The guardian of a child must obtain permission from the court for giving the child in adoption, as mandated under Section 9(4) of The Hindu Adoption and Maintenance Act, 1956.

JUDGMENT :

1. Heard Sri Amitabh Agrawal, learned counsel for the petitioner and Sri Sandeep Kumar Srivastava for the Union of India.

2. The petitioner and his wife Smt. Shalu are both residents of Bangalore.

3. The petitioner has preferred this writ petition seeking certain direction upon respondent no. 2 to complete the process of adoption of the son adopted by the petitioner and his wife.

4. The petitioner alleges that the court of Child Welfare Committee, Varanasi constituted under The Juvenile Justice (Care and Protection of Children Act, 2000 (in short Juvenile Act) vide order dated 22.7.2013 permitted adoption of a two year two months old child Kabir Kuntal @ Nirmal who was under the care and guardianship of Matrichaya Shishu Grih, Varanasi. Consequent to the aforesaid permission the child was adopted by the petitioner and his wife on 25.7.2013 and ever since then he is under their care and they are acting as the adoptive family of the said child. However, the process of adoption of the said child could not be completed as subsequently the office bearers of respondent no. 5 declined to co-operate. The complaints or applications made by the petitioner to the Central Adoption Resource Authority, Specialized Adoption Agency constituted under the Juvenile Act have fallen to deaf ears.

5. In order to issue any direction for completion of process of adoption of the aforesaid child, it would be prudent on our part to examine the process of adoption contemplated under The Hindu Adoption and Maintenance Act, 1956 (in short Adoption Act) which is a substantive law on the subject.

6. It is worth mentioning herein that we presume that the child under adoption is a Hindu, in as much as, the petitioner and his wife are Hindus. He was living in an orphanage at Varanasi and there are no pleadings to the effect that he is of another religion and not a Hindu.

7. The aforesaid Adoption Act vide section 6 provides for the requisites of valid adoption and inter-alia vide Section 7 and 8 provides for the capacity of male and female Hindu to take a child in adoption. Section 9 of the Adoption Act is more relevant for our purpose. It contemplates that where both the father and mother of a child are dead or have completely and finally renounced the world or has abundant the child or have been declared by the court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption but with the previous permission of the court.

8. For the sake of convenience the relevant Sub-Section (4) of Section 9 of the Adoption Act is reproduced herein below:-

"(1). No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

(2).............................

(3).............................

(4). 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 the parentage or the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself."

(5).............................."

9. A reading of the aforesaid provision makes it clear that where a child has been abandoned by both the father and mother or where the parentage of the child is not known, the guardian is obliged to obtain permission of the court for giving the child in adoption.

10. In the instant case in the absence of any pleadings regarding the parentage of the child in question, as the child was in an orphanage it would be deemed that he has been abandoned both by his father and mother or that his parentage is not known. In view of the above, the guardian of the child ie. orphanage in whose care the said child was living was obliged to obtain permission of the court to give him in adoption.

11. It may be fruitful to mention he