In the light of above, since the child has been brought up as a Hindu and has been abandoned by his parents (reasons for arriving at the conclusion that the child is an abandoned child have already been given above), I do not have the slightest hesitation to hold that Master Ansh can, thus, be given in adoption as he is capable of being taken in adoption.
ALLAHABAD HIGH COURT
MISC. SINGLE No. - 7224 of 2014
Sohan Lal Vs Addl. District & Sessions Judge Court No.9 Lucknow and Others
Hon'ble Devendra Kumar Upadhyaya,J.
Citation;AIR2015 ALLAHABAD 33
It is true today, as it was ever before, that no person can look after the welfare of the children in a better way than parents. Destiny, however, has its own ways to mould the course of life of a person.
The present case concerns itself with the welfare of a child who appears to be deprived of the natural care and protection of his parents for the reasons beyond his control. The State, the Society and its Institutions, must, therefore, work in tandem to salvage the situation so that the luckless child is empowered to swim through the rough tides, where destiny has left him unattended.
These proceedings instituted under Article 226 of the Constitution of India seek to assail the validity of the judgement dated 22.10.2014, passed by the learned Additional Sessions Judge, Court No.9, Lucknow in Misc. Case No.138 of 2014, whereby application made by the applicants seeking court's permission to give Master Ansh in adoption as required under Section 9 (4) and (5) of the Hindu Adoptions and Maintenance Act,1956 (hereinafter referred to as 'Hindu Adoptions Act') has been ordered to be proceeded in terms of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'Juvenile Justice Act'). The application made by the applicants seeking permission to give the child in adoption under the Hindu Adoptions Act has, thus, been rejected.
The facts of the case, which are necessary for appreciating the issue involved in the present petition, as culled from the pleadings available on record of the case, are that the opposite party no.3, who is a deaf and dumb woman and is known by the name of Maina (name given to her by the State Women Protection Home), was admitted in District Women Hospital Allahabad on 11.09.2013 in advance stage of pregnancy. At the time of her admission in the hospital at Allahabad, she was unaccompanied, deserted and abandoned. On 11.09.2013, she gave birth to a male child, namely, Master Ansh. Opposite party no.3 with her son was brought and admitted to State Women Protection Home, Lucknow on 18.10.2013.
In a Habeas Corpus petition bearing No. 594 (H/C) of 2012, this Court appointed a Committee for monitoring the work of Women Protection Home which, on the basis of a visit to the Protection Home on 15.07.2014, prepared an inspection report and submitted the same to this Court in the aforesaid Habeas Corpus petition. The Committee brought certain points as suggestive measures in the interest of the inmates of Protection Home, to the notice of this Court through the report. One of the suggestions made by the said Committee was in respect of two deaf and dumb women inmates who have infant children with them. The relevant portion of the report of the said Committee appointed by this Court is as under:-
"Two deaf and dumb inmates of the institution have infant children with them. Name not known alias Naina (deaf and dumb) has one year old daughter Lovely and name not known alias Maina has a nine month old son Ansh. Deaf and Dumb inmates are unable to tell their home, so it is not possible to send them home. Naina is not looking after her child and sometime tries to kill her when she disturbs her. Other inmates are taking care of the children. Since this is a female institution the child has to be shifted to Bal Grih Shishu when he grows old. They communicated us with gestures that their children may be given to some person."
Since the children are living with their biological parent, so they doesn't come under the purview of the CWC and would not follow the channel of adoption through CWC. Instead they may be given in adoption, if required under HAMA. Though we are of the opinion that since parents are not in a position to provide them training for day to day chores and large life ahead, if parents are willing to give them to someone else, then it would be better in interest of the children.
This Court in the aforesaid Habeas Corpus petition No. 594 of 2012 in its order dated 18.07.2014 took note of the aforesaid suggestion made by the Committee and issued certain directions which are as follows:-
"16. It is apparent that these deaf and dumb mothers are not in a position to take care of their children. In fact, one of them continuously beat up her female child and there is a constant danger of her life.
17. Superintendent, Government Nari Niketan pleaded that if these children are given in adoption, at least, their future may be secure. Their mothers are deaf and dumb, who are unable to maintain themselves, it would, therefore, be expedient that these children are declared fit for adoption.
(18) Member Secretary, State Legal Services Authority is directed to provide legal assistance to the Superintendent, Govt. Nari Niketan to facilitate the adoption of these children."
On 26.07.2014, petitioners, the husband-wife duo moved an application before the Superintendent of State Women Protection Home stating therein that they were married about 19 years ago and a son was born out of their wedlock, who unfortunately died in an accident on 21.02.2009. In the application, it has been stated that the petitioners are issueless and as per medical report they cannot beget a child and hence, in these circumstances, they want to adopt a child and for the said purpose, they intend to take Master Ansh, who was being kept in the State Women Protection Home, in adoption. In light of these facts, through the application dated 26.07.2014 the petitioners prayed that Master Ansh may be given in adoption to them after following the requisite legal procedure.
