter is not in dispute. On 11-3-91 a child Suman Pathak by name was admitted in the Jawaharlal Nehru Memorial Hospital, Kalyani (hereinafter referred to as 'the Hospital') but thereafter nobody came to look after the child. The Officer-in-charge of the Kalyani " Police Station was informed about the said incident on the said date. It is admitted that those persons who got the said child admitted in the Hospital abandoned it. Sankar Das and his wife Sandhya Das filed an application for adoption of the said child before Sub-Divisional Officer, Kalyani on 5-7-1991 which was not entertained. They, thereafter, filed an application under Section 9 of the said Act before the learned District Judge on 18-7-91 which was marked as Miscellaneous Case No. 39/91. Mungrej Ahuja and his wife also filed a similar application on 3-9-1991 which was marked as Miscellaneous Case No.47/91. The petitioners of both the cases stated that the petitioner No. 2 in each case were medically unfit to bear any child.
3. Before the learned District Judge some documents were filed by the State. Before the learned Court below both side adduced their respective evidences and the learned Court below, as noticed herebefore, in terms of his order dated 23-4-1992 dismissed the application of the petitioners and allowed the application of Ahujas.
4. This Civil Revision Application was filed on 8-6-1992 and by an order of the said date a learned single Judge of this Court stayed the operation of the order in so far as handing over the custody of the baby is concerned. By an order dated 18-5-1993 a Division Bench of this Court comprising of S. K. Mukherjee and Nure Alam Chowdhury, JJ. directed that the custody of the child be handed over to the Juvenile Welfare Board, Ananda Ashram, Baharampur, Murshidabad. It appears from different orders passed by this Court that another proceedings had been going on before the said Board. The learned Judges, therefore, directed the Board to produce all records relating to the custody of the child and also directed its Chairperson to be personally present in Court.
5. A supplementary affidavit was filed on 11-5-1993 wherein it was disclosed that during pendency of the application, the custody of, the child had been handed over by the Superintendent of Jawaharlal Nehru Memorial Hospital to the intervenors. Although in view of the affidavit affirmed in support of the said supplementary affidavit no absolute reliance was placed by the learned Judges thereupon but some directions have been given therein. On or about 14-1-1993 an application was filed by another couple Nila Sen and Sankar Sen wherein it has been, inter alia, stated that the applicant No. 1, who was serving in the said Hospital as a senior Staff Nurse since 1984, has been looking after the child as her own son with all motherly care and affection. The said applicants also contended that the applicant No. 1 is unable to bear any child. They allegedly filed an application for adoption of the child before the Superintendent of J.N.M. Hospital and further made representation before the Chairman of the Juvenile Justice Board as also before the Social Welfare Department. The said representations are dated 18-11-1992, 29-12-1992 and 30-12-1992. It appears from the records that during pendency of this application the custody of the child was handed over to the added respondents.
6. By an order dated 8th April, 1993 the Division Bench directed the Board to continue with the custody of the child and further directed the parties not to make any attempt to contact with and have access to the child.
7. The matter was heard in part by the said Division Bench on 30-4-1993 and 6-5-1993. On 7-5-1993 the application for addition of the parties was allowed subject to any objection that may be taken at the time of hearing. The matter was further heard in part on 4-6-1993, 30-7-1993, 5-8-1993, 6-8-1993 and 10-3-1994. However, by an order dated 14-4-1994 the said application was released on the ground that their Lordships were sitting in different Division Benches and thus the said application was not possible to be heard on an urgent basis.
8. In view of amendment in the Calcutta High Court Rules, however, the matter was placed before D. K. Basu, J. and his Lordship by an order dated 16-12-1994 directed the Chairperson of Juvenile Welfare Board to produce the child (Suman Pathak) on Tuesday at 3.30 P.M. It appears that the learned Judge made an attempt that the dispute between the parties be amicably settled. The learned Judge was of the view that the interest of the child should be considered as paramount and accordingly directed all the claimants to appear in person. His Lordship further directed the Chairperson of the Juvenile Welfare Board to produce the said child on 30-1-95. The matter, however, could not be taken up on 30-1-1995 and was placed on 14-2-1995 on which date the interim order of this Court dated 18-3-1993 was modified to the extent that the said child be given to custody of Mr. Sankar Sen and Mrs. Nila Sen pending disposal of the application. However, it was directed that they will not claim any equity. On 14-3-1995 nobody had appeared and the matter was directed to be placed for hearing on 15-3-1995.
