Whether Statutory Provision Can Be Declared Ultra Vires Without A Specific Challenge In Pleadings?

While hearing learned counsels appearing for the parties, we asked Shri B.H. Marlapalle, learned senior counsel along with Shri Shibashish Mishra appearing on behalf of the respondents and intervenors, as to how, in absence of any pleading setting out grounds challenging the vires of Rule 4(b) and in the absence of seeking any relief to that effect, the High Court was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? In response, learned senior counsel has fairly stated that it is a defect in the pleadings as well as in the relief sought before the CAT and in the writ petition. But still, they made an unsuccessful attempt to satisfy this Court that the said rule appears to be discriminatory and therefore the High Court has rightly exercised the jurisdiction while passing the impugned order. It is a trite law that for striking down the provisions of law or for declaring any rules as ultra vires, specific pleading to challenge the rules and asking of such relief ought to be made, that is conspicuously missing in the present case. In the absence of such a pleading, the Union of India did not have an opportunity to rebut the same. The other side had no opportunity to bring on record the object, if any, behind the Rules that were brought into force. We are also of the considered view that, in the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires in the above fact situation. Therefore, the High Court was not justified to declare Rule 4(b) as ultra vires.{Para 9}

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2299 OF 2010

UNION OF INDIA & ORS. Vs MANJURANI ROUTRAY & ORS. 

Author: J.K. Maheshwari, J.

Citation: 2023INSC787.

Dated: SEPTEMBER 01, 2023.

Print Page

Under which circumstances the court must relegate parties to adoption petition to substantive suit?

  The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. In face of the objection raised by the biological parents, the issue could not be decided in summary manner as decided by the Civil Court in the Adoption Petition. The inquiry contemplated under the provisions of HAMA as regards the actual giving and taking of the child in adoption with the intent of transferring the child from the family of the biological parents to the family of adoptive parents was not conducted in the proceedings of Adoption Petition No 189 of 2021. The biological parents have disputed that the adoptive parents were present at the time of execution of the Deed of Adoption and it is their contention that the child was handed over to Ms. Julia of AHAM Foundation. Clause (vi) of section 11 of HAMA emphasizes give and take of child with intent to transfer the child from one family to another. The intention will have to be gathered from the conduct of parties at the time of actual give and take of the child which can be only conclusively proved after the evidence in that behalf has been led. In wake of the dispute being raised as regards the actual giving and taking of the child with intent to transfer the child from one family to another, evidence was required to be led.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

Print Page

Whether the court can entertain miscellaneous application after disposal of main petition?

  The adoption petition was disposed of on 16th March, 2022 and Misc. Application was filed on 18th August, 2022. The provisions of Order 20 Rule 3 of Code of Civil Procedure (CPC) provides that the judgment once signed shall not afterwards be altered or added to save as provided by Section 152 or on review. I find considerable force in the submission of learned counsel for Petitioner that once the adoption petition was disposed of by order dated 16th March, 2022, the City Civil Court became functus officio and could not have entertained Misc Application No.137 of 2022. Pertinently at the time of passing of the order dated 8th March, 2023 in Misc. Application No.137 of 2022, the same Court was seized of Short Cause Suit No.2830 of 2022 and passed the order in Notice of Motion No.4791 of 2022 on the same day. In spite of being functus officio, the City Civil Court has, on the basis of arguments and documents, decided the miscellaneous application and vide order dated 8th March, 2023 directed the custody to be handed over to the respondents herein which cannot be sustained. {Para 38}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

Print Page

Whether government circular have overriding effect over statutory provisions?

  As regards the Government Circulars relied upon by learned counsel for the respondents, the circular dated 15th May, 2015 provides that as regards non institutional adoptions, registered adoption deed is enough and there is no need to produce adoption order of a court for such cases. The circular dated 31st January, 2018 the same is in respect of adoptions through institutions. A reading of the said circulars cannot be interpreted to mean that the adoption deed is required to be mandatorily registered. In any case the government circulars cannot override the statutory provisions and the circulars have been issued to facilitate the registration of births and issuance of birth certificate in respect of adopted child. {Para 39}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

Print Page

Whether it is mandatory to register adoption deed?

 The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. This was not done and the petition was rejected. The second ground was that the adoption deed was not registered. In that context if we peruse Section 16 of HAMA, it raises a statutory presumption as to registered documents relating to adoption provided that the condition precedent is satisfied and cannot be interpreted to mean that the adoption deed is required to be registered. In that context if we peruse the provisions of Section 17 of Indian Registration Act, 1908, the deed of adoption does not find mention in the documents required to be compulsorily registered.  The provisions of HAMA do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. In the present case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption. 

{Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Print Page

Whether provision of central Act struck down by high court of one state can be selectively applied in other states?

In view of the aforesaid position, it is accepted that the law would be finally laid down by the Hon'ble Supreme Court and thus there is no point in keeping this petition pending and whatever the declaration of law by the Hon'ble Supreme Court would be equally applied.  The only question is as to what would happen till the Hon'ble Supreme Court examines the issue.  In this behalf, if the Hon'ble Supreme Court had stayed or would stay the operation of the Judgment, then only could those provisions struck down again come in force.

4. It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in other States.  Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon'ble Supreme Court upsets the Judgment or stays the operation of the Judgment.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 03.08.2016

 Dr.T.Rajakumari                     V  Government of Tamil Nadu,

Coram:

 Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE

 Mr.Justice R.MAHADEVAN

W.P.Nos.39022 and 36735 of 2015

Citation:AIR 2016 Madras 177

Print Page