The Women Protection Home and mother of the child, namely, Maina moved application before the District Judge on 20.08.2014 under Section 9 (5) of the Hindu Adoptions Act seeking permission of the court to give the child, Master Ansh in adoption as required under Section 9 (4) of the Hindu Adoptions Act. In the said application, it was stated that State Women Protection Home is keeping Master Ansh with his mother, who is deaf and dumb and further that his mother is not able to take care of her child, neither is she able to groom him. In the said application, it was also stated that in the Women Protection Home only female inmates can reside and that the male child can be kept upto the age of only seven years whereafter the said male child is not to be accommodated in the State Women Protection Home. It has also been stated in the said application that keeping in view the facts and circumstances, it would be appropriate that Master Ansh be permitted to be given in adoption to a couple who is issueless so that his future, grooming and eduction be secured. In the said application, it was also stated that the petitioners herein are husband and wife who were married about 19 years ago and their sole son died in an accident on 21.02.2009 rendering them issueless. In the application, it has further been stated that the petitioners have expressed their willingness and they intend to take Master Ansh in adoption. While making the application, in para 6 the details of Master Ansh has also been given, according to which, his date of birth is 11.09.2013 and his religion is Hindu. The details of petitioners were also mentioned in the application that they belong to an educated and affluent family who have submitted an income certificate revealing their income to be Rs. 80,000/- per month.
The application was taken up by the learned court below on 20.08.2014 which was ordered to be registered as miscellaneous case and notices were issued to the opposite parties (petitioners herein) and also to the District Magistrate. Notices were ordered to be published for general public in daily newspapers as well. The petitioners on publication of notice moved an application supported by an affidavit before the learned court below stating therein that they have moved an application seeking adoption of Master Ansh to the Superintendent of State Women Protection Home on 26.07.2014. Along with the said application, the petitioners also submitted medical certificates which reveal that they do not suffer from any ailment or any kind of disability. The income certificate was also submitted by the petitioners. The petitioners also stated that they have the capacity and right to take Master Ansh in adoption in terms of the provisions contained in Section 6 of the Hindu Adoptions Act.
Before the learned court below, an affidavit was filed by opposite party no.3 stating therein that she had already expressed her willingness to give the child in adoption to the petitioners. A report was submitted by one Sri Kaushlendra Kumar, Sign Language Interpreter, Dr. Shakuntla Mishra Rehabilitation University, Lucknow dated 13.10.2014 wherein he reported that on the basis of interaction with the mother using sign language, it revealed to him that she is ready to give Master Ansh in adoption. In his report, he also stated that on being asked through sign language as to whether she will give her child to the petitioner-Sohan Lal, the mother responded through sign language that Master Ansh be given to Sri Sohan Lal in adoption. The relevant extracts of the report dated 13.10.2014 submitted by Sri Kaushlendra Kumar, Sign Language Interpreter are quoted below:-
"iz'u ua0 1& esjs }kjk ladsr }kjk ewd cf/kj laokfluh eSuk ls ;g iz'u iwNk x;k fd ^rqe Bhd gks^ bldk mRrj ewd cf/kj laokfluh eSuk us ladsr ds ek/;e ls fn;k fd gk¡ Bhd gw¡A
iz'u ua0 2& esjs }kjk ladsr }kjk ewd cf/kj laokfluh eSuk ls ;g iz'u iwNk x;k ^D;k rqe vius cPps dks vius lkFk j[kuk pkgrh gks ;k mls fdlh vPNs ifjokj esa ns fn;k tk;^ bldk mRrj ewd cf/kj laokfluh eSuk }kjk ladsr }kjk fn;k x;k fd ^gk¡ mls ns nks^ A
iz'u ua0 3& esjs }kjk ladsr }kjk ewd cf/kj laokfluh eSuk ls ;g iz'u iwNk x;k fd ^D;k rqEgsa vius cPps dh ;kn ugh vk;sxh^A bldk mRrj ewd cf/kj laokfluh eSuk }kjk fn;k fd ^ugh^A
iz'u ua0 4& esjs }kjk ladsr }kjk ewd cf/kj laokfluh eSuk ls ;g iz'u iwNk x;k fd ^D;k rqe vius cPps dks ¼lkeus cSBs gq, O;fDr lksgu yky th½ dks ns nksxh^A bldk mRrj ewd cf/kj laokfluh eSuk }kjk fn;k x;k fd ^gk¡ ns nks^A
iz'u ua0 5& esjs }kjk ewd cf/kj laokfluh eSuk dks 'kiFk i= dh /kkjk 1 ls 5 lkadsfrd okrkZyki ds }kjk crk;h x;h o mldh lgefr lkadsfrd okrkZyki ls ewd cf/kj laokfluh eSuk }kjk nh x;h gSA
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The Sign Language Interpreter, Sri Kaushlendra Kumar has filed an affidavit before the learned court below reiterating the contents of his report and clearly stating therein that mother of the child was apprised of the contents of the affidavit filed by her. The Sign Language Interpreter also appeared before the learned court below on 16.10.2014 and stated that he is a Sign Language Interpreter in Dr.Shakuntla Mishra Rehabilitation University, Lucknow and further that he interpreted whatever was stated by mother of the child at the State Women Protection Home and that according to him the mother of the child has stated before him that she is unable to maintain her minor child and if this child is given in the custody of any suitable person she has no objection. Sri Kaushlendra Kumar also stated before the learned court below that when specific question was put to the mother of the child about giving the child to the petitioners, then she replied by indication that she did not have any objection.
