Richa Gupta v. Union of India, 2020 PLRonline 5007

punjab and haryana HIGH COURT

Before : Justice Amol Rattan Singh.

Richa Gupta v. Union of India and others

CRWP No.820 of 2020

12.10.2020

(i) Habeas Corpus – For custody of minor child  – Petition is maintainable- maintainability of a petition under Article 226 of the Constitution, seeking  issuance of a writ in the nature of habeas corpus to restore the custody of a child  to its natural mother, in the circumstances enunciated  – Even though the battle for custody of the child in the present case is not between the natural mother and father of the child but between the natural mother and the lady who on the basis of an adoption deed (contended  by her to be a valid one), states that she is the adoptive mother – Nonetheless, the tussle is one for custody of the child and hence I would see no reason to hold that a writ petition seeking such custody is not maintainable – Despite proceedings in a petition seeking issuance  of a writ in the nature of habeas corpus being summary in nature, the High Court can still embark upon a detailed enquiry for the welfare of the minor in question and can invoke its extraordinary jurisdiction to determine the validity of the detention and to even direct repatriation of a minor child to the country from where he or she may have been removed by a parent or some other person, therefore I see no ground to hold that the present petition is not maintainable, even though the enquiry in the present case involves the validity of the adoption. [Para 68 to 71]

(ii) Adoption deed – Not valid  – That the adoption does not seem to be valid (as regards (b) below, and in any case not valid as per (a) and (c) below), even under the provisions of the Act of 1956, in view of the fact that:-

(a) the giving of the child by the petitioner to respondent no.9, though is backed by her affidavit dated 05.09.2019, that affidavit being only an authority to respondent no.9 to further hand over the child to respondent no.7, such document of authority is required to be compulsorily registered in terms of sub section (3) of Section 17 of the Registration Act, 1908 (as discussed in paragraphs 80, the last part of para 83, and para  85);

(b) the adoption deed dated 03.12.2019, would not seem to be a valid document as it purports to show that the petitioner signed it on that date in the presence of respondent no.7 and her husband, whereas even as per respondents no. 5 and 6 that document was signed by the petitioner on 05.09.2019 (and not 03.12.2019) and therefore, the presence of the petitioner on 03.12.2019 in Patiala as the document purports to show, is highly doubtful thereby making it a very questionable deed (as discussed in paragraphs 86 to 90 supra);

(c) that even otherwise the adoption deed cannot be said to be valid in view of the fact that the petitioner was not in a fully stable mental condition and was under mental stress of having lost her husband only 1½ months earlier, and with her holding a 3 month old baby and further, she therefore having changed her mind as regards the adoption subsequently and not having come to Patiala, to sign the document on 03.12.2019 (as discussed in paragraphs 91 and 92);

(iii) Adoption – Inter-country adoption  – It would be the  JJ Act of 2015, as would apply for an inter-country adoption, the adoptive mother and her husband admittedly being Indian citizens residing abroad for more than one year; and consequently  a certificate from CARA would be essential to validate any such adoption [ Para 94 and 96 to 111].

Since the conclusion arrived at by this bench, on the application of the Act of 2015, is contrary to what has been held by a co-ordinate bench in Jasmine Kaurs' case (supra), the matter needs to be referred to a larger bench on the following question formulated by this court:-

“As to whether in terms of sub sections (6), (34), (37) and (38) of Section 2, read with what is contained in Sections 60 and 68 and other provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, as also the Adoption Regulations framed under the provisions of Sections 68 (c) and 2 (3) of that Act, would respondent no.7 require a certificate from the authority constituted under Section 68 of the Act, before adopting a child from India, with respondent no.7 being a non-resident Indian as defined in Section 2(38) of the said Act?”

 Since a Division Bench is already seized of the issue in LPA No. 517 of 2020, this matter, as regards that question, be placed before their Lordships of the Division Bench, after obtaining necessary orders from Hon'ble the Chief  Justice.

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In view of the fact that the judgment is a slightly long one and one question that arises herein has been referred to a larger Bench, ‘different parts of the judgment' are being referred to in the index below, for convenience.

Present: Mr. S.P.S.Mann and Mr. Vikas Lochab, Advocates, for the petitioner.

Mr. Arvind Seth, Advocate, for respondent no. 1 (UOI).

None for respondents no. 1, 2 and 4.

Dr. Sukant Gupta, Addl. PP, UT, Chandigarh, for respondent no.3.

Mr. Sunil Garg, Advocate, for respondents no.5 and 6.

Mr .Kanwaljit Singh, Sr. Advocate, with Mr. C. M. Munjal, Advocate,

for respondents no.7 to 10.

Mr. Anil Malhotra, Amicus Curiae.

*****

AMOL RATTAN SINGH, J.

All cases listed today have been taken up for hearing by way of video conferencing because of the situation existing due to the COVID-19 pandemic.

1. By this petition, the petitioner seeks the issuance of a writ in the nature of habeas corpus to secure the release of her son, Advait Gupta, who is allegedly in the illegal custody of respondents no.5 to 9, specifically respondent no. 7, Minakshi Gupta, who claims to have legally adopted the child, with the consent of her husband, Sai Kiran (who is not a respondent in the petition).

It is pertinent to mention here that the petitioner unfortunately having been widowed in July 2019, respondents no.5 and 6 are her father-in-law and mother-in-law, respectively.

However, the actual grievance of the petitioner as regards the custody of her son, is with respondents no.7 to 9, with the custody of the minor child, who is stated to have been born on 31.05.2019, being with respondent no.7, i.e. Minakshi Gupta.

2. It being a case of the custody of a small child, it is appropriate to notice here itself the proceedings before this court, before arguments were actually addressed by all learned counsel, as also to notice the residential status of respondent no. 7 and her husband.

Notice of motion having been issued, the respondents all appeared on January 31, 2020, with the matter adjourned for hearing to 12.02.2020, to enable the respondents to file a reply.

(All dates of hearing are also being referred to, in view of the fact that the case has taken about 8 months for a decision, it initially having gone before different benches and not one bench).

It is also to be noticed that on January 31, 2020, one Inspector Haroon Ahmad of Police Station, Shalimar Bagh, New Delhi, appeared before this court, though at the time that notice of motion was issued, there was no such direction issued; but seemingly it was through him that the notice issued was effected upon respondents no.8 to 10, who are shown to be residents of Shalimar Bagh, New Delhi.

On that date too, all learned counsel in the petition made a request for   an adjournment, with the matter therefore having been adjourned to March 03, 2020, on which date an issue seems to have been raised on whether or not jurisdiction under Article 226 (seeking a writ in the nature of habeas corpus), can be invoked, seeking custody of a minor child.

Eventually however, after the COVID-19 pandemic set in, the matter was taken up for hearing on June 05, 2020, for effective hearing.

3. In fact on that date, all learned counsel for the parties had stated that if the parties were directed to attempt mediation, the matter may actually be settled between them.

Consequently, the parties appeared before the learned Mediator in the Mediation and Conciliation Centre of this court on 15.06.2020 but no settlement having been reached, it was ordered to be put up for final consideration (vide an order dated 08.07.2020), on August 07, 2020; but even on that date, the turn of the matter having come up late, counsel for respondents no.5 and 6 had sought an adjournment.

4. On 14.08.2020, Mr. Munjal, learned counsel for respondents no.7 to 10, had brought to the notice of this court documents annexed with the written statement of the said respondents, including what was stated to be an adoption  deed (dated 03.12.2019), to submit that the petitioner having willingly given the child in adoption to respondent no.5 and her husband, Saikiran (he not being a respondent in the petition), she could not repudiate that adoption even in terms of Sections 12 and 15 of the Hindu Adoption and maintenance Act, 1956 (hereinafter referred to as the Act of 1956 or as HAMA).

5. Countering that contention, learned counsel for the petitioner, on that date itself, had stated that the “adoption deeds” (including an affidavit dated 05.09.2019-Annexure R-7/3 with the reply of respondents no.7 to 10), having been signed by the petitioner under pressure, and she having approached the police immediately thereafter, the said deeds could not be said to be legal and valid.

