Sanjay Karol, CJ.—

BACKGROUND AND RELIEFS SOUGHT

The present set of writ petitions filed in the nature of public interest litigation seek quashing of letter bearing No. 50- 24/2022-3502 dated 02.09.2022 issued by the State Election Commission, Bihar (hereinafter referred to as the ‘Commission’) wherein it is stated that if a candidate to the municipal election gives one of his/her children in adoption, they will continue to be the biological parent of the said child and therefore be disqualified from contesting elections as having a third child, will hit at the disqualification provision.

2. Further a declaration is sought that a person having three children having given up one child in adoption could not be termed as the biological parent of the said child. Still further, that as a result of this adoption, such person shall not be disqualified u/s 18(1)(m) of the Bihar Municipal Act, 2007 (hereinafter referred to as the ‘Municipal Act’).

ARGUMENTS ADVANCED

3. The petitioner is a practicing advocate of this Court and in furtherance of the relief sought as stated above, has submitted that the impugned letter is arbitrary and illegal giving a meaning to a provision of the Municipal Act, which it itself does not purport.

4. It is submitted that Section 18(1)(m) talks about the person interested in contesting elections not having more than two living children one year after the commencement of the Act. And so, if one of the three children of the potential candidate has died, he/she cannot be said to have more than two living children.

5. In support of the above submissions, the petitioner cites Section 12 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act’). Section 12 of the Act reads as under:—

12. Effects of adoption.—An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that—

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

6. It is then submitted that the Act is a parliamentary legislation and therefore, no other legislation much less any letter or circular can alter or change, what has been set out in such legislation. In other words once a person is given in adoption, relations with the biological family are severed. A disqualification on this ground cannot be held good in law.

7. Section 63 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is also referenced. It reads as under:—

“63. A child in respect of whom an adoption order is issued by the court, shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family:

Provided that any property which has vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child subject to the obligations, if any, attached to the ownership of such property including the obligations, if any, to maintain the relatives in the biological family.”

8. In light o