However, the learned court below on 16.10.2014 recorded a finding that it is not a case where parents are giving their child in adoption out of their own free will and further that from perusal of the affidavit of mother of the child, it is clear that she herself is a destitute and is living in the State Women Protection Home and further that she is unable to look after her child. The learned court below in its order dated 16.10.2014 noted the order passed by this Court in the Habeas Corpus petition whereby Legal Services Authority was directed to provide legal assistance to the State Government Women Protection Home to facilitate the adoption and observed that application is liable to be disposed of in terms of the provisions of the Juvenile Justice Act and as such the State Women Protection Home was directed to summon the report of the Child Welfare Committee.
In compliance of the order dated 16.10.2014, the Child Welfare Committee, Lucknow visited the residence of the petitioners and submitted its report after interacting with the family members and neighbours of the petitioners, stating therein that socio-economic condition of the family and environment of the family is congenial for proper growth of the child. The Child Welfare Committee in its report submitted before the learned court below dated 18.10.2014 also expressed its opinion that the family, namely, family of the petitioners, is ideal to look after the child Ansh and, therefore, it recommended that the child be given in adoption to the petitioners. In the report, it was stated by the Child Welfare Committee that the petitioners have two houses where all the facilities for a happy living are available and further that they have good amiable relations with their neighbours. It was also indicated in the report that the petitioner-Sohan Lal is a lawyer by profession who also possesses agricultural land. The annual income of the petitioner was reported to be Rs.9,60,000/-. The report also contains medical certificates issued by the Medical Officer and the certificates verifying their character issued by the Tehsildar concerned. It was also reported that apart from undertaking several social works, the petitioners are also dutifully observing their family obligations and liabilities. A very positive opinion was, thus, expressed by the Child Welfare Committee which concluded with the recommendation that if the child is given in adoption to the petitioners, he will be provided with full care and protection and his future may also be secured.
Learned court below, however, by passing the impugned order dated 22.10.2014 has rejected the claim of the applicants for granting permission for adoption under the Hindu Adoptions Act. While proceeding to consider the adoption of the child under the provisions of Juvenile Justice Act, the learned court below in the impugned judgement has observed that Clause-6 of Chapter-I of the Guidelines Governing Adoption of Children, 2011 issued by the Central Government under Section 41 of the Juvenile Justice Act under the heading-Additional Eligibility Criteria for Prospective Adoptive Parents-prescribes that to adopt a child in the age group of 0-3 years, the maximum composite age of the Prospective Adoptive Parents should be 90 years and since in the instant case composite age of the petitioners is 91 years, which is more than the composite age prescribed in Clause-6 of the aforesaid guidelines, hence, the petitioners are not eligible to adopt the minor child whose date of birth is 11.09.2013. Thus, for the aforesaid reason, it is not only that the application moved by the State Women Protection Home under Section 9 (4) and (5) of the Hindu Adoptions Act was rejected as the case was ordered to be proceeded under the provisions of the Juvenile Justice Act, but the claim of the petitioners for adoption of Master Ansh has also been rejected on the ground that the composite age of the petitioners who are Prospective Adoptive Parents is more than 90 years.
The learned court below, however, has reiterated at more than one place in the impugned judgement that child is in need of care and protection and after rejecting the claim of the petitioners for adoption has directed the Superintendent, State Women Protection Home to initiate the process of adoption by following the procedure prescribed by the Central Adoption Resource Authority created under the Juvenile Justice Act. In the impugned order, it has also been recorded by the learned court below that though no age is prescribed for adoption under the Hindu Adoptions Act, however, it clearly appears that the inmate is deaf and dumb and hence she is unable to even tell her name or address. A further finding has been recorded that the learned court below is unable to ascertain that the child is Hindu by religion. Accordingly, it appears that only because the learned court below found itself unable to ascertain that the child, namely, Master Ansh is Hindu, the application preferred by the State Women Protection Home under Section 9 (4) read with section 9 (5) of the Hindu Adoptions Act was not proceeded with; rather the court below proceeded to treat the said application for adoption under the provisions of the Juvenile Justice Act.
Thus, the issue in question which arises for consideration of this Court in this case is as to whether in the facts and circumstances of the case the application moved by the applicants under the provisions of Section 9 (4) and (5) of the Hindu Adoptions Act was maintainable and as to whether the adoption of Master Ansh under the Hindu Adoptions Act, in the peculiar facts and circumstances of the present case, is legally permissible.
Before I proceed any further, I may note here that this Court, considering the sensitivity of the issue and concerns relating to future of the child, had requested Ms. Bulbul Godiyal, learned Additional Advocate General to assist the Court as Amicus Curiae, who provided very valuable assistance. This Court feels it appropriate to put on record the laudable assistance provided by the learned Additional Advocate General, Ms. Bulbul Godiyal.
Besides Ms. Bulbul Godiyal, Sri Kshemendra Shukla, learned counsel for the petitioners, Sri Ajai Pratap Singh, learned Standing Counsel for the Superintendent, State Women Protection Home and Dr. Ravi Kumar Mishra for the Child Welfare Committee have also been heard. The Court also acknowledges the assistance provided by Sri Rohit Tripathi, Advocate.
On 01.12.2014, this Court had passed the following order:-
"During course of these proceedings today, it has been submitted by Smt. Bulbul Godiyal, learned Additional Advocate General that she had an occasion to interact with the Superintendent of State Women Protection Home who disclosed that various gesture shown by the mother of the child and her usual behaviour and conduct while residing in the Protective Home, as observed by the Superintendent, forms enough material to decipher the religion to which the mother belongs, thus, I find it appropriate to require the Superintendent of State Women Protection Home to file her affidavit before this Court setting out therein the conduct, behaviour, general life pattern and gestures expressed by the mother at the Home.