6. That in fact, is the essence of the entire controversy, i.e. as to whether the said documents and giving of the child to respondent no. 9 (sister of respondent no.7), would constitute a valid adoption or not and whether, in the light of those documents, the petitioner is entitled or not to get the custody of her natural born son, back from respondent no.7.

However, the facts are differently depicted by both sides and therefore the contentions raised with regard thereto, would obviously need to be referred to in detail; but before that, the issue of the residential status of respondent no.7 and her husband needs to be seen.

7. At that stage, Mr. Munjal, learned counsel appearing for respondents no.7 to 10, had stated (on query by the court), that the adoptive parents are U.S. citizens, after which another query had been put to him, as to whether the procedure for ‘an international adoption' had been followed or not. He had then sought time to take instructions and to cite the law on that issue.

In view of the aforesaid statement of Mr. Munjal, it had been considered necessary by this court to request Mr. Anil Malhotra, Advocate, who has more than fair knowledge on the issue of international adoption, to assist this court as amicus curiae.

8. On the next date of hearing, i.e. 25.08.2020, Mr. Anil Malhotra had submitted his report to this court, with Mr. Kanwaljit Singh, learned senior counsel having put in appearance for respondents no.7 to 10.

He had, in fact brought to the notice of this court that it was inadvertently stated by Mr. Munjal (learned counsel appearing for the said respondents on the previous dates), that respondent no.7 and her husband were US citizens, whereas actually they are Indian citizens residing in the US, whose passports would be produced in court on the next date of hearing.

An affidavit to that effect was also filed by respondent no.7 (dated 20.08.2020), in which it is stated that her husband works with M/s Accenture Services Pvt. Ltd. (which is described in the affidavit to be a multi-national company though otherwise is shown to be a Private Limited Company). He is stated to be working as a Senior Manager in the said company, with he and respondent no.7 both residing in Los Angeles, California.

They are stated to have been issued an H-1 B and an H-IV visa respectively by the US authorities, with the former visa stated to have been issued to the husband of respondent no.7 to October 2014 and with both presently renewed till March 04, 2021.

Thus, respondent no. 7 Minakshi Gupta and her husband, Sai Kiran, are both Indian citizens living in the US on visas presently valid till March 2021.

9. Before referring to the pleadings of the parties, it is also appropriate to briefly notice that there was a change of counsel for the petitioner, thrice, uptil 07.08.2020. Mr. Dilpreet Singh Gandhi, Advocate, (with him having filed the petition alongwith S/Shri Vaibhav Mittal and Arvin Sekhon, Advocates), appeared till 07.08.2020. However, on 14.08.2020 Mr. Vikas Lochab, Advocate, appeared for the petitioner with Mr. Gandhi having at that stage appeared and submitted that he had no objection to Mr. Lochab appearing (though that had not been  recorded in the said order).

Thereafter, with Mr Lochab having appeared in all hearings uptil 09.09.2020, Mr. S.P.S. Mann, Advocate, appeared for the petitioner, submitting  that in fact the petitioner had obtained “a no objection” from Mr. Lochab. The latter had stated that he had no objection to Mr. Mann appearing.

However, since at that stage only arguments in rebuttal were to be addressed on behalf of the petitioner, Mr. Malhotra, learned Amicus Curiae, had been requested to assist the court also on the issue of change of counsel at such a belated stage (with neither Mr. Gandhi nor Mr. Lochab being designated senior counsel); after which Mr. Malhotra had referred to Section 49(1)(c) of the Advocates Act, 1961, as also to Rule 39 of Chapter II, contained in part VI of the Bar Council of India Rules, 1975, (framed under the provisions of Section 49), to submit that there would be no specific bar on any change of counsel at any stage. Learned amicus curiae also referred to Rule 2 contained in Part B of Chapter VI of the High Court Rules and Orders, Volume V (of this court), to submit essentially  to the same effect.

Those provisions having been referred to, all learned counsel for the respondents had submitted that they had no objection to Mr. Mann appearing for the petitioner even at the stage of rebuttal, with a specific query in that regard having been put to them by this court.

However, since Mr. Mann would not have known the exact arguments addressed by Mr. Lochab and counsel for the respondents uptil that stage, Mr. Lochab had been asked by this court to continue to assist in the matter alongwith Mr. Mann, so that there was no confusion of any kind, to which request he very fairly and readily agreed.

It is also necessary to notice that Mr. Mann had informed this court that he had uploaded a power of attorney executed by the petitioner in his favour, by way of a communication to the Reader of this court and that he would also file it in the Registry.

10. In that background, before going on to the arguments raised on both sides, as also by the learned Amicus Curiae, the pleadings of the parties naturally need to be referred to.

11. Coming to the petition, as per the petitioner, she was married to the late Adesh Gupta on 27.05.2017 and after his unfortunate death on July 22, 2019, allegedly, respondents no.5 and 6, i.e. the petitioners' ‘in-laws', started harassing her, asking her to leave the house. Eventually she is stated to have left the house, leaving behind her son; but by then (as per the petition) she had been introduced to respondents no.8 and 9, i.e. Ashwani Jain and Manisha Gupta respectively, (the sister and brother of respondent no.7, Minakshi Gupta), as also to respondent no.10, i.e. Jenender Gupta, who as per learned counsel for the parties, is a common friend/relative of respondent no.7 and the petitioners' in-laws, i.e. respondents no.5 and 6.

As per the writ petition, she had been assured that her son would be legally adopted and that she would be called to meet the adoptive parents and only upon her being satisfied, would the adoption take place.

12. The petition thereafter ‘jumps on' (in paragraph 5 thereof) to say that a few days prior to the filing of the petition, the petitioner came to know that an illegal adoption was being executed and in fact she was never called for the same, with her therefore not knowing the whereabouts of her son. As per her contention, when she rung up her in-laws they refused to tell her the whereabouts of her son, other than the fact that they had already given him in adoption to respondent no.7, who would be taking the child out of India by the last week of January 2020.

Respondents no. 5 & 6 (her in laws) are stated to be residing  at Patiala, whereas the petitioner, after leaving her matrimonial home, is stated to be residing with her parents at Chandigarh.

13. The petitioner thereafter made a representation/complaint to the Department of Social Welfare, Child & Womens' Development, Union Territory Chandigarh, as also to the Senior Superintendent of Police, Chandigarh, with copies of those representations having been annexed as Annexure P-2 collectively, dated 18.12.2019 (as regards the complaint to the police).

The police is eventually stated to have acted on 08.01.2020, by summoning respondents no.5 and 6 (who live in Patiala) to the Police Station, Sector-34, Chandigarh, where the petitioner was also called and where the said respondents are said to have made a statement that the child would be handed over to the petitioner on January 13, 2020.

However, that not having been done, the petition came to be filed on 23.01.2020.

14. As regards the respondents, no replies having been filed on behalf of respondents no.1, 2 and 4, i.e. the Union of India, the Director General of Police, Punjab, and the Commissioner of Police, Delhi respectively, with a ‘short reply' filed on behalf of the SSP, Chandigarh, i.e. respondent no.3, by Inspector Baldev Kumar, Station House Officer, Police Station Sector-34, Chandigarh, essentially stating therein that as per the complaint of the petitioner dated 18.12.2019 (Annexure P-2 with the petition), she was forced to sign adoption papers on 05.09.2019, with her contention being that as the adoptive couple itself was not present, the child was handed over to the siblings of respondent no.7, i.e. to respondents no.8 and 9, Ashwani Gupta and Manisha Gupta.

The reply of the Station House Officer further states that, “prima facie the Chandigarh Police did not have jurisdiction to look into the matter”, with the alleged adoption papers also executed in Patiala, but “as per practice” the parties and the complainant were called to the police station to record their statements and to ‘apprise them' on the lack of jurisdiction.

