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2023 Supreme(Online)(Bom) 2101
HIGH COURT OF BOMBAY
Sharmila U. Deshmukh, J
Jeetendra Gorakhnath Singh, Neetu Ojha Singh – Appellant
Versus
Yash Suresh Malani, Tanya Yash Malani – Respondent
CIVIL APPELLATE JURISDICTION Writ Petition No. 6461 of 2023
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
An adoption under Hindu law requires both biological parents' consent and the physical act of giving and taking the child, which is essential for validity, and unregistered adoption deeds are not sufficient.
Headnote:(A) Hindu Adoptions and Maintenance Act, 1956 - Section 9, Section 11, and Section 15 - Validity of adoption - Dispute over adoption of a minor child between biological and adoptive parents - Dismissal of adoption petition due to lack of consent and unregistered deed - The court emphasized that both natural parents must consent to the adoption and that the physical act of giving and taking the child is necessary for a valid adoption. The adoption was deemed incomplete as no ceremony of give and take was performed. (Paras 17-40)
(B) Legal representation in adoption matters - Valid adoption requires compliance with legal provisions ensuring free consent from all parties, and the actual delivery of the child between the biological and adoptive parents is essential for valid adoption. (Paras 22-26)
Facts of the case:
The adoptive parents contend that biological parents executed a deed of adoption for their minor child, disputed by the biological parents who claim the document was signed under duress and without understanding its implications. The City Civil Court earlier dismissed the adoption petition and ruled that custody should revert to the biological parents.
Findings of Court:
Adoption petition dismissed primarily due to lack of evidence for valid adoption procedures. The court directed the biological parents to be given custody.
Issues: Whether adoption was valid under HAMA requirements and the implications of unregistered adoption deeds.
Ratio Decidendi: The court ruled that mere consent is insufficient; the deed must be supported by a physical act of giving and taking for the adoption to be valid, and that the legal provisions regarding adoption must be strictly followed.
Result: Orders quashed; issue of adoption subject to further detailed adjudication. The child to remain with adoptive parents until final judgment.
| Table of Content |
|---|
| 1. adoption legality and custody dispute. (Para 2 , 3 , 4 , 5 , 6 , 10) |
| 2. arguments regarding adoption consent and validity. (Para 12 , 13 , 14 , 15 , 16) |
| 3. legal provisions regarding adoption. (Para 17 , 18 , 19 , 22 , 23) |
| 4. judicial analysis of adoption process. (Para 26 , 27 , 29 , 30 , 31) |
| 5. court's final orders regarding the adoption case. (Para 34 , 35 , 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 all respect.”
5. On 18th September, 2021, the adoptive parents filed Adoption Petition bearing