9. On and from 14-2-1995, learned Counsels of this Court went on strike. It now transpires that because of such cease-work on 14-2-1995 some of the learned Counsels appearing for contesting parties did not appear before the said Court. By an order dated 16-3-1995 the learned Judge released the matter on the ground that his Lordship's order dated 14-2-1995 has created confusion amongst the members of the Bar.
10. On 28-3-1995 this matter was placed before this Court and was directed to be listed as for orders one week thereafter. However, on 4-4-1995 nobody appeared on behalf of the petitioner and only the learned counsel for the added parties was present.
11. The learned Counsel appearing on behalf of the respondent No. 5 submitted that keeping in view the fact that he could not appear before the learned Judge on 16-2-1995 on which date the custody of the child was handed over to the added respondents, his clients are of the view that since the child had been with the said respondents for sufficiently long time now, some affinity must have grown in the meanwhile and thus it would not be prudent to prosecute the said application for adoption anymore.
12. Mr. Kazi Safiuddin Ahmed, the learned Counsel, appearing on behalf of the petitioners has raised a short question in support of this application. The learned Counsel submitted that a bare perusal of the order passed by the learned Court below would show that the same had been passed without taking into consideration the relevant materials on records. According to the learned Counsel in the Civil Revision Application no party can be directed to be added particularly in view of the fact that Smt. Nila Sen and Sri Sankar Sen did not file any application before the learned District Judge for adoption of the child in question in terms of the provision of Section 9 of the said Act. The learned Counsel contends that the question as to whether the applicants should be allowed to adopt the child in question is essentially a question of fact and in order to prove their bona fide, they are required to produce materials. The learned Counsel submits that this Court in exercise of its revisional jurisdiction cannot allow adduction of any fresh evidence at this stage nor can it permit the added respondents to do so for the first time in this Court in absence of any proper application having been filed on their behalf before the learned Court below. It was, therefore, submitted that the petitioners being the only claimants, their application under Section 9 of the said Act be allowed.
13. Pursuant to the order passed by this Court the lower Court records were sent for the petitioners in the aforementioned Miscellaneous Case No. 39/91, inter alia prayed : "Under the facts and circumstances your petitioners humbly and respectfully pray that your honour may be pleased to have an order of adoption of the child in favour of the petitioners and further order/orders as your honour may deem fit and proper be passed."
14. In the said petition it was stated that the said child is called by name Suman Pathak alias Babu. The petitioners are very much eager to have the adoption of the child and, therefore, an order of sanction for adoption under the law is required. They further stated that having-come to learn that the said child is under the care of Superintendent of J.N.M. Hospital, Kalyani, they filed a petition before the Sub-Divisional Officer, Kalyani for getting the baby on adoption who declined to do so alleging that he had no jurisdiction in relation thereto. Ahujas in Miscellaneous Case No. 47/91 merely stated that they came to learn that an abandoned child is now kept under the custody of the Superintendent of J.N.M. Hospital, Kalyani in the District of Nadia, West Bengal. The said petitioners also sent an application by post for adoption before the Sub-Divisional Officer.
15. In none of the aforementioned applications, any statement have been made that the Superintendent of J.N.M. Hospital is the guardian of the child and/or that he was ready and willing to give the child in adoption to the applicants of either of the cases.
16. Both the aforementioned cases were directed to be heard analogously. On 22-4-1992 Ahujas were examined as witnesses in their case. On 22-4-1992 witnesses were examined in the petitioners' application also. It is evident that during pendency of this Civil Revision Application the Chairperson, Juvenile Welfare Board, Ms. Ipsita Gupta, took custody of the child.