 The SHO further states that in the interest of the minor child, the parties were spoken to, with a joint undertaking having been given by the  petitioner and her in-laws, i.e. respondents no.5 and 6, as also her father and two other persons, stating therein that respondents no.5 and 6 would hand over the minor child to the petitioner on 13.01.2020, at the police station itself.

However, despite that joint statement having been signed on 08.01.2020 (Annexure R-3/2 with that affidavit), thereafter on 11.01.2020 a letter was received from respondent no.5, seeking extension of time to restore the custody of the child to the petitioner by 20.01.2020, after which “a detailed written statement” dated 13/16.01.2020 was received by the SHO from respondent no.5, stating therein that the decision to give the minor child in adoption was a voluntary one by the petitioner and that respondents no.5 and 6 (the in-laws of the petitioner) would have no objection to either the custody of the child being given back to the petitioner or with it remaining with respondent no.7 and her husband.

The child was thereafter never handed over to the petitioner and upon the SHO having obtained legal opinion, he was informed that in fact the petitioner should be asked to approach the District Police, Patiala, as the Chandigarh Police would have no jurisdiction to deal with the matter.

15. It is to be specifically noticed here that the reply of the SHO does not state that respondents no.7 to 10 were also present at the time that the aforesaid statement was signed, and in fact the statement itself is not seen to be signed by  any of them.

Eventually it is stated that the Chandigarh Police would abide by whatever directions are given by this court.

16. In the reply filed by respondents no.5 and 6, i.e. the petitioners' father-in-law and mother-in-law respectively, preliminary objections have first been  taken that a petition filed under the provisions of Article 226, seeking the issuance of a writ in the nature of habeas corpus, is not maintainable as it is not “a legal remedy to challenge an adoption or adoption deed”, with the appropriate forum for proving/disproving any such deed being the civil court.

It has further been stated that the petitioner herself gave her son in adoption without any coercion and pressure and that in fact the entire story given  in the petition is only an attempt to extort money from the respondents, whereas everything had been settled between the families on 05.09.2019, with the  petitioner having in fact executed an affidavit on that date and also having  executed a deed of adoption in the presence of witnesses including her father.

The reply on merits is also essentially to the same effect, with the factum of the parties being called to the police station also admitted.

Importantly, alongwith the reply of respondents no.5 and 6, is  annexed an application addressed (via e-mail) to the SSP, Chandigarh (“hand- dated” 16.01.2020) and a statement dated 13.01.2020 of respondent no.5, sent via e-mail to the (SHO) Police Station Sector-34, Chandigarh (both collectively annexed as Annexure R-5/2 with the reply of respondents no.5 and 6)

However, as regards the custody of the child not being handed over, it is stated in the reply that such custody not being with respondents no.5 and 6, they obviously could not hand over the child to the petitioner.

17. Coming then to the reply filed on behalf of respondents no.7 to 10, with the affidavit in fact being that of respondent no.7, Minakshi Gupta.

Again the same preliminary objection on maintainability of the  present petition has been raised, with it further stated that the adoption ceremonies were held in the presence of at least 20 relatives on both sides and therefore, once  it is established that the petitioner herself handed over custody to respondent no.7, of her free will and consent, the petition is also not maintainable.

18. In the reply of the said respondents, on the merits of the petition, it is stated that respondent no.10 (Jenender Gupta) is the “maternal brother-in-law” of Minakshi Gupta and is a common relative even to the petitioner because Jenender Guptas' sisters' husband is the brother of the petitioners' mother-in-law.

The details of other relatives and witnesses as are stated to have been present, are also given in paragraph 1 of the reply on merits.

It is further stated therein that both, the petitioner as also her parents, had stated at that time that the petitioner wished to leave the house of her in-laws  at Patiala and wished to come back Chandigarh, where she would be re-married and that the minor child would not be taken by her as it would hinder the prospects of such re-marriage.

19. It has further been stated that in fact initially it was respondent no.10 who was being persuaded to take the child in adoption as he had no son (though he had a daughter), but with the said respondent being reluctant “at that time”, it then came to his mind that his relatives were searching to take a child in adoption for respondent no.7 who was in the US for the past 6 to 7 years, with that suggestion eventually having been accepted by the petitioner, her parents as also her parents- in-law.

Therefore, on 05.09.2019 about 20 people gathered (at the house of respondents no.5 and 6 as stated in court by learned counsel for the respondents), but with respondent no.7 and her husband unable to come in India on that date due to a visa issue (as contended).

Therefore, the child was given by the petitioner to respondent no.9 in the presence of the petitioners' parents as also her brother, who is a signatory to the  affidavit dated 05.09.2019. A photograph of the child being handed over to respondent no. 9 was also taken (Copy Annexure R-7/1 with the said reply).

[A photograph showing the petitioner, her father and respondent no.9 (as commonly stated by all learned counsel), is also annexed as Annexure R-7/2 with the petition, with the same photograph also affixed on the deed of adoption dated 03.12.2019 (Annexure R-7/4).

The said deed also carries individual photographs of two other persons, stated to be respondent no.7 and her husband, Saikiran.]

20. Thus, as per respondents no.7 to 10, the child was willingly handed over by the petitioner to the sister of respondent no. 7 on 05.09.2019, with an affidavit also executed by her on that date, clearly stating that she intended to re- marry after the death of her husband and therefore was giving her son without any “hitch or pressure to Ms. Minakshi Gupta wife of Mr. Saikiran Gupta of Delhi, as also they have shown their willingness and consent to adopt the child”. (Reference paragraph 4 of the said affidavit, Annexure R-7/3 with the written statement of respondents no.7 to 10).

Further, the affidavit states that as per the mutual understanding and settlement amongst the family, the petitioner would be going to her parental home at Chandigarh without any pressure and therefore she or her son would have no right in her husbands' and her in-laws' moveable or immovable properties.

Paragraph 7 of the affidavit also states that she would not “claim or file any suit against my in-laws with regard to any things”.

21. The reply of respondents no.7 to 10 further goes on to state that the child thereafter remained with respondent n.9, Manisha, who looked after him on behalf  of  respondent  no.7  and  ultimately,  when  respondent  no.7  came  back to India  on  22.11.2019,  she   took   the   child   into   her  custody  after   which  she (respondent no.7) approached the petitioner and her parents, as also respondent no.10, to complete the “formality of the adoption”.

Hence, it is further stated that accordingly, on 03.12.2019, all again gathered at the house of Ms. Rajni Gupta sister of respondent no.10 at Patiala, where respondent no. 9, Minakshi Gupta, and her husband M. Sai Kiran, were also present. Thereafter, a deed of adoption was reduced into writing on stamp paper worth Rs.1000/-, which was purchased on 05.09.2019 when the affidavit Annexure R-7/3 was executed.

The reply goes on to state that in the said adoption deed, alongwith  the petitioner, her father was a witness, as was respondent no.10, with the deed duly notarised at Patiala.

The petitioner is also stated to have handed over her Aadhar card and the birth certificate of the minor child to respondent no.7, with all terms and conditions of the adoption reduced to writing, after which again the custody of the child is with respondent no.7.

22. The reply on behalf of respondents no.7 to 10 thereafter\ goes on to state that therefore, in the aforesaid circumstances, the adoption is completely legal, with the petitioner in fact having signed the adoption deed herself alongwith her father, which she had concealed from this court (in the writ petition), she also having concealed the factum of the affidavit executed and the photographs  taken of the gathering on 05.09.2019.

23. Thereafter, the petitioner being harassed by her in-laws is denied by respondents no.7 to 10 in paragraph 4 of the reply (though obviously the ‘in-laws' are respondents no.5 and 6 and not amongst respondents no.7 to 10).

Finally, it has been stated in the reply that the welfare of the child  would be of paramount consideration for this court or “the Guardian Court”.

 In that context, it is stated that the child would be brought up “in a very decent manner” in the USA, whereas on the re-marriage of the petitioner, ‘the future of the child will be dark' and that in any case the parents of the petitioner were very reluctant to get the child right from the beginning.