Before the court below, an affidavit by Sri Kaushlendra Kumar, Sign Language Interpreter from Dr. Shakuntala Misra University for differently abled persons was filed. He had also submitted a report before this Court in Writ Petition No. 594 (HC) of 2012. Accordingly, it would be expedient that Sri Kaushlendra Kumar should� also interact with the mother through sign language and make his endeavor to decipher the religion to which the mother belongs. After said interaction, he shall file his affidavit by the next date of listing.
Learned Standing Counsel will inform the Superintendent of State Women Protection Home to facilitate the interaction of the Sign Language Interpreter, Sri Kaushlendra Kumar with the mother of the child. He will also apprise Sri Kaushlendra Kumar, Sign Language Interpreter and Superintendent of State Women Protection Home, of the order being passed today by the Court.
List this case on 10.12.2014, on which date, Sri Kaushlendra Kumar, Sign Language Interpreter and the Superintendent of State Women Protection Home shall be present before the Court."
Accordingly, affidavits by Sri Kaushlendra Kumar, Sign Language Interpreter, Dr. Shakuntla Mishra Rehabilitation University, Lucknow and by the Superintendent, State Women Protection Home have been filed before this Court. The Sign Language Interpreter, in his affidavit dated 15.12.2014 filed before this Court, has stated that he had interacted with the mother at the State Women Protection Home on 04.12.2014 and on the basis of his interaction with the mother, he has opined in the affidavit that the mother of the child, Maina is following Hindu religion and also that her son is being nurtured following tenets of Hindu religion.
The Superintendent of State Women Protection Home also, in her affidavit filed before this Court, has stated that she has observed the conduct, behaviour, general life pattern and gestures expressed by the mother of the child and on the basis of said observations, she stated in the said affidavit that the mother of the child is wearing pendent around her neck bearing the picture of Lord Shiva and Bichiyas in her toes and also that she prays with folded hands and offers her prayers in Lord Shiva temple situate in the campus of the Home. The Superintendent in her affidavit also stated that from various activities performed by the mother of the child, she appears to be following the Hindu religion.
Adoptions amongst Hindus, at present, are regulated by the provisions of the Hindu Adoptions Act.
Prior to enactment by the Parliament of the Hindu Adoptions Act, in the old Hindu Law only parents were capable to give a child in adoption. Since a child could be given in adoption only by his father or his mother and such giving was an essential part of the ceremony relating to adoption, an orphan could not be adopted. Adoption of an orphaned child amongst Hindus was possible only where any custom permitted such adoption. This legal position, prior to enactment of the Hindu Adoptions Act, 1956, was not satisfactory for the reason that it was an orphan who was needed to be adopted by someone and it is an orphan who could not be adopted for the reason that the law did not permit such adoption. The Central Legislature, being conscious of such an anomalous situation, while enacting the Hindu Adoptions Act provided space where even an orphan can now be adopted.
Section 9 of the Hindu Adoptions Act, apart from permitting the father and the mother, also permits the guardian of a child to give the child in adoption. Section 9 as it existed prior to its amendment in 1962 by the Parliamentary Act No. 45 of 1962 though permitted the guardian of a child to give him/her in adoption with the previous permission of the court, however, such adoption was permissible only in case the parents were dead or had completely and finally renounced the world or had been declared by a court to be of unsound mind. The provision, as it existed prior to 1962, thus, did not permit an abandoned child to be given in adoption by a guardian. It is also noticeable that the definition of "guardian" was also confined to mean only a testamentary guardian or a guardian appointed or declared by a court.
Prior to passing of Act No. 45 of 1962 by the Parliament, Section 9 (4) of the Hindu Adoptions Act stood as under:-
"Where both the father and the mother are dead or have completely and finally renounced the world or have been declared by a Court of competent jurisdiction to be of unsound mind, the guardian of child (whether a testamentary guardian or a guardian appointed or declared by a court) may give the child in adoption with the previous permission of the court."
Since the provisions relating to adoption of an orphan were not very satisfactory for the reason that the Act did not include the abandoned children to qualify for being given in adoption and the definition of "guardian" was also very narrow, the Hindu Adoptions and Maintenance (Amendment) Act (Act No. 45 of 1962) was enacted by the Parliament with the object of bringing the persons having the care and custody of the child within the meaning of "guardian" by suitably amending Section 9 (4) of the Principal Act and also for providing that an abandoned child or a child whose parentage is not known or whose religion cannot be ascertained and who is brought up as a Hindu shall be regarded as a Hindu by religion. The Statement of Objects and Reasons of Act No. 45 of 1962 enacted by the Parliament for amending Section 9 (4) of the Principal Act is extracted below:-
"Amending Act of 1962- "Under the Hindu Adoptions and Maintenance Act, 1956 the guardian of a child has been given the power to give the child in adoption with the previous permission of the Court. But this power can be exercised only by a testamentary guardian or a guardian appointed or declared by the Court as specified in Section 9 (4) of the Act. A person having the care and custody of a child has, however, no power to give the child in adoption although for all practical purposes he is the guardian of the child. Then again, there is no provision in the Act authorising the adoption of a child abandoned by both of his parents or of a child whose parentage is not known. Children are sometimes abandoned by their parents for fear of social approbrium, for reasons of poverty and for other reasons. If these children could be given in adoption, they might grow up in congenial home atmosphere as good citizens. These abandoned children are very often brought up in founding homes or other children's institutions. The manager of such homes or institutions having the care and custody of these children is, for all practical purposes, their guardian and there is no reason why he should not have the power to give the child in adoption with the permission of the Court like the testamentary guardian or the guardian appointed or declared by the Court. It is, therefore, considered that this lacuna in the law should be removed by suitably amending section 9 (4) of the Act so as to bring a person having the care and custody of the child within the meaning of 'guardian'."-Gazette of India, 1962, Pt.II, Sec. 2, Extra., page 475."