17. The Parliament enacted the said Act with a view to amend the law relating to adoption and maintenance amongst Hindus. The said Act has an overriding effect over other Acts, customs or usages etc. Section 6 provides for the following requirements for a valid adoption :--
"l. The person adopting must have the right to take and he lawfully capable of taking a son or daughter in adoption;
2. The person giving in adoption must be lawfully capable of doing so;
3. The person adopted must be lawfully capable of being taken in adoption;
4. The conditions relating to adoption including actual giving and taking of the child with the intention of transferring the child from the family of its birth to the family of its adoption must be complied with;"
18. Section 7 provides that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Section 8 confers the right upon some female Hindus specified therein to have the capacity to take a son or a daughter in adoption. Section 9 specifies the persons who are capable of giving any adoption.
19. Sub-sections (1), (4) and (5) of Section 9 read thus :--
(1) "No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(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 applicant 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."
20. A bare perusal of the aforementioned provisions in my opinion demonstrates that the matter relating to adoption normally have its root in an agreement between a guardian of a minor willing to give the child in adoption and the other' party who is willing to take him in adoption.
21. Sub-section (4) of section 9 which is an exception to sub-section (1) of Section 9 provides that where an adoption of a child is to be given by a guardian, he may do so only with the previous permission of the Court to any person including himself. There is nothing on records to show that the Superintendent of J.N.M. Hospital, Kalyani who is said to be the guardian of the child ever expressed his willingness to give the child in question in adoption. From the records it also does not appear that any attempt had been made by the learned District Judge to arrive at a finding that the applicants for permission have 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. Subsection (5) of Section 9, postulates that such an application for obtaining permission of the Court was required to be filed by the guardian and not by persons who were willing to take the child in adoption. Sub-sections (1), (4) and and (5) have to be read together.
22. It is true that in terms of the explanation appended to sub-section (5) of Section 9 of the said Act the guardian may be a person who has the care of the person of a child or both his person and property. The learned Court below also does not appear to have arrived at a finding that he had satisfied himself that the adoption would be in the interest of the minor as there cannot be any doubt whatsoever that the minor's welfare is the paramount consideration for the Court.
23. It may also be noticed that keeping in view the language used in sub-section (5) of Section 9 in the context of receipt of any consideration for adoption that the applicant in a proceeding under sub-section (4) of Section 9 must be the guardian himself. He has also to satisfy the Court that other conditions for a valid adoption have been fulfilled.
24. It may, however, be noticed that the view of mine that the guardian of the child is to seek permission has been considered by the Division Bench of Karnataka High Court, presided over by Venkatachala, J. (as his Lordship then was ) in the matter of Canara Bank Relief and Welfare Socy. . It was held that the matter in respect of which application was made in the miscellaneous case before the City Civil Court under sub-section (4) of Section 9 of the Act which it can exercise its jurisdiction under Section 7 of the Family Courts Act.
25. Thus indirectly if not directly, the Division Bench has also held that the guardian of the child should seek permission of the Court. In the instant case neither any permission was sought for nor granted. In fact even there was no pleading to the effect that the Superintendent of the Hospital was ready and willing to give the child in question in adoption.