Hence, it is contended that for the betterment and the welfare of the child, his custody should remain with respondent no.7.

24. Thereafter, on a query having been made by this court as regards the capacity of respondent no.7 and her husand to look after the child, especially with respondent no.7 stated to be 52 year old, an additional affidavit of the said respondent, dated 20.08.2020, was also filed [as has also been referred to in paragraph 8 (supra)]. Copies of the bank statements of the husband of respondent no.7 were also subsequently presented in court (by way of ‘Whatsapp' communication to the Reader of this court), as regards the bank balance of the said respondents' husband which will be referred to further in this judgment.

25. Coming then to the arguments actually addressed by parties. Arguments were raised by learned counsel for the petitioner to the effect that the adoption was not valid because it was done under pressure,  inasmuch as the affidavit dated 05.02.2019 as also the adoption deed dated 03.12.2019, were both signed under pressure by the petitioner and further, there was no handing over ceremony of the child to the adoptive mother and in any case the natural guardian of a child under five years of age is his natural mother.

Thus, the following arguments had been recorded in the order dated 19.08.2020, addressed by Mr. Lochab:-

(i) That the adoption is not valid because the petitioner was under pressure, with the affidavit dated 5.9.2019, as also the adoption deed dated 3.12.2019 (notarised), both signed under pressure by her;

(ii) That there was no ‘handing over' ceremony of the child from the natural mother to the adoptive mother, i.e. to respondent no.7, Minakshi Gupta, with even the photographs annexed with the reply filed by respondents no.7 to 10 showing the child being handed over by the natural mother only to the sister of the adoptive mother (and not to the adoptive mother) and consequently, again for that reason, it was not a valid adoption; and

(iii) That the natural mother is the natural guardian of a child less than 5 years of age and consequently, with her having gone to the police within 15 days  of the (alleged) adoption deed having been signed and having stated that she had signed it under pressure, the custody of the child deserved to be handed back to  her, with the ‘so called adoption' to be declared to be illegal and not binding.

Thereafter, both he and Mr. Mann (subsequently appearing for the petitioner), had pointed to the photographs (Annexures R7/1 and 7/2), to submit that the petitioner obviously had a tearful face while handing over the child and therefore she cannot be said to have done so of her own free will.

26. In reply to the aforesaid contentions, Mr. Munjal (who had earlier been appearing ‘independently' for respondents no. 7 to 10), had referred to the affidavit dated 05.09.2019 (Annexure R-7/3 with the reply of respondents no. 7 to 10) and had specifically pointed to paragraphs 4 and 5 thereof, to submit that the petitioner had very willingly agreed to give the child in adoption, with the said affidavit having been witnessed by her brother, Karan Aggarwal, and therefore to say that it was signed under pressure was a wholly misconceived and false contention.

As already noticed in paragraph 4 hereinabove, he had earlier brought to the notice of this court the deed dated 03.12.2019, with him submitting that the said deed and the affidavit dated 05.09.2019 both showed that the child had been willingly given in adoption by the petitioner to respondent no.7 and therefore the adoption was irreversable.

He had further submitted that as regards handing over the child at that time, it was handed over to the sister of the adoptive mother because the adoptive parents were in the U.S., who came to India only for the adoption and when the deed dated 3.12.2019 was signed, the child was handed over to them as is admitted in the last three lines of the adoption deed and consequently, simply because there are no photographs of the child being handed over to the adoptive mother, that  does not make the adoption invalid. He further pointed to the fact that the said adoption deed has been signed not just by the petitioner but also witnessed by her own father, Shri Babu Ram, as also by one more witness.

27. The aforesaid arguments having been addressed by Mr. Munjal, thereafter from 19.08.2020, Mr. Kanwaljit Singh, Senior Advocate had addressed arguments, appearing for respondents n.7 to 10.

However, prior to hearing learned senior counsel appearing for respondents no. 7 to 10 addressing arguments, it was considered appropriate to  hear Mr. Anil Malhotra, learned Amicus Curiae, because his report (as he had submitted by then), was essentially to the effect that the adoption was not valid and therefore his contentions were essentially in favour of the petitioner (though obviously from a wholly objective stand point as amicus).

28. Mr. Malhotra first referred to paragraph 2 of the reply of respondents no. 5 and 6 (the parents-in-law of the petitioner), to submit that the only date mentioned as regards the alleged adoption, was 05.09.2019 and not 03.12.2019, which is the date shown to be stamped (with a rubber stamp), on the adoption deed annexed as Annexure R-7/4 with the reply of respondents no. 7 to 10 and therefore it seemed to be pretty obvious that though the petitioner gave away her child to respondent no. 9 (the sister of the adoptive mother) on 05.09.2019, as would also seem to be obvious from the photograph annexed with the same reply, yet she (the petitioner) does not seem to have been actually present on 03.12.2019, which would also seem to be so from the statement made by the petitioners' father-in-law (respondent no. 5) via email to the SHO, Police Station Sector 34, Chandigarh, the said statement having been annexed with the reply of respondents no. 5 and 6 themselves, and therefore obviously admitted.

From that long statement, he pointed specifically to the fact that it is stated therein that a deed of adoption was got prepared on 05.09.2019, after it was finalized at Patiala in the presence of a large number of people (including respondents no. 5, 8, 9 and 10) and it was decided, that since respondent no. 7 and her husband were in the US at that time, the child would be handed over to respondent no.  9,   and that  “          the  said  adoption  deed  was  signed by Richa Gupta and  Babu  Ram in  presence of all  the persons and  said  minor child Advait was handed over by Richa Gupta to Manish Gupta on 05.09.2019. However, since Richa Gupta was going back to her parents' house at Chandigarh forever thus all the matter with regard to her marital rights were also settled ”

In the same statement, respondent no. 5 has also stated that “       then  Sai Kiran and his wife namely Minakshi Gupta came to India from USA and made a call to me that they are coming to Patiala on 03.12.2019 for execution of Adoption deed and Richa Gupta be also called for this purpose, on which my wife Sunita Gupta made a telephonic call to Richa Gupta to come to Patiala as Sai Kiran and Minakshi Gupta are coming to Patiala to execute the Adoption deed, but  Richa   Gupta refused to come to Patiala and then my wife Sunita Gupta made call to   cousin brother of Richa Gupta namely Dharampal also who also shirked to get  into   the matter, and then the entire things were communicated to Neelam Gupta  wife of   Jenender Gupta, but still Sai Kiran and his wife namely Minakshi Gupta along  with   Janender   Gupta   and   Ashwani   Gupta   came   from  Delhi   to   Patiala on   03.12.2019 and it was told to them to talk to Richa Gupta directly but they said we  will see matter on our own level and after some time they left our place”.  (All emphasis applied in terms of the stress laid by learned amicus curiae).

 29. Hence, the contention of learned amicus was that the adoption deed relied upon by respondents no.7 to 10, dated 03.12.2019, was obviously not signed by the petitioner (Richa Gupta) on 03.12.2019 but on 05.09.2019 itself,  after which she had in fact refused to sign any papers, though she obviously signed the affidavit dated 05.09.2019, agreeing to give the child away at the first instance to the sister of the adoptive mother, i.e. to respondent no. 9.

However, Mr. Malhotra further submitted that, firstly, the adoption deed never actually having been signed in the presence of both parties together, very obviously the petitioner had changed her mind by the  time that respondent  no. 7 and husband came from the US; and she had decided not to give the child in adoption and consequently, with there being no actual giving and taking of the child by the natural mother to the adoptive mother or her husband, there is no valid adoption and therefore, the custody of the child would need to be restored to the natural mother, i.e. the petitioner.

