Andhra Pradesh High Court - Amravati
Puttagurayyasetti, Adopted Father vs The State Of Andhra Pradesh on 24 January, 2023
Author: Battu Devanand
Bench: Battu Devanand
THE HONOURABLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION NO.13531 of 2022
1. This writ petition is filed to declare the action of the
respondents for illegally detaining the two adopted minor children
(Baby N. Rohini, 3 years and Baby N. Kowshik, 1 year) of the petitioners by the respondents, without conducting any enquiry and without following due process of law, as illegal, arbitrary, violative of Articles 14 & 21 of the Constitution of India and consequently to direct the respondents to restore the children to the adopted parents.
2. The case of the petitioners is that, though they were married long back, they were issueless and they were looking for adoption. They came to know through their relatives that, biological mother of the minor children died on 11.10.2021 due to ill-health. The biological father is unable to maintain the children and he is looking to give away the minor children in adoption. Then the petitioners approached the biological father (9th respondent) and his mother, who readily on their free will accepted for adoption. Accordingly, the 9th Respondent executed Registered Adoption Deed vide Document No.73/2021 dated 24.12.2021 and both the DEV,J W.P. No.13531 of 2022 2 minor children were given to the care and custody of the adopted parents/petitioners. Since then, they are under the care and custody of the petitioners.
3. While so, on 02.05.2022, the 7th Respondent - Sub Inspector of Police, Cheedikada Police Station, Anakapalli District, on the directions of the 6th Respondent -Child Welfare Committee, came to the house of the petitioners, took away the minor children without any acknowledgment and they were kept under the custody of the 8th Respondent - Sishugruha Adoption Institute. Questioning the action of the respondents, the present writ petition is filed.
4. The 6th Respondent - Child Welfare Committee filed counter affidavit, inter alia stating that, the 9th Respondent - Biological Father gave complaint on 21.03.2022 to the 6th Respondent stating that, his minor children were given for care and protection to the petitioners in an intoxicated state by executing the Registered Adoption Deed by receiving an amount of Rs.25,000/- as advance and requested to return his minor children. Basing on the above complaint, the 6th Respondent addressed letter to the Station House Officer, Cheedikada Police Station to pursue the matter and DEV,J W.P. No.13531 of 2022 3 submit the report. On 03.05.2022, the police produced the minor children before the 6th Respondent - Child Welfare Committee and as they were falling under the age of 06 years, they provided shelter in 8th Respondent - Sisugruha Adoption Institute. On verification of the copy of the Registered Adoption Deed dated 24.12.2021, the 6th Respondent called for the petitioners to produce the original Registered Adoption Deed. Thus, the 9th Respondent and the petitioners have violated the law and indulging into sale and purchase of minor children for consideration.
5. The 9th Respondent - Biological Father filed counter affidavit stating that, after the death of his wife on 10.11.2021, he became alcoholic. In that trauma, the mother of the 9th Respondent received Rs.25,000/- from the petitioners and forced him to execute Registered Adoption Deed on 24.12.2021 by giving the minor children to the petitioners in adoption. There is absolutely no relationship between the petitioners and 9th Respondent. After coming out of the alcoholic state, he realized that his minor children were missing and lodged complaint before the 6th Respondent - Child Welfare Committee, who thereafter secured the presence of the minor children. The petitioners have got signed DEV,J W.P. No.13531 of 2022 4 the Adoption Deed by force and that too, the Adoption is not valid due to payment of money to his mother and hence, the Adoption is prohibited under Hindu Adoption and Maintenance Act.
6. The petitioners filed reply affidavit stating that, being childless, they intended to enjoy the parenthood through adoption. The petitioners who are relatives of the 9th Respondent, came to know that the 9th Respondent is intending to give his minor children in adoption as he is unable to maintain them. The 9th Respondent was also in thought of remarriage and feared that his new wife may not accept the minor children. The petitioners possess own house and financial sound to raise the children. To enjoy the parenthood, they intended to adopt the minor children. Accordingly, they adopted minor children from the 9th Respondent by executing Registered Adoption Deed. There is no any consideration at the time of registering the Adoption Deed between the petitioners and the 9th Respondent and that the Adoption Deed is as per the procedure prescribed under law, as such, the provisions of the Juvenile Justice Act, 2015, cannot be made applicable to the present case.