26. In fact Mr. K. S. Ahmed, the learned Counsel for the petitioner was very fair enough when he submitted that from the report of the Superintendent of the hospital, it would" appear that Baby, namely Suman Pathak had to live with other patients in the hospital despite the fact that he was cured of his illness since March, 1991. The learned Counsel appearing on behalf of both the parties accept the position in law that as regards custody and care of a child the Juvenile Justice Act, 1986 covers the field. The said Act is a Special Statute which also contains a non obstante clause which is of wide amplitude. Section 18 of the Juvenile Justice Act casts a duty on any police officer or any other person or organisation authoris ed by the State Government in this behalf to take charge of a neglected juvenile for bringing him before a Board. In the instant case, admittedly the Superintendent of the Hospital had informed the Officer-in-charge of the concerned Police Station. He failed and/or neglected to perform his statutory duties. The said Act envisages that the Board should make an enquiry regarding the neglected juvenile. Here again despite the fact that the petitioner has filed application before the Sub-Divisional Magistrate, Kalyani, who was at the material time was in-charge of the Juvenile Board, seeking his permission to adopt the child, the said authority also failed to perform his statutory duty under Section 15 of the said Act, but evidently in order to shirk his responsibility advised the petitioner to approach the District Judge for such purpose. Section 18 of the said Act casts a duty upon the Officer-in-Charge of the Police Station concerned to produce the neglected child before the Juvenile Justice Board for taking custody and care of the child whereas Section 16 of the said Act empowers the Board to place the juvenile under the care of parent, guardian or other fit person upon certain specific conditions. Section 33 of the Act specifies the circumstances which should be taken into consideration while making orders for care and custody of the child.
27. The petitioners themselves made a grievance which has been emphasised before me through Mr. Ahmed, that the learned Court below even neither called for a report from the Juvenile Justice Board nor impleaded it as a party. It merely called for a report from the Superintendent of the Hospital and the Superintendent of the Hospital submitted a report as regards circumstances in which the child was brought in the hospital.
28. He never accorded his consent that the child be given in adoption either to the petitioners or to Ahujas. He never made any endeavour to look after the welfare of the child nor considered as to what course of action should be taken for his proper custody and care. Mr. Ahmed has placed before me a report dated 19-11-91 of the Probation Officer. It is not understood as under what provisions of the Hindu Maintenance and Adoptions Act or any other provisions of law, such a report was called for. The said report, therefore, in my opinion is wholly irrelevant.
29. It is a matter of great regret that although the Chairperson of the Juvenile Justice Board was summoned by this Court and had temporarily taken over the custody of the child but it appears that the Chairperson of the said Board expressed her inability to continue to have the custody of the said child. In fact after the order dated 14th February, 1995 passed by D.K. Basu, J. the learned counsel appearing on behalf of the Juvenile Justice Board or the State of West Bengal did not appear before this Court. Such lackadaisical and non-co-operative attitude on the part of the parties cannot but be deprecated.
30. Another contention raised by Mr. Ahmed may now be dealt with. Mr. Ahmed submits that in view of the fact that welfare of the child is the prime consideration, this Court may not strictly follow the procedure laid down for such adoption. In support of his aforementioned contention, my attention has been drawn to a decision by a Division Bench of Kapataka High Court in Society of Sisters of Charity St. Gerosa Convent v. Karnataka State Council for Child Welfare, . The-aforementioned case arose out of an application for inter-country adoption. The Division Bench of Karnataka High Court inter alia, observed as follows (paras 19 and 20 of AIR) :--
"The Court is bound to exercise the jurisdiction in favour of the child once it is satisfied that the Order it is likely to make is for the welfare of the child. If the satisfaction is reached that the welfare of the minor is assured, 'the Court may make order accordingly should be read as mandatory and not directory."
It further held :--
"The dominant factor to be considered by the Court is the welfare of the minor and not of any procedural lapse and that too a procedure which does not contravene the law."