30. Mr. Malhotra next referred to the photograph on the adoption deed, showing the petitioners' father (stated to be Babu Lal by the petitioners' counsel), respondent no. 10 Janender Gupta, and the petitioner (all standing together), to submit that admittedly the said photograph was taken in Patiala on 05.09.2019 and therefore, again obviously, that photograph was used even on 03.12.2019 on the adoption deed shown to be executed on that date, because the petitioner obviously refused to come to Patiala after 05.09.2019, which is why a rubber stamp has been   fixed on the adoption deed, showing the date ‘03.12.2019'; and that is also the reason why the adoption deed has not been registered, for which there would otherwise be no reason, especially to authenticate the adoption, though of course registration of an adoption deed is not compulsory even under the provisions of the Registration Act, 1908.

In that context Mr. Malhotra further submitted that since presumption is in favour  of a registered adoption, any educated person would normally resort  to that process after an adoption deed has been signed, especially if the child is to be taken abroad, and simply because the adoption deed is shown to be notarized, it would not actually prove the presence of the petitioner at Patiala on 03.12.2019, even as per the statement of respondent no. 5 in his email to the SHO of the police station.

31. Mr. Malhotra therefore submitted that very obviously the petitioner had actually signed even the adoption deed actually on 05.09.2019 itself with it later shown to have been executed on 03.12.2019, and that she had handed over  the child not to the adoptive mother but to her sister, i.e. respondent no.9, Manisha Gupta, with respondent no.7 and her husband admittedly not being present in India on 05.09.2019.

He further submitted that thereafter the petitioner having changed her mind to actually give the child in adoption to a middle aged/elderly couple living  in the USA, she had therefore refused to actually come to Patiala to hand over the child to respondent no.7, or to get the adoption deed registered, which earlier had been decided to be registered upon the arrival of respondent no.7 and her husband from the USA.

He next submitted  that  that was probably the reason that  respondents  no. 5 and 6 agreed that the custody of the child would be handed over back to the  petitioner on 13.01.2020, as is also stated in the reply of the SHO (annexing therewith the joint statement signed by respondents no. 5 and 6 and the petitioner).

32. Next, Mr. Malhotra submitted that the giving of the child to the sister of the adoptive mother, with the child remaining with the sister and not with the adoptive mother from 05.09.2019 till at least the time that respondent no. 7 arrived from the USA, would also therefore not make it a valid adoption; because if the adoption deed dated 03.12.2019 is not found to be actually genuine by this court, then the simple giving of the child to a person other than the adoptive mother, would not comply with the provisions of Section 11 (vi) of the Act of 1956.

Thus the contention of learned Amicus Curiae is that only on 05.09.2019 perhaps, willingness was shown at that stage by the  petitioner, but there actually being no giving of the child to the adoptive mother, consequently,  the legal necessity as stipulated in clause (vi) of Section 11 is not fulfilled.

He also drew attention to the fact that even in the written statement of respondents no. 5 and 6, and respondents no.7 to 10, it is not stated anywhere that Richa Gupta actually came to Patiala on 03.12.2019 to sign the document, with a very evasive reply given by respondents no.7 to 10 that “Accordingly on 03.12.2019 all again gathered at the house of Ms. Rajni Gupta, sister of respondent no. 10 at Patiala, where the answering respondent Minakshi Gupta and her  husband M. Sai Kiran were also present.” (reference a part of paragraph 1 of the reply on merits of respondents no. 7 to 10).

33. He then submitted that even in the affidavit dated 05.09.2019, the petitioner simply stated that she was “willing to give my son without any hitch or pressure to Mrs. Minakshi Gupta, wife of Sai Kiran Gupta of Delhi, as also they have their willingly and consent to adopt the child,” with there being no actual giving of the child to Minakshi Gupta or her husband.

 Mr. Malhotra also submitted that simply because the last three lines of the adoption deed state that ……….“have signed on the adoption deed and hand  over the child baby son to the adopter in the presence of witnesses….”, that does not mean that the said handing over actually took place, with the petitioner not present in Patiala on that date, as per the petitioner herself as also per her in-laws, i.e. respondents no. 5 and 6, who otherwise have stated throughout in their written statement that she had willingly given the child to respondent no. 9 on 05.09.2019.

34. Mr. Malhotra next submitted that even as per the provisions of the  Juvenile Justice (Care and Protection of Children) Act, 2015, (hereinafter referred to as the ‘JJ Act' or the Act of 2015), an inter-country adoption has to be as per the provisions of the said Act, though of course sub-section (3) of Section 56 of that Act provides that nothing in the said Act would apply to the adoption of children made under the provisions of the Act of 1956.

He submitted that, however, the adoption cannot be held to be valid in circumstances where the petitioner was very obviously under pressure to sign the affidavit dated 05.09.2019, at a time when her husband had just passed away less than one and half months earlier (on July 22, 2019), and with her in any case denying having come to Patiala at all on 03.12.2019, and with that also being the stand of her in-laws, i.e. respondents no.5 and 6, though they otherwise stated that she gave the child willingly.

Consequently, he submitted that the adoption cannot be held to be valid even in terms of Act of 1956, firstly because there was no actual giving and taking of the child by the natural mother to the adoptive mother/father and further, because the deed showed a wrong date of its signing by both parties, when it is very highly doubtful and in fact almost proved that the petitioner did not sign it on 03.12.2019 (though she may possibly have signed it in the absence of respondent  no.7 and her husband on 05.09.2019), and with her definitely having changed her mind to give the child in adoption before 03.12.2019.

35. Mr. Malhotra also referred to Section 5 (2) of the Act of 1956 to submit that an adoption that is void would not create any rights in the adoptive family in favour of any person, if such person could not acquire such rights except by reason of the adoption.

He also referred to sub-section (1) of Section 5 to submit that no adoption could be made after 1956 by a Hindu, except in accordance with the provisions contained in Chapter II of the said Act, and that any adoption made in contravention of the provisions thereof would be void.

36. Thus, the contention of learned Amicus Curiae is that the adoption deed dated 03.12.2019 is not a valid adoption deed, it not having been actually signed by the petitioner on 03.12.2019, though it may have been signed by her earlier on 05.09.2019 at the time that she executed the affidavit; but nonetheless, she thereafter having actually changed her mind and never having come to Patiala to give the child to the adoptive mother on the date that the adoption deed is shown to be executed (03.12.2019).

 37. The next contention of learned amicus curiae was that to safeguard a child who would be going outside the jurisdiction of India, the procedure to be adopted for international adoption must be resorted to, without which the adoption cannot be held to be valid.

He referred to Section 61 of the Act of 2015, wherein the procedure to be adopted by a court in issuing an adoption order, is postulated.

He also referred to sub-sections (6) and (7) of Section 2 of the said Act, wherein the term “Authority” is defined to state that it means the ‘Central Adoption Resource Authority' (CARA), constituted under Section 68 of the said Act [(sub-section 7)].

Sub-section (6) defines an “authorised foreign adoption agency” to mean a Foreign Social or Child Welfare Agency authorised by CARA on the recommendation of the Central Authority or Government of such foreign country, to sponsor the application of non-resident Indians/Overseas Citizens of India/Persons of Indian Origin/foreign prospective adoptive parents, for adoption of a child from India.

38. Mr. Malhotra submitted that in fact it would be CARA that would determine whether the provisions of the Act of 2015 or the Act of 1956 have been complied with as regards the adoption being a valid adoption, with him further submitting that in any case no country would grant a visa to a child for entering that country without clearance from CARA, in view of the fact that India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), with our country having ratified that convention/treaty on December 11, 1992, and in fact with the Juvenile Justice (Care and Protection of Children) Act, 2000, having been enacted pursuant to that ratification, with the said Act of 2000 now replaced with the Act of 2015.

39. He then referred to Regulation 2(14) of the Adoption Regulations framed under the provisions of clause (c) of Section 68 read with sub-section (3)  of Section 2 of the Act of 2015, to submit that a ‘no objection certificate' needs to be issued by the Authority (CARA), permitting the child to be placed in adoption with a foreign citizen or an overseas citizen of India, or Non-Resident Indians, which would be a provision applicable in the present case, in view of what is contained in sub-section (4) of Section 56 of the Act of 2015.