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7. Learned counsel for the petitioners filed written arguments reiterating the contents of the writ petition and reply affidavit. The petitioners also contended that, the provisions of the Juvenile Justice Act, 2015, applies to limited class of children those who are in conflict with law, in need of care and protection, orphaned, surrendered or abandoned. It is also contended that, the respondent/authorities have no jurisdiction or power to take custody of the minor children when there is a Registered Adoption Deed. Further, Hindu Adoption and Maintenance Act, 1956 overrides the Juvenile Justice Act. It is also contended that, both the minor children can be taken in adoption at the same time Finally, it is contended that the minor children are in the unlawful detention of Respondent Nos.6 to 8 and prayed to allow the writ petition by directing the Respondent Nos.6 to 8 to handover the custody of minor children to the petitioners, for care and custody.
8. On behalf of official Respondent Nos.1,3 to 5 & 8, learned Government Pleader for Women Development and Child Welfare filed written arguments, stating that, the biological father in his complaint dated 21.03.2022 before the 6th Respondent specifically stated that, when he was in alcoholic state, the petitioners got executed adoption deed by paying Rs.25,000/- to his mother and DEV,J W.P. No.13531 of 2022 6 hence transaction comes under Section 81 of the Juvenile Justice Act to protect the interest of the minor children. The official respondents, after following due process of law only, put the minor children in the 8th Respondent institution for safe custody.
9. The 9th Respondent - Biological Father also filed written arguments, reiterating the contents of the counter affidavit filed by him and also stating that the adoption claimed by the petitioners is not valid under law. The 9th Respondent also filed O.S.No.580 of 2022 on the file of the Junior Civil Judge, Bheemili declaring the Registered Adoption Deed dated 24.12.2021 as illegal and the same is pending for adjudication.
10. Heard, Ms. M. Vinodin Ruth, learned counsel for the petitioners, learned Government Pleader for Women and Child Welfare for Respondent Nos.1, 3 to 6 & 8; learned Government Pleader for Home for Respondent Nos.2 & 7 and Sri Venkateswara Rao Gudapati for Respondent No.9 and perused the material on record.
11. It is an admitted fact that the 9th respondent is the biological father of the two minor children (Baby N. Rohini, 3 years and Baby N. Kowshik, 1 year). The biological mother of the minor DEV,J W.P. No.13531 of 2022 7 children died on 11.10.2021 due to ill-health. The petitioners being childless, they intended to enjoy the parenthood through adoption. The 9th respondent executed Registered Adoption Deed vide Document No.73/2021 dated 24.12.2021 and both the minor children were given to the care and custody of the adopted parents/petitioners. Since then, they are under the care and custody of the petitioners.
12. Subsequently, on 21.03.2022, the father of minor children i.e. the 9th respondent gave a complaint to the 6th respondent stating that his minor children were given for care and protection to the petitioners in an intoxicated state by executing the Registered Adoption Deed by receiving an amount of Rs.25,000/- as advance and requested to return his minor children. Basing on the said complaint, the 7th respondent as per the directions of the 6th respondent came to the house of the petitioners and took away the minor children and they were kept under the custody of the 8 th respondent i.e. Sishugruha Adoption Institute. Questioning the action of the respondents, the present writ petition is filed.
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13. Learned counsel has placed reliance on the judgments in Laxmi Kant Pandey vs Union Of India 1 , Jasmine Kaur vs. Union of India2, Smt. Anokha vs The State Of Rajasthan3 and Kommuri Sriniwas vs. State of Telangana4.
14. This Court carefully gone through these judgments. This Court carefully agreed with the proposition of law laid down in those judgments. But, in view of the facts and circumstances of the present case, those judgments are not directly applicable to the present case.
