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2023 Supreme(Online)(Bom) 1719
HIGH COURT OF BOMBAY
Sharmila U. Deshmukh, J
Jeetendra Gorakhnath Singh – Appellant
Versus
Yash Suresh Malani – Respondent
Writ Petition No. 6461 of 2023 | Adoption Petition No.189 of 2021 | Review Petition No.190 of 2022 | Miscellaneous Application No.137 of 2022 | Short Cause Suit No.2830 of 2022
For the Appellants/Petitioners: Ms. Sneha Phense, Ms. Savita Sawalkar, Ms. Gunjan Tamhane i/b Ajit Tamhane
For the Respondents: Ms. Edith Dey i/b Mikhanil Dey
Adoption requires both the execution of a deed and the ceremonial act of giving and taking, which leads to a valid adoption under Hindu law. Evidence must support consent and compliance with the statutory provisions.
Headnote:(A) Hindu Adoptions and Maintenance Act, 1956 - Sections 9, 11, and 15 - Custody dispute over a minor child involving adoptive and biological parents - The court found the lack of conclusive evidence regarding the actual 'giving and taking' ceremony required for valid adoption, resulting in the dismissal of the adoption petition. The biological parents contested the validity of the adoption deed executed without a formal ceremony and the court ruled that the adoption deed's lack of registration does not invalidate the adoption but the requirement for consent by both parents must be satisfied, highlighting the need for an evidentiary hearing. (Paras 26, 28, 32, and 41)
Findings of Court:
The court quashed the orders related to the adoption petition and miscellaneous application, but noted the issue of adoption remains to be litigated in a substantive suit. The child is to stay with the adoptive parents until resolution of this suit. (Paras 41a, 41d)
Issues: The court addressed whether the biological parents' consent was necessary and whether the adoption was valid considering the ceremonial requirements of adoption under Hindu law.
Ratio Decidendi: Adoption requires both a legal deed and the ceremonial transfer (giving and taking) of the child, which was disputed in this case. The trial court's earlier decision was deemed insufficient due to lack of proper inquiry into the adoption's validity.
Result: The petition is partly allowed; earlier orders quashed; custody to remain with adoptive parents pending further adjudication.
| Table of Content |
|---|
| 1. adoption process and parties involved. (Para 2 , 3 , 4 , 5) |
| 2. contesting claims of parental authority. (Para 6 , 7 , 8) |
| 3. judicial decisions and child custody order. (Para 9 , 10) |
| 4. arguments on the validity of the adoption deed. (Para 12 , 14 , 15 , 16) |
| 5. legal provisions governing adoption validity. (Para 13 , 17 , 22 , 23 , 29) |
| 6. court’s procedural analysis and decisions. (Para 26 , 28 , 35 , 36 , 38) |
| 7. final judgment and directives issued. (Para 41) |
Judgment :
1. Rule. Rule made returnable forthwith with the consent of parties and taken up for final disposal.
2. This is one of the unfortunate cases at the centre of which is a minor child aged 2 years. The petitioners are the adoptive parents and the respondents are the biological parents. The adoptive parents claim that the biological parents have given the child in adoption and have executed deed of adoption dated 16th July 2021, which is disputed by the biological parents. The minor child is with the adoptive parents from the time he was two days old.
3. An Adoption Petition No.189 of 2021 was preferred on 18th September 2021, which came to be rejected vide order dated 16th March, 2022. The review preferred against the order of dismissal came to be rejected vide order dated 8th March, 2023. Vide order dated 8th March, 2023 passed in Miscellaneous Application No.137 of 2023 filed in Adoption Petition No.189 of 2021, the City Civil Court, Greater Mumbai directed the custody of minor child to be handed over to the biological parents. In the present petition, the dismissal of adoption petition, the dismissal of review petition and the order passed in miscellaneous application directing the handing over of custody of minor child has been assailed.
FACTS:
4. The facts of the case discernible from the material produced on record are as under:
. On 16th July 2021, a document styled as “Deed of Adoption” came to be executed on a stamp paper of rupees one hundred, which was notarised. The deed bears the signatures of adoptive parents as well as the biological parents and as also the photographs of both sets of parents. There are no witnesses to the said deed. The recitals in the document read thus :
“1. Both the parties are agreed that since this deed of adoption the above said Child New Born Boy Baby will be known as New Born Boy Baby in the concerned record of the above Child in his future record and henceforth the Child will be known as New Born Boy Baby.
2. Both the parties declare that the second party will be Adoptive Father and all the rights of the child in respect of both the parties and inheritance in respect of personal and real estate of the second party.
3. The First party has no objection if the Adoptive Father will change the name of the said Child by way of Government Gazette as per Law and Procedure.
4. Biological parents undertake to be present before the Court for further decree, shall not evade the proceedings.
5. Biological parents shall not try to maintain contact or file any complaint before police.
6. The First party has maintained the Chile having responsibility of natural mother and liability of father and the Child requires the natural love and affection of father and the second party desirous to provide such and affection to the Child above mentioned.
7. All the parties declare that the Second parties desire to provide love and affection to the Child and he shall perform all the legal liabilities of father respectively for the purpose of education maintenance and better future of the Child and the Child shall be maintained as his own Child and in the properties of the Second parties the Child shall be entitle to get his lawful rights a per the Provisions of Law of Succession Act or any other Act, being enforce.
8. Both the parties declare that Second Party has adopted the above said Child with their free consent and desire without any force, collusion, connivance and pressure of whatsoever in nature from any one and his consent is free and valid in