40. As regards maintainability of a writ petition seeking issuance of a writ in the nature of habeas corpus, Mr. Malhotra relied upon various judgments, with him specifically pointing to paragraph 36 of the judgment in Ruchi Majoo v. Sanjeev Majoo AIR 2011 SC 1952, wherein their Lordships, after discussing the law on the subject, held that such a writ petition was in fact, maintainable.

Learned Amicus had thus submitted that with the writ petition itself being maintainable qua custody of the child, in terms of the ratio of the aforesaid judgment, which is also in the context of the custody of a child (though between two natural parents), there would be no need to resort to the remedy of a petition either under the provisions of the Guardians and Wards Act, 1890, or by way of any other civil proceedings.

41. Mr. Malhotra also referred to provisions of the Hindu Minority and Guardianship Act, 1956, to submit that the natural guardian of the minor child, in the aforesaid circumstances in any case, would be the natural mother.

He also cited various judgments on the issue of guardianship of a  child being with his/her natural mother.

[Those however are not considered necessary to be really gone into in this case because if the adoption deed is not found to be legally valid by this court, or at least for the purpose of return of custody of the child to the natural mother it  is not found to be valid, then naturally, the custody would be with the natural mother. If, on the other hand, the adoption is found to be valid, then (equally naturally) the right of custody would be with the adoptive mother.]

42. Last, Mr. Malhotra submitted that it would also not be in the interest of the child at all to be adopted by a 52 year old mother and a 43 year old father because  obviously bringing  up  an  infant  and  a  child  takes  lot  of  energy, with respondent no.7 obviously not gaining energies as she goes older, like any other  person.

 Hence, he submitted that in view of all the above, the custody of the child needs to be given back to the petitioner, i.e. the natural mother.

43. After learned Amicus Curiae had addressed arguments, Mr. Kanwaljit Singh, learned senior counsel appearing for respondents no.7 to 10, first reiterated what Mr. Munjal had submitted, to the effect that with the petitioner having been unfortunately widowed, she was desirous of re-marrying as even stated by respondents no.5 and 6 in their statement before the police (admitted by them in their written statement), and therefore she agreed to give her son in adoption and consequently, willingly handed over the child on 05.09.2019 to the sister of respondent no.7, i.e. to respondent no.9, and also executed an affidavit to that effect, further stating therein that she was willing to give her child to respondent no.7, Minakshi Gupta, and her husband Saikiran Gupta of Delhi, and that she was doing so without any pressure.

Hence, learned senior counsel submitted that the intention to give her child in adoption was very clear right since 05.09.2019 and with the handing over taking place to the sister of the adoptive mother, there was no violation of clause

(vi) of Section 11 of the Act.

 He therefore submitted that with the child having been actually  handed over on September 05, 2019 and the adoption deed also thereafter having been signed on December 03, 2019, simply because the petitioner thereafter decided to withdraw from her consent, by going to the police and to the Social Welfare Department on December 18, 2019, the adoption could not be reversed even in terms of Section 15 of the Act.

In that context Mr. Kanwaljit Singh next stressed on the fact that as    per Section 11 of the Act, it is the intent of the natural parents/guardian to give the  child away which is to be considered and consequently, the intent of the petitioner by admittedly giving the child away on 05.09.2019, with her also executing an affidavit on that date, was very clear, especially as even the adoption deed has  been thereafter executed on 03.12.2019.

44. Learned senior counsel next referred to the written statement of respondents no.5 and 6, i.e. the ‘in-laws' of the petitioner, to submit that even they specifically stated that the petitioner had told them that she wished to give the  child in adoption so that her chances of re-marriage would be better.

He further submitted that the child remained with respondent no.9 from 05.09.2019 to 22.11.2019, after which, upon the arrival of respondent no.7 from the USA, the child was handed over to her by respondent no.7, after which  the adoption deed dated 03.12.2019 was executed at Patiala.

45. He next submitted that registration of an adoption deed not being compulsory either under the Act of 1956 or under the Registration Act, 1908, the adoption deed dated 03.12.2019, read with the affidavit dated 05.09.2019, would make the adoption completely legal and valid, with therefore the petitioner having no right to get the custody of the child back.

Learned senior counsel also reiterated that in such circumstances, the writ petition seeking custody of a child, in the face of a valid adoption deed, was not maintainable.

46. As regards the contention of learned counsel for the petitioner as also learned Amicus Curiae, to the effect that the petitioner was not in fact present at Patiala on 03.12.2019 when the adoption deed is shown to have been executed, learned senior counsel submitted that admittedly it is stated in paragraph 1 of the reply (on merits) of respondents no.7 to 10, that “all again gathered” at Patiala, which  meant that the petitioner as also her family were present alongwith other  witnesses at the time that the adoption deed was executed on December 03, 2019.

 Mr. Singh further reiterated that with there being no replication to the written statement and respondents no.7 to 10 having specifically stated therein that “all again gathered” at Patiala on 03.12.2019, showed that the petitioner was also present there on that date.

47. Further, as regards Mr. Malhotras' contention that the adoption deed dated 03.12.2019 was actually signed by the petitioner at Patiala on 05.09.2019  and thereafter was simply got notarised by respondent no.7 on 03.12.2019 after her arrival from USA; and her having signed it without the presence of the petitioner  at Patiala on that day, Mr. Kanwaljit Singh pointed to the fact that the font on the affidavit dated 05.09.2019 is different from the font on the deed dated 03.12.2019 and therefore they could not have been typed at the same time, i.e. on 05.09.2019.

He again reiterated that the affidavit dated 05.09.2019 is also witnessed by the petitioners' brother, with the deed dated 03.12.2019 having been witnessed by her father as one of the witnesses.

He next submitted in that context that even the copy of the Aadhar card of the petitioner was duly notarised on 03.12.2019.

48. Mr. Kanwaljit Singh next referred to the order recorded by this court (this very Bench) on August 14, 2020, wherein it is stated as follows:-

“Learned counsel for the petitioner on the other hand counters that the said adoption deeds having been signed by the petitioner under pressure and she having approached the police immediately thereafter, would show that she actually signed under pressure and therefore they cannot be said to be valid adoption deeds, and  she being the natural mother of the child, deserves that the child be returned to her.”

He also pointed to the order dated 19.08.2020, to submit that the said  order also did not say that the petitioner was not present on 03.12.2019, but only stated that she had signed the adoption deed under pressure, which was otherwise duly notarised.

Learned senior counsel next referred to the fact that even in the complaints dated 18.12.2019, made by the petitioner to the police and the Social Welfare Department, she did not say that a fraud had been committed upon her, (though of course she had stated that she was forced to sign the adoption papers, with the adoptive couple not present and the child handed over to the siblings of respondent no.7).

49. As regards the contention of learned Amicus Curiae that even respondents no.5 and 6 (the petitioners' in laws) have admitted in their reply that she was not fully reconciled to giving her child after 05.09.2019 and therefore she did not come to Patiala thereafter, learned senior counsel submitted that actually she was not cooperating with her in-laws but had directly come to a relatives'  house on 03.12.2019, in Patiala, and hence that statement made by respondents no.5 and 6 has no meaning (who otherwise admit that she willingly gave her child on 05.09.2019).

50. Mr. Singh next submitted that the petitioner admittedly never made any complaint or representation for a period almost 3 and half months, between 05.09.2019 to 18.12.2019, which shows that the subsequent withdrawal from the adoption is only an after-thought, with a valid adoption therefore not being reversible.

51. Next, learned senior counsel submitted that in view of the aforesaid written documents dated 05.09.2019 and 03.12.2019, oral arguments/statements in the pleadings, to the contrary, would not be sustainable even in terms of Sections 91 and 92 of the Indian Evidence Act, 1872.