15. In the present case, though there is registered Adoption Deed executed by the petitioners and the 9th respondent for giving adoption of the two minor children to the writ petitioners, subsequent to the said Adoption Deed, the 9th respondent who is the biological father raised dispute on the ground that during intoxication condition, at the force of his mother he executed the Adoption Deed. His contention is that, the Adoption Deed is not legally valid. Accordingly, he filed a suit in O.S.No.580 of 2022 before the Principal Junior Civil Judge, Bheemunipatnam, 1 1987 SCR (1) 383 2 CWP-10555-2019 dated 28.07.2020 3 (2004) 1 SCC 382 4 AIR 2021 NULL 33 DEV,J W.P. No.13531 of 2022 9 Visakhapatnam District, seeking declaration of the Registered Adoption Deed dated 24.12.2021 as illegal. Admittedly, the said suit is pending for adjudication.
16. Under these circumstances, this Court while dealing with this issue under Article 226 of the Constitution of India, cannot deal with the disputed question of facts and cannot decide the legality and validity of the registered Adoption Deed dated 24.12.2021 which is pending for consideration and adjudication before the concerned Civil Court. Only after adjudication of the suit filed by the 9th respondent by the competent Civil Court, the rights of the parties basing on the Adoption Deed dated 24.12.2021 will be decided.
17. The opinion of this Court is fortified by the Hon'ble Apex Court in Sanjay Sitaram Khemka vs. State of Maharashtra 5, wherein it is held as extracted hereinunder at Paragraph Nos.8 & 9:
"8. Having regard to the allegations and counter allegations made by the parties before us, we are of the opinion that no releif can be granted to the Petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The 5 (2006) 5 Supreme Court Cases 255 DEV,J W.P. No.13531 of 2022 10 petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law.
9. A Writ Petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the Petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution."
18. In one of the unreported judgment of the Hon'ble Apex Court in Subhas Jain vs. Rajeshwari Shivam [C.A No.2848 of 2021 dated 20.07.2021], it is held as extracted hereinunder in Paragraph No.26:
"It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable."
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19. The Hon'ble Supreme Court in Subhashree Das vs. State of Orissa6 in Paragraph No.7 observed as extracted hereunder:
"High Court in exercise of jurisdiction under Article 226 of the Constitution of India, would ordinarily not adjudicate a matter where the foundational facts are disputed."
20. The Hon'ble Supreme Court in M.P. Power Management Company Limited, Jabalpur vs. Sky Power Southeast Solar India Private Limited and others7, in Paragraph No.42 observed as extracted hereunder:
"Such disputed questions of fact ordinarily could not have been entertained by the High Court in exercise of its power of judicial review."
21. This High Court in Syed Muneer Raza vs. Chairman, Railway Board, New Delhi8 held that, disputed question of facts cannot be gone into by this Court under extraordinary jurisdiction conferred under Article 226 of the Constitution of India. 6 (2012) 9 SCC 729 7 Civil Appeal Nos. 8515-8516 of 2022 dated 16.11.2022 8 AIR 2000 AP 204 DEV,J W.P. No.13531 of 2022 12
22. In view of the facts and circumstances of the present case and without going into merits of the case at present and to protect the interest of the minor children, now who are kept under the care and custody of the 8th respondent, this Court intends to pass the following directions to meet the ends of justice:
i. The care and custody of the minor children shall continue with the 8th respondent - Sishugruha, Special Adoption Institute, Vizianagaram under the regular supervision of the Respondent Nos.6 & 7.
ii. The petitioners and the 9th respondent are at liberty to visit the minor children, whenever, they wish, with the permission of the 8th respondent.
iii. The Principal Junior Civil Judge, Bheemunipatnam is requested to dispose of O.S.No.580 of 2022 on priority basis, as expeditiously as possible, preferably not more than six (06) months.
iv. The petitioners and the 9th respondent shall cooperate for disposal of the suit in the time frame.
v. The parties are at liberty to agitate their rights provided under law after disposal of O.S.No.580 of 2022.
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23. With the above directions, writ petition is disposed of.
24. There shall be no order as to costs.
25. Consequently, miscellaneous applications pending if any, shall stand closed.
_____________________________ JUSTICE BATTU DEVANAND Date: 24.01.2023 Note: Issue copy by tomorrow b/o SP DEV,J W.P. No.13531 of 2022 14 THE HONOURABLE SRI JUSTICE BATTU DEVANAND WRIT PETITION NO.13531 of 2022 Date:
W SP