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High Court Of Calcutta
D. P. KUNDU
CHANDRA NATH SADHU - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 10872 (W) Of 2002
Decided On : 05/23/2003
HINDU ADOPTION AND MAINTENANCE ACT - ADOPTION - VALIDITY - CONSENT OF NATURAL FATHER - ESSENTIAL - DIVORCE BY MUTUAL CONSENT - NO EFFECT ON FATHER'S RIGHT TO CONSENT - GUARDIANSHIP OF MINOR CHILD - NATURAL FATHER AND MOTHER - JOINT GUARDIANS - DIVORCE - NO EFFECT ON GUARDIANSHIP - MUNICIPALITY - NO AUTHORITY TO CHANGE NAME/FAMILY PARTICULARS OF CHILD IN BIRTH CERTIFICATE BASED ON INVALID ADOPTION.
Fact of the Case:
The writ petitioners, a brother and sister, sought to adopt the minor child of the respondent No. 4, who was the natural mother of the child, and the respondent No. 5, who was the natural father of the child. The adoption was made by executing a Deed of Adoption in the District Sub-registry Office at Hooghly. The respondent No. 5, the natural father, was not a signatory to the Deed of Adoption and did not consent to the adoption. The petitioners also relied on a petition filed under section 13b of the Hindu Marriage Act, 1955, in which the respondent No. 4 and the respondent No. 5 had agreed that the respondent No. 4 would be the natural guardian of the child. The petitioners sought a writ of mandamus directing the Municipality to change the name/family particulars of the child in the Birth Certificate pursuant to the Deed of Adoption and the order passed in the petition under section 13b of the Hindu Marriage Act, 1955.
Finding of the Court:
The Court held that the adoption was invalid as it was not made in accordance with the provisions of section 9(2) of the Hindu Adoptions and Maintenance Act, 1956, which requires the consent of the natural father for the adoption of a child. The Court further held that the petition under section 13b of the Hindu Marriage Act, 1955, and the order passed therein did not take away the right and capacity of the respondent No. 5, the natural father, to give the child in adoption. The Court also held that the Municipality had no authority to change the name/family particulars of the child in the Birth Certificate based on an invalid adoption.
Issues: 1. Whether the adoption of the minor child by the petitioners was valid in the absence of the consent of the natural father? 2. Whether the petition under section 13b of the Hindu Marriage Act, 1955, and the order passed therein took away the right and capacity of the natural father to give the child in adoption? 3. Whether the Municipality had the authority to change the name/family particulars of the child in the Birth Certificate based on an invalid adoption?
Ratio Decidendi: 1. Section 9(2) of the Hindu Adoptions and Maintenance Act, 1956, requires the consent of the natural father for the adoption of a child. 2. A petition under section 13b of the Hindu Marriage Act, 1955, and the order passed therein do not take away the right and capacity of the natural father to give the child in adoption. 3. The Municipality has no authority to change the name/family particulars of a child in the Birth Certificate based on an invalid adoption.
Final Decision: The writ application was dismissed.
( 1 ) IN this writ proceeding, as appears from the cause title of the writ application, the writ petitioners are ? (1) Sri Chandra Nath Sadhu, son of Jatirindra Nath Sadhu, of Masterpara, P. O. Tribeni, District: Hooghly, at present residing at 62, Benimadhabtala, Post Office: Tribeni, Police Station: Mogra, District: Hooghly and (2) Sri Subham Laha, being minor represented by his adoptee father Chandra Nath Sadhu, residing at 62, Benimadhabtala, Post office: Tribeni, P. S. : Mogra, District: Hooghly?. The respondent No. 4 in the writ application is Smt. Sutapa (Laha) Sadhu, daughter of Jatirindra Nath Sadhu, 62, Benimadhabtala, Post office: Tribeni, Police Station: Mogra, District: Hooghly. The respondent No. 4 is the natural mother of the writ petitioner No. 2. The writ petitioner No. 1 claims to be the adoptive father of the writ petitioner No. 2.
( 2 ) ON 24. 3. 2003 this Court passed the following order:leave granted to the learned advocate for the petitioner to add the name of Santanu Laha son of Late Jagat Laha of Barasat, 34, Dasabhujatala, Chandernagore, P. O. and P. S. Chandernagore, District: Hooghly as added respondent No. 5 here and now. The petitioner is directed to serve copy of the writ application upon the added respondent No. 5 within 7 days from today and file affidavit of service thereto showing actual service on the next date. Let the matter stand adjournment for 10 days and appear in the list on 4. 4. 2003 under the heading Special Fixed Listed Motion?.
( 3 ) THEREAFTER Shri Santanu Laha, respondent No. 5 was added as respondent in the writ petition. The respondent No. 5 is the natural father of the writ petitioner No. 2. From the affidavit-of-service affirmed by Shri Dilip Sadhu on 4. 4. 2003 it appears that the respondent No. 5 has been served with a notice dated 25. 3. 2003 issued by Smt. Sanghamitra Nandy, advocate for the writ petitioners alongwith a copy of the writ application. In spite of such service the respondent No. 5 chose not to appear and contest this proceeding.
( 4 ) THE respondent No. 4 and the respondent No. 5 married each other and the marriage between the respondents No. 4 and 5 was solemnised according to Hindu rites and customs on 5. 2. 1996. Out of the wedlock of the respondents No. 4 and 5 the writ petitioner No. 2 Shri Subham Laha was born on 10. 10. 1998. Admittedly even now the writ petitioner No. 2 is a Hindu minor. Section 6 of the Hindu Minority and Guardianship Act, 1956 reads as follows:natural Guardians of Hindu minor.-The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a)in the case of a boy or unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinary be with the mother; (b)in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c)in the case of a married girl-the husband; provided that no person shall be entitled to act as the natural gurardian of a minor under the provisions of this section- (a)if he has ceased to be a Hindu, or (b)if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (yati or sanyasi)? (emphasis added)
( 5 ) THUS according to section 6 of the Hindu Minority and Guardianship Act, 1956, in case of the writ petitioner No. 2, who is a Hindu minor boy, natural guardians are respondent No. 5, the natural father and after him the respondent No. 4, the natural mother.
( 6 ) UNFORTUNATELY the relationship between the respondents No. 4 and 5 had come to a stage that it was not at all possible for them to live together as husband and wife any more. The respondent No. 4 and the respondent No. 5 jointly presented a petition under section 13b of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of
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