52. As regards the contention of learned counsel for the petitioner and learned Amicus Curiae that it is not in the interest of the child to be adopted by a lady who is 52 years of age and her husband who is 43 years of age, Mr. Kanwaljit Singh submitted that the husband of respondent no.7, i.e. the adoptive father, has an excellent job in the US, drawing about $13000 per month and that he has a  fairly good bank balance also, in support of which a bank statement has been sent by way of ‘Whatsapp communication' (court being held by video conferencing), to the Reader of this court, with a print out thereof having been sent to me, showing that Saikiran Madhavan has a net standing balance of $8111.61 cents in the Accenture LLP (Bank) in San Antonio, Texas as on 21.07.2020, as also a balance of $50647.67 cents in the American Express National Bank in the town of Sandy, Utah.

He thus submitted that in fact, on the other hand, the petitioner not having any steady income at all and being dependent on her father and brother, at least presently, she would not be able to provide as good a future to the child.

He next submitted in the context of the age of the adoptive parents, that even as per the complaint made to the Social Welfare Department (Annexure P-2 with the writ petition), it is obvious that the petitioner knew that she was  giving her child actually to a 50 year old couple who was living abroad, with her affidavit dated 05.09.2019 giving their names as Sai Kiran and Minakshi Gupta, though therein she stated that they were residents of Delhi.

Mr. Singh submitted that that was for the reason that the adoptive mother is actually a permanent resident of Delhi, presently staying in the USA.

53. Learned senior counsel next submitted that in fact the petitioner having concealed even the factum of having signed the affidavit dated 05.09.2019 and  there  being  no  replication  filed  to  the  written  statement  of  any  of  the respondents, therefore the contents of the written statements would have to be taken to be admitted even in terms of Rules 2 & 3 of Order 8 of the Code of Civil Procedure, 1908, other than the fact that non-disclosure of the affidavit executed  by her and her signing the adoption deed, being a concealment of facts, the writ petition deserves to be dismissed on that ground alone.

54. He next argument was that even as per Article 57 of the Schedule to the limitation act, 1963, any suit seeking a declaration that an adoption is invalid or never took place, can be filed within 3 years of the time from which the alleged adoption became known to the petitioner.

The contention therefore is that this court would not, in a petition seeking issuance of a writ in the nature habeas corpus, declare the adoption deed to be invalid, without any evidence led in that regard.

Hence, he further submitted that if it is not declared to be illegal or invalid, the question of restitution of the child to the natural mother does not arise.

55. To conclude on his aforerecorded arguments, Mr. Kanwaljit Singh, learned senior counsel appearing for respondents no.7 to 10, submitted that thus, with the adoption deed having been very much signed by the petitioner and  because she admittedly handed over the custody of the child to respondent no.9 for passing that custody on to respondent no.7, i.e. the adoptive mother, the adoption has to be held to be valid and therefore the natural custody of the child would be with the adoptive mother and not the natural mother and consequently the writ petition deserves to be dismissed.

56. As regards Mr. Malhotras' contention that the adoption would actually be governed by the provisions of the JJ Act, Mr. Singh submitted that with the adoptive  parents  being  Indian  citizens  who  are  simply  in  the  USA  on  a  visa presently valid till March 2021, it would not be an “international adoption”, and  consequently the provisions of the Juvenile Justice Act, 2015 would also not be applicable mandatorily, requiring permission of the Central Adoption Resource Authority (CARA); and therefore the contention of learned Amicus Curiae to that effect is misconceived, because even if the US embassy would require a certificate from CARA before granting a visa to the child to go to the US, CARA would not refuse such a certificate once a valid adoption deed under the provisions of the Act has been enacted.

He submitted that hence, even as per Section 56 (3) of the JJ Act, it would only be the Act of 1956 (HAMA) that would be applicable.

In this context, Mr. Singh relied very heavily upon a judgment of a co- ordinate Bench of this court in Jasmine Kaur v. Union of India (CWP no.10555 of 2019, decided  on July 28, 2020),  wherein it  was held  that  once there is a valid   adoption under the Act of 1956, it is then not mandatory to invoke the provisions  of the JJ Act, 2015.

Thus, he submitted that with the JJ Act not being applicable at all and the adoption deed being valid under the provisions of the Act of 1956, no prior permission of CARA is required.

57. Last, Mr. Kanwaljit Singh submitted that in fact at this stage the adoptive mother, i.e. respondent no.7, has even offered to transfer her entire monetary savings of Rs.50,00,000/- in the name of the child till he attains majority and further, she has also offered that the petitioner can visit her in the USA for one month every year to meet the child, if of course, the petitioner gets a visa for that purpose.

Alternatively, if she is not granted a visa, then respondent no.7 has also offered to bring the child for one month to India every year and to allow the petitioner to meet him/even let the child stay with her, during that period of one  month.

 58. To support his arguments as recorded hereinabove, Mr. Kanwaljit Singh relied upon a large number of judgments (some of which learned Amicus Curiae has also relied upon), which are cited hereinunder:-

1) Mausami Moltra Ganguli v. Jayant Ganguli 2008(4) RCR (Civil) 551:

2) Nil Ratan Kundu & Anr. v. Abhijit Kundu 2008(3)RCR (Civil) 936;

3) Vijay Bhushan Arora v. Dipak Arora & Ors. 2016(6) AD (Delhi 56;

4) M/s Brightstar Telecommunications India Ltd. and others v. M/s Iworld Digital Solutions Private Ltd. and others 2019 (173) DRJ 191;

5) Ajay Kumar v. Rishalo Devi 2019(1) RCR (Civil) 148;

6) Mst. Param Pal Singh through Father v. M/s National Insurance Co. and another 2013(2) (Recent Apex Judgments (R.A.J.) 440;

7) Shabnam Hashmi v. Union of India and others 2014(1) RCR (Civil) 1052;

8) Jeshy C.O. and others v. Union of India Rep. by the Secretary, Ministry of Law and Justice, Cabinet Secretariat, Raisina Hill, New Delhi-110 001 and others 2019 (1) KLT 57;

9) Sivarama K., Aged 39 years S/o Venkattaramana Bhat, Residing At Hari Nilaya Bhat Compound, Kumbla, Koyipady Village, Kasaragod District and others v. State of Kerala, Represented by its Secretary to Government, Home Department, Government Secretariat, thiruvananthapuram -695001, and others 2020 (1) KLT 294;

10) Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others 2019 (7) SCC 42; and

11) Yashita Sahu v. State of Rajasthan & Ors. 2020 AIR (SC) 577.

Out of the judgments that have been cited in the written arguments submitted by his instructing counsel, (with the title of most of the judgments actually not given, only their citations having been given), two judgments were not actually found by this court on any software or website and consequently are not being referred to, their citations (as given in the written arguments) being 2016(6) AD 56 and 2016(6) RAJ 20.

59. After Mr. Kanwaljit Singh had addressed arguments, Dr. Sukant Gupta, learned Addl. P.P., U.T., appeared for respondent no.3, i.e. the SSP, Chandigarh, and first pointed to paragraph 3 of the affidavit dated 05.09.2019, to submit that nowhere in that document, or in the adoption deed dated 03.12.2019, is any address of respondents no.7 and 8, in the USA, given; and in fact paragraph no.4 of the affidavit states that they are “of Delhi”, with him further pointing out that it was very obvious that the petitioner had also never met them as per the said affidavit.

He otherwise submitted that, naturally the said respondent has nothing to say in the matter as regards the adoption, except to the extent of the statements made by the parties before the police as detailed in the reply of the SHO, Police Station Sector-34, Chandigarh.

Dr. Gupta also referred to a judgment of a Full Bench of the Madras High Court in P. Sivasuryanarayana Chetti v. P. Audinarayana Chetti and another AIR 1937 Madras 110.

 60. Mr. Sunil Garg, Advocate, who appears for respondents no.5 and 6, i.e. the father-in-law and mother-in-law of the petitioner, submitted that though as per the said respondents the adoption took place with the natural mother giving the child willingly on 05.09.2019 at that stage, however, respondents no.5 and 6 have nothing to say in the matter, as to whether the child should continue to be with  respondents no.7 and 8, or with the petitioner, i.e. the natural mother, with the prime consideration being the welfare of the child, who is their grandson.