The Statement of Objects and Reasons of the Amending Act clearly encases the object of permitting abandoned children, brought up in foundation homes or other children institutions, to be given in adoption as the management of such homes or institutions having the care and custody of such orphaned children, for all practical purposes, is their guardian and hence, the Parliament in its wisdom thought it appropriate to provide for giving such a child in adoption by the management of such homes or institutions being his/her guardian, albeit with the permission of the court. Thus, by amending Section 9 (4) of the Principal Act, in the matter of giving an orphaned or abandoned child in adoption, the management of the care and protection homes, where such children reside, was brought at par with the testamentary guardian or the guardian appointed or declared by the court by inserting Explanation (ia) to Section 9 (4) of the Principal Act. The anomaly, which existed in law, thus, was sought to be removed by the Parliament.
The Act No. 45 of 1962, which enlarged the definition of the word "guardian" by inserting Explanation (ia) to sub-section (4) of Section 9 of the Hindu Adoptions Act, is quoted below:-
"An Act further to amend the Hindu Adoptions and Maintenance Act, 1956"
Be it enacted by Parliament in the Thirteenth Year of the Republic of India as follows:-
1. Short title- This Act may be called the Hindu Adoptions and Maintenance (Amendment) Act, 1962.
2. Amendment of section 2- In section 2 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), (hereinafter referred to as the principal Act), in the Explanation to sub-section (1)-
(a) in clause (b), the word "and" occurring at the end shall be omitted;
(b) after clause (b), the following clause shall be inserted, namely-
(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh and"
3. Amending of section 9.- In section 9 of the principal Act,-
(a) in sub-section (2), for the words, brackets and figure "sub-section (3)" the words, brackets and figures "sub-section (3) and sub-section (4)" shall be substituted;
(b) for sub-section (4) the following sub-section shall be substituted, namely:-
"(4) where both the father and the 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 child may give the child in adoption with the previous permission of the court to any person including the guardian himself";
(c) in the Explanation-
(i) in clause (i), the word "and" at the end shall be omitted;
(ii) after clause (i), the following clause shall be inserted, namely:-
'(ia)' "guardian" means a person having the care of the person of a child or of both his person and property and includes-
(a) a guardian appointed by the will of the child's father or mother, and
(b) a guardian appointed or declared by a court; and'.
4. Amendment of Section 11.- In section 11 of the principal Act, in clause (vi), after the words "from the family of its birth", the words "or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up" shall be inserted.
The application which has been dealt with by the learned court below was moved by the State Women Protection Home and the mother of the child jointly with the legal aid and advise provided by the U.P. State Legal Services Authority. It is relevant to point out at this juncture that no permission of the court is required to be obtained in case the mother of the child intends to give her child in adoption. The permission of the court is required in a situation 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 parentage of the child is not known. In such situations, in case, guardian of the child intends to give the child in adoption, previous permission of the court as envisaged in Section 9 (4) of the Hindu Adoptions Act is required.
Admittedly, in the instant case, right from the age of one month, the child, Master Ansh has been under the care and protection of State Women Protection Home, though along with his mother. The mother after giving birth to Master Ansh on 11.09.2013 in District Women Hospital at Allahabad was admitted to State Women Protection Home, Lucknow on 18.10.2013 and since then Master Ansh is under care and protection of the State Women Protection Home, where he is being brought up. It has come on record that Master Ansh is not being taken care of by his mother, who being deaf and dumb, besides herself being destitute, is not in a position to provide due care and protection to an infant of the age of Master Ansh. It has also come on record that the mother has clearly expressed not only her willingness to give the child in custody of some family but has also expressed to the Sign Language Interpreter that in case the child is given to the custody of someone else, she will have no longing for the child.
Section 9 (4) of the Hindu Adoptions Act permits the guardian of a child to give him/her in adoption with the previous permission of the court in the following situations:-
(a) where both the father and mother are dead,
(b) where both the father and the mother have completely and finally renounced the world,
(c) where both the father and the mother have abandoned the child,
(d) where both the father and the mother have been declared by a court of competent jurisdiction to be of unsound mind and,
(e) where the parentage of the child is not known.
So far as the present case is concerned, admittedly, as to whether the father of the child is alive or dead is not known. In fact, no information about the father of the child is available. The information about the mother, of course, is available. She has not completely and finally renounced the world, neither has she been declared to be of unsound mind by any court of competent jurisdiction. Since the information about the mother of the child is available on record, it can also not be said that the parentage of the child is not known.