31. It may be noticed that the Supreme Court of India in Lakshmi Kant Pandey v. Union of India, ; in Lakshmi Kant Pandey v. Union of India, and in Lakshmi Kant Pandey v. Union of India, , have laid down different guidelines before a direction for such adoption is permitted. In third Lakshmi Kant Pandey's case, , the Supreme Court upon taking into consideration not only the difficulties which were faced by some agencies in implementing its earlier decisions, and , gave fresh direction not only with regard to the adoption of a child by the foreign nationals but also by the Indian nationals. By reason of the aforementioned judgment safeguards provided for in the matter of adoption of a child by a foreign national, were made applicable also in cases of adoption of child by Indian national. The matter again came up for consideration before the Supreme Court of India in Suman Lal Chhotelal Kamdar v. Asha Trilokbhai Shah (Miss), . The said application has been filed by some social workers wherein an order passed by the District Judge, Rajkot, allowing the application filed by the Superintendent, Kathiawar Nirashrit Balashram as power of attorney holder of a Norwegian couple under Section 7 of the Guardians and Wards Act, 1890 and appointing the Norwegian couple as the guardian of the child with certain conditions mentioned therein was questioned. The learned single Judge in view of the decision of the Supreme Court in Lakshmi Kant Pandey's case (supra) held that the District Judge scrupulously followed the guidelines laid by the apex Court. The Apex Court observed the guidelines issued by it earlier are quite exhaustive and it considered it necessary to reiterate the guidelines laid down by the Apex Court in the said cases. It further observed as follows (para 2 of AIR) :--
"The authority permitting adoption should explain to the biological parent of the child about the nature and effect of the adoption and the possible permanent loss of contact from the child. In absence of a finding that the authorised officer took precaution to explain the effect of adoption it may be rendered infirm. This is demonstrated by the facts of this case as the Superintendent, as holder of power of attorney of the Norwegain couple, became the applicant and as Superintendent of the Ashram gave the child in adoption. That was not proper. It was the duty of the Superintendent to have contacted the mother and the father, if they were known, and to explain to them the effect of adoption unless they were not available. However, we do not interfere with the orders passed by the Courts below, but as indicated above, the guidelines have to be enforced strictly, as violation of the same may not only render the adoption infirm, but may lead to proceeding against the person infringing the same."
32. Evidently in this case neither guidelines issued by the Supreme Court in the aforementioned cases have not (sic) been followed by the learned District Judge nor any attempt had been made by any person whosoever to find out the parents of the child. The name of the father of the child was disclosed and was available in the hospital register. In this situation it was the duty of the Officer-in-Charge at the first instance to make an attempt to find out the said parents or to find out those persons who brought the said child to the hospital. The learned District Judge also failed to apply his mind in this direction. As indicated hereinbefore, he merely considered the respective cases of the parties and allowed the application filed by Ahujas while rejecting that of the petitioners.
33. What course of action should this Court adopt in this situation is the core question. The child appears to be now in custody of the added respondents. No complaint has been made by anybody that he is being neglected by them. However, keeping in view the statutory duty of the Juvenile Justice Board it is directed that the Juvenile Justice Board shall carry out its statutory duties as laid down under the Juvenile Justice Act and shall from time to time visit the child in question and see to it that the applicants are looking after his welfare in a proper manner. It would be open to the Juvenile Justice Board which is, under the law, guardian of the said child and is now being declared as such, to look after his care and comfort, although the said child may remain in the custody of the applicants for the time being.
34. There exists a distinction between the custody and care. There are many cases which have been decided by divorce Courts wherein the custody of a child is given to one parent, but the other parent is asked to take care of the said child. The Chairperson of the Juvenile Justice Board shall visit the house of the applicants (newly added respondents) once in a fortnight and if possible with prior notice to the added respondents. The Juvenile Justice Board may file an appropriate application before the District Judge, Nadia under Section 9 of the Hindu Adoptions and Maintenance Act and if such an application is filed, both the petitioners as also the applicants (newly added respondents) and/or any other interested couple may express their readiness and willingness to adopt the child in question in which event, the learned District Judge shall consider the materials brought on record and pass an appropriate order in accordance with law in the light of the guidelines issued by the Supreme Court in the decisions referred to hereinbefore.
35. A distinction must also be borne in mind between temporary custody and adoption as the latter is of parmanent in nature and thus in fitness of things, in my opinion, the welfare of the child will be best subserved if he is adopted by a willing couple. If such an application is filed, the learned District Judge, Nadia, shall issue a notice to the petitioner and shall also issue a general notice:
36. These applications are disposed of with the aforementioned directions, but in the peculiar facts and circumstances of this case, there will be no order as to costs.
37. Let a copy of this order be sent to the Chairperson of the Juvenile Justice Board, Berhampore. If urgent xerox certified copies are applied for by the parties, the same may be furnished to the learned Counsel for the parties expeditiously.
38. Order accordingly.