What, however, needs to be considered in this case is as to whether the child can be said to have been abandoned. So far as the father of the child is concerned, since nothing about him is known, neither has anyone in any capacity claimed to be the father of the child, it can safely be concluded that the father of Master Ansh has abandoned him. However, in a case where child can be given in adoption where he/she has been abandoned, the abandonment of the child by both the father and the mother needs to be established.
The word "abandoned" is an adjective which means a deserted or forsaken person or animal or a thing. The verb "abandon" means to give up completely or to forsake or desert a person or a thing or to give up to another's control or mercy.
In the instant case, it is found in the testimony of the Sign Language Interpreter that the mother of the child has not only shown her willingness to give the child in adoption but has also expressed that she will have no longing for the child even if he is given to custody of a family.
Considering the fact that the mother of the child is incapable of taking care of her own self being a destitute lady who is presently living in State Women Protection Home and also taking into consideration the evidence on record including the affidavit filed by the Sign Language Interpreter and the Superintendent of the State Women Protection Home, I have no hesitation to hold that the mother has deserted the child as she has expressed that she will have no longing for the child.
Desertion of the child in the peculiar facts and circumstances of the present case, would, in my opinion, amount to abandonment of the child and hence, in this view of the matter, the guardian, namely, the State Women Protection Home becomes capable of giving the child in adoption, though, with the previous permission of the court which should be satisfied that the adoption is for the welfare of the child.
There is enough material on record to conclude that the welfare of the child can be secured, if he is permitted to be given in adoption to the petitioners. The petitioners are financially sound. They enjoy good reputation in the society and are medically fit and capable to adopt the child. The capability of the petitioners to adopt the child is clearly made out from the report submitted to the learned court below by the Child Welfare Committee, which is a Statutory Committee, and I have no reason to disbelieve the report submitted by the Child Welfare Committee, contents of which are fortified by the documents issued by the competent authorities, such as medical certificates, character certificates and income certificate etc.
Having come to the conclusion that the child is an abandoned child within the meaning of sub-section (4) of Section 9 of the Hindu Adoptions Act and also that the State Women Protection Home has to be treated a "guardian" within the meaning of explanation (ia), appended to Section 9 (4) of the Hindu Adoptions Act, what now needs to be considered is as to whether the child, namely, Master Ansh can be given in adoption under the Hindu Adoptions Act.
Section 10 of the Hindu Adoptions Act provides that unless a person is Hindu, he/she shall not be capable of being taken in adoption. Section 10 further provides that a person to be capable of being taken in adoption, apart from being Hindu, should not have already been adopted, he/she should not have married, unless the custom or usage so permits and that he/she should not have completed the age of 15 years, unless any such custom or usage applicable to the parties concerned so permits. Admittedly, Master Ansh has not already been adopted and he is neither married nor has completed the age of 15 years.
The learned court below has virtually rejected the application seeking permission under Section 9 (4) and (5) of the Hindu Adoptions Act on the ground that it is not ascertainable as to whether the child is a "Hindu by religion". However, what needs to be emphasized by the court at this juncture is that the application of the Hindu Adoptions Act is not confined to a person who is a "Hindu by religion" alone; it applies to Buddhists, Jainas or Sikhs by religion and also to a person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not be governed by the Hindu law. It is applicable even to an abandoned child or to a child whose parentage is not known provided he/she is brought up as a Hindu. Thus, the Act is applicable also to a person who can be "regarded as Hindu".
Section 2 of the Hindu Adoptions Act, which embodies the application of the said Act, is quoted below:-
"2. Application of Act- (1) This Act applies-
(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate for illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged,
(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who is either case is brought up as a Hindu, Buddhist, Jaina or Sikh, and
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh, religion".
Who is a Hindu, is a question difficult to define. Dealing with the issue as to who is a Hindu, Hon'ble P.B.Gajendragadkar, the then Chief Justice of India in the case of Shastri Yagnapurushdasji and others vs Muldan Bhundardas Vaishya and another, reported in AIR 1966 SC 1119 has elaborately discussed the matter and has concluded that Hinduism can safely be described as a way of life based on certain basic concepts. I find it appropriate to quote paragraphs no. 27, 29, 30, 31, 34, 37 and 39 of the judgement in the case of Shastri Yagnapurushdasji and others (supra) which are as under:-
"27. Who are Hindus and what are the broad features of Hindu religion, that must be the first part of our enquiry in dealing with the present controversy between the parties. The historical and etymological genesis of the word "Hindu,' has given rise to a controversy amongst indologists; but the view generally accepted by scholars appears to be that the word "Hindu" is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. "That part of the great Aryan race", says Monier Williams, "which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indus). The Persians pronounced this word Hindu and named their Aryan brethren Hindus. The Greeks, who probably gained their first ideas of India from the Persians, dropped the hard aspirate, and called the Hindus "Indoi". (1)."
29. When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.
30. Confronted by this difficulty, Dr. Radhakrishnan realised that "to many Hinduism seems to be a name without any content. Is it a museum of beliefs, a medley of rites, or a mere map, a geographical expression?"(3) Having posed these questions which disturbed foreigners when they think of Hinduism, Dr. Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact and has thus been able to maintain its supremacy and its youth. The term 'Hindu', according to Dr. Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well-defined geographical area. Aboriginal tribes, savage and half-civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practised different rites (Kurma Purana).
31.Monier Williams has observed that "it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism. It presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an ever-increasing area of country and finally resolving itself into an intricate Delta of tortuous steams and jungly marshes........ The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds.
34. Max Muller who was a great oriental scholar of his time was impressed by this comprehensive and all-pervasive aspect of the sweep of Hindu philosophy. Referring to the six systems known to Hindu philosophy, Max Muller observed: "The longer I have studied the various systems, the more have I become impressed with the truth of the view taken by Vijnanabhiksu and others that there is behind the variety of the six systems a common fund of what may be called national or popular philosophy, a large manasa (lake) of philosophical thought and language far away in the distant North and in the distant past, from which each thinker was allowed to draw for his own purposes
37. The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Dnyaneshwar and Tukaram initiated the Varakari cult; Guru Nank inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the teachings of Ramakrishna and Viveka-nanda, Hindu religion flowered into its most attractive, progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.
39. Whilst we are dealing with this broad and comprehensive aspect of Hindu religion, it may be permissible to enquire what, according to this religion, is the ultimate goal of humanity? It is the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute absorption and assimilation of the individual soul with the infinite. What are the means to attain this end ? On this vital issue, there is great divergence of views; some emphasise the importance of Gyan or knowledge, while others extol the virtues of Bhakti or devotion; and yet others insist upon the paramount importance of the performance of duties with a heart full of devotion and mind inspired by true knowledge. In this sphere again, there is diversity of opinion, though all are agreed about the ultimate goal. Therefore, it would be inappropriate to apply the traditional tests in determining the extent of the jurisdiction of Hindu religion. It can be safely described as a way of life based on certain basic concepts to which we have already referred."
The Constitution of India while enunciating the guarantee of freedom of conscience and religion in Article 25 specifically provides that any reference to Hindus shall be construed as including a reference to Sikh, Jaina and Buddhist.
In tune with the aforementioned constitutional provision, the Hindu Adoptions and Maintenance Act has extended the application of the said Act. Its application extends to all persons who can be "regarded as Hindus" and the Act does not restrict its application only to a person who is a "Hindu by religion".
Explanation (b) to Section 2 (1) of the Hindu Adoptions Act provides that any child legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs, shall be Hindu. Explanation (bb) to Section 2 (1) also provides that a child, whether legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who is brought up as a Hindu shall also be a Hindu.
On record of this case, there is enough material to conclude that at least one of the parents of the child, namely, the mother is a Hindu. It can also be concluded, as has been observed above, that the child, Master Ansh has been abandoned both by his father and mother.
This Court by means of order dated 01.12.2014 had required the Sign Language Interpreter to interact with the mother and accordingly file his affidavit. By the same order, the Superintendent of the State Women Protection Home was also required to file her affidavit.
The Superintendent of the Women Protection Home in her affidavit has clearly stated that she had observed the mother of the child regarding her conduct, behaviour, general life pattern and gestures expressed by her. Based on the said observations, it appeared to the Superintendent that the mother of the child appears to be following Hindu religion. Para 5 of the said affidavit dated 10.12.2014 filed before this Court is being extracted below:-
"5. That in compliance of the aforesaid order dated 01.12.2014 passed by the Hon'ble Court, the deponent has observed the mother of the child regarding her conduct, behaviour, general life pattern and gestures expressed by her and has submitted her report stating therein that the mother of the child is wearing pendent around her neck bearing photo of Lord Shiva and bichia on her feet and she prays with folded hands and offers her prayers in the Lord Shiva temple situated in the campus further in various activities performed, she appears to be Hindu follower. Copy of the report is being filed herewith as Annexure No.A-1 to this affidavit."
The Sign Language Interpreter, Sri Kaushlendra Kumar, who is employed with Dr.Shakuntla Mishra Rehabilitation University, Lucknow in his affidavit has stated that on the basis of conversation made by him with the mother of the child through sign language he has concluded that the mother of the child is following the Hindu religion and further that she has been nurturing her child following the Hindu religion. Paragraph 5 of the said affidavit filed by the Sign Language Interpreter dated 15.12.2014 is also relevant to be quoted below which runs as under:-
"5. That in compliance of the aforesaid order dated 01.12.2014 passed by th Hon'ble Court, Sri Kaushlendra Kumar, Sign Language Interpreter, Dr.Shakuntla Mishra Rehabilitation University, Lucknow, has interacted with the mother of the child with the help of sign language, following conversation/observations/questions/answers have been recorded by Sri Kaushlendra Kumar as under:-
(1) In the evening at 6.30 p.m. of 4.12.2014, when Sri Kaushlendra Kumar reached the Women Protection Home, then the mother of the child namely Maina came with smile and with folded hands and wished him Namastey.
(2) Question: How are you ? Answer: Fine.
(3) Question; Maina What are you doing nowadays? Answer: Sleeping, awakening in morning brushing teeth, bathing, performing pooja and eating food.
(4) Question: Where do you perform your pooja? Answer: Temple of Lord Shiva (showing the direction by hand)
(5) Question: You perform pooja of which of the gods (showing her pictures in the office)? Answer: Lord Ganesha and Sai Baba (directing at the pictures)
(6) Question: Do you perform "Namaz" and who offers "Namaz" here? Answer: No. (she caught hold of three girls, namely, Jainab, Meena, Kaifiya showing that they offer the "Namaz")
(7) Question to Jainab, Meena, Kaifiya: Does Maina come along with you to offer "Namaz"? Answer from all the three: No.
(8) Question to Jainab, Meena, Kaifiya: Have you seen Maina with folded Pooja? Answer: She stands with folded hands before the photo of Lord Hanuman and offers her prayer in the temple.
(9) Question: How do you perform pooja, go and bring your pooja material? Answer: Maina went inside the temple with her head covered with her dupatta, left her slippers outside the temple, folded her hands and then brought the pooja material. Maina with actions showed offering of flowers, putting teeka on foreheard etc. and gave Prasad to her son.
(10) Question: Whose pooja do you perform (showing the pictures of Saibaba, Lord Ganesha, Jesus Christ, Mother Mary, Goddes Durga, Kasjib, Lord Buddha): Answer: (did not recognize Jesus Christ, Mother Mary and while showing Mazar showed her finger towards Jainab, Meena, Kaifiya. Maina put her fingers on photos of Saibaba, Lord Ganesha and Goddess Durga.
Hence, on the basis of the aforesaid conversation, Sri Kaushlendra, has opined that the mother of the child namely, Maina is following the Hindu religion and is also nurturing her son following the Hindu religion. Copy of the report of Sri Kaushlendra Kumar, Sign Language Interpreter, Dr. Shakuntala Mishra Rehabilitation University, Lucknow submitted before the Superintendent, Rajkiya Mahila Sharajlaya, Lucknow is being filed herewith as Annexure No.A-1 to this affidavit." Thus, there is enough evidence on record to conclude that one of parents of the child, namely, his mother is a Hindu. Therefore, in accordance with the provisions contained in Explanation (b) appended to Section 2 (1) of the Hindu Adoptions Act, since one of the parents of the child is a Hindu and the child has been brought up in the Hindu traditions, the finding recorded by the learned court below that it is not decipherable as to whether the child is a Hindu or not, cannot be permitted to be sustained. The child Master Ansh can, therefore, be "regarded as Hindu" both in terms of Explanation (b) and Explanation (bb) to Section 2 (1) of the Act.
In the light of above, since the child has been brought up as a Hindu and has been abandoned by his parents (reasons for arriving at the conclusion that the child is an abandoned child have already been given above), I do not have the slightest hesitation to hold that Master Ansh can, thus, be given in adoption as he is capable of being taken in adoption. This Court also concludes that the petitioners i.e. the Prospective Adoptive Parents have the capacity to adopt and also that the guardian (State Women Protection Home) has the capacity to give the child in adoption.
Section 6 of the Hindu Adoptions Act provides that for an adoption under the Act to be valid, the person adopting should have the capacity and the right to take in adoption, the person giving in adoption should have the capacity to do so and the person adopted is capable of being taken in adoption.
As per sb-section (4) of Section 6, an adoption to be valid, has to be in compliance with the other conditions mentioned in Chapter II of the Act.
Section 9 (4) and (5) fall in Chapter II of the Act. For a valid adoption, where the child is to be given in adoption by a guardian, court's permission is required to be obtained as is envisaged in Section 9 (4).
Having held that in the instant case the requisite conditions of a valid adoption as envisaged in Sections 6 and 10 of the Hindu Adoptions Act are fulfilled, what now needs to be examined for dealing with the application seeking permission to give the child in adoption is as to whether the adoption being sought for is for the welfare of the child.
There is enough material on record to establish that the child was born to a destitute lady who, apart from having the said misfortune, is also deaf and dumb. She herself is not capable of taking her own care and is living in the State Women Protection Home. She has already abandoned her child by showing no sense of longing for him. No information is available as to who is the father of the child.
In such circumstances, it can safely be inferred that the child, Master Ansh can not be provided the attention, care and protection at the Protection Home which he needs for his grooming as a capable and self reliant citizen of the Society. His future is not secured at the place where he is presently residing. After he attains the age of seven years, he will have to be shifted from the State Women Protection Home. In these circumstances, the welfare of the child cannot be protected, if he is brought up at the Home.
Regarding capacity and capability of the petitioners i.e the Prospective Adoptive Parents, the record of the case contains enough material which goes on to show that they have all the facilities, financial and other, to provide Master Ansh an atmosphere where his welfare, grooming and future can be secured.
In the result, for the reasons given and discussions made above, the impugned order dated 22.10.2014, passed by the learned court below is liable to be quashed.
Accordingly, the writ petition is allowed and the judgement and order dated 22.10.2014, passed by the learned Additional Sessions Judge, Court No.9, Lucknow in Misc. Case No.138 of 2014 is hereby quashed.
The Court has already observed above that all the conditions required for a valid adoption of Master Ansh according to the Hindu Adoptions and Maintenance Act,1956 are fulfilled, hence, it would only be futile to remit the matter to the learned court below for adjudicating the application moved by the State Women Protection Home seeking permission for giving the child in adoption afresh.
The application moved by the State Women Protection Home seeking permission for giving Master Ansh in adoption to the petitioners as required under Section 9 (4) and (5) of the Hindu Adoptions and Maintenance Act, 1956, thus, is hereby allowed and the permission for giving the child in adoption is accordingly granted.
It is further provided that rest of the requisite legal formalities for adoption of Master Ansh shall be completed by all concerned, including the parties to these proceedings, within a period of six weeks.
There will be no order as to costs.
Order Date :- January 27, 2015 Renu/-
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