He next pointed to the complaint made by the petitioner to the Department of Social Welfare of Child & Womens' Development, U.T., Chandigarh (copy Annexure P-2), to submit that though therein she has stated that she was forced to sign adoption papers on 05.09.2019, that is not so and that though the adoptive couple was not present, she had however handed over her son to the siblings “of said couple” willingly, i.e. to Ashwani Gupta and Manisha Gupta (respondents no.8 and 9 herein).

60-A It may be noticed here that though counsel for the Union of India (respondent no. 1) came present on a few occasions, no arguments at all were addressed by him, with no reply having been filed by the said respondent.

61. In rebuttal to the arguments raised, Mr. S.P.S. Mann, Advocate, appeared for the petitioner (alongwith Mr. Vikas Lochab, Advocate, who had appeared through out the time that effective arguments were addressed, as already noticed towards the beginning of this judgment).

Mr. Mann drew specific attention to the following part of paragraph 4 of the reply on merits contained in the written statement of respondents no.7 to  10:-

“It is pertinent to mention here that after execution of the adoption deed the petitioner as well as her parents assured the answering respondent that the said adoption deed will be registered in order to make more authentic and legal within a few days as it will take some time for the petitioner to reconcile.”(Emphasis added in this judgment only in terms of the argument of learned counsel).

  62. He submitted that therefore it is very obvious that though the  petitioner undoubtedly had handed over her child to respondent no.7 on 05.09.2019, however, as has been already stated by her in the writ petition itself, it was due to pressure from her in-laws, i.e. respondents no.5 and 6; and obviously because she was in a confused state of mind so soon after the death of her husband on July 22, 2019, within about two years of her marriage, and with a child just 3 months old with her.

As such, she actually was not fully reconciled to the idea of giving away the child in adoption, though she did give him to respondent no.9 in that confused stage of mind, though not to the adoptive mother.

Hence, he submitted that such giving of the child, not to respondent no.7 at that stage but to her sister, i.e. respondent no.9, without an adoption deed actually signed on that day, would not make it a valid adoption, especially as her uncertainty of mind in tragic circumstances, is very obvious even from the aforereproduced stand taken by respondents no.7 to 10 in their reply, which is signed by respondent no.7 herself, i.e. by Minakshi Gupta.

He further submitted (as already argued by learned amicus curiae), that from the aforesaid stand, it is equally obvious that the intention was that once the adoption deed was signed, it would be registered, which would be also natural and prudent for any educated person to do, especially if they wanted to take the child abroad, especially when they were adopting a child at a late age when respondent no.7 is already 52 years old.

63. Thus, as per learned counsel, the very fact that the deed dated 03.12.2019 was not registered, though it was intended to be (as per what is quoted hereinabove from the reply of respondents no. 7 to 10), shows that the petitioner was not present on 03.12.2019, which would be equally obvious from the fact that even  respondents  no.  5  and  6  have  stated  that  she  never came  to Patiala after 05.09.2019 and that even the adoption deed (as also an affidavit) were signed on 05.09.2009 itself.

He submitted that therefore, the petitioner thereafter having made up her mind not to give the child in adoption, especially when she fully understood  the implications of giving the child to an elderly couple who were living abroad, the adoption cannot be held to be valid even if it is to be presumed that the petitioner signed the adoption deed dated 03.12.2019 on 05.09.2019, with it also admitted even in the same reply of respondents no. 7 to 10, (paragraph 1 at internal page 7 thereof), that the stamp paper for the adoption deed, worth Rs.1000/-, was purchased on 05.09.2019 itself.

64. Hence, he concluded that in the aforesaid circumstances, the custody of the child deserves to be returned to the petitioner, i.e. the natural mother.

65. Having considered the arguments raised on both sides as also by learned Amicus Curiae, first of all it needs to be again noticed by this court that a large number of the judgments cited by Mr. Kanwaljit Singh, learned senior counsel for the respondents as also by learned Amicus Curiae, are on the issue of guardianship of a child, i.e. with whom such guardianship would lie in terms of the provisions of the Hindu Minority and Guardianship Act, 1956, or the Guardian and Wards Act, 1890.

However, as  already said, those  judgments  are  not  being  referred to in detail  in view  of the  fact  that  if   this   court   holds   that on the basis of  the affidavit dated 05.09.2019 and deed dated 03.12.2019 alone, coupled with the fact that the petitioner actually handed  over  her  child  to  respondent  no.9,  i.e. the sister of respondent no.7, on 05.09.2019, a valid adoption has taken place, then very obviously the natural guardian of the child would be the adoptive mother and adoptive father; whereas if it is held herein that the said documents and the giving of the child to respondent no.9 do not constitute a valid adoption for any reason, or that a doubt is cast on the complete intention of giving the child in adoption, then, equally obviously, the custody and guardianship of the child would rest with the natural mother, i.e. the petitioner.

Hence, the dispute with regard to the custody of the child in this petition seeking issuance of a writ in the nature of habeas corpus, being one between the adoptive mother one side (as she is contended to be by respondents no.7 to 10), and the natural mother, there would not be much point in going into as to whose custody the child should be in, almost all the judgments cited being those where the custody battle of the child was between the natural mother and father.

66. All arguments having been noticed as above, in the light of the pleadings and the arguments addressed, what first needs to be crystalised are the essential questions to be determined in this petition; which are:-

i) The maintainability of a petition under Article 226 of the Constitution, seeking a writ in the nature of habeas corpus, to restore the custody of a child to its natural mother, in the face of what is contended (by respondents no.7 to 10), to be a valid adoption deed;

ii) Whether the adoption of the child, i.e. the boy Advait, can be accepted to be valid, for the purpose of granting his custody to the petitioner, either under the provisions of HAMA or the JJ Act?;

iii) Whether it would be actually HAMA 1956 or the JJ Act 2015 that would apply to such adoption, with the adoptive parents, admittedly, presently being residents of the USA for more than one year and therefore they not being resident Indians, though they are Indian citizens?

67. Before going on to considering those questions, the issue raised by  Mr. Kanwaljit Singh on the effect of non-filing of a replication to the written statement, needs to be dealt with.

According to the learned Senior Counsel, with no replication having been filed by the petitioner to the written statements filed by respondents no.5 and 6 and respondents no.7 to 10 respectively, the contents of the said written statements are deemed to have been admitted by her and consequently, no argument refuting the contents thereof can be accepted, in terms of Order 8 Rules 3, 4 and 5 of the CPC.

However, that is an argument which is to be rejected as per law settled on the issue, with only one judgment of the Supreme Court needed to be referred  to in that context, i.e. K. Laxmanan v. Thekkayil Padmini and others (2009) 1 SCC 354, wherein their Lordships, after considering the issue, held that the word “Pleadings” is defined under the provisions of Rule 1 or Order 6 of the CPC,  which consists of a plaint and a written statement; and therefore a plaintiff can file a replication in respect of any plea raised in the written statement, and if allowed  by the court do so, such replication would become a part of the pleadings but “Mere non-filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement”. (Reference paragraph 29 of that judgment, SCC Edition).

In fact, even Order 8 of the said Code (as has been referred to by Mr. Singh), only deals with the written statement, set off and counter claim to be filed in a suit, with no reference to a replication. Prior to that, Order 7 refers to a plaint, again with no reference to a replication.

Learned Senior Counsel specifically referred to Rules 2, 3 and 4 of the Order 8, to submit that facts must be specifically pleaded or denied and that an evasive denial would not be a sufficient denial.

However, these provisions obviously pertain only to a written statement and not to a replication and consequently, specifically read with the judgment of the Supreme Court in Laxmanan, the said provisions cannot be held applicable to a replication, as Order 8 itself applies only to a written statement in reply to a plaint/petition.

Hence, in view of the above, simply because the petitioner in the present case did not file a replication to any of the written statements filed by the respondents in this case, that would not mean that she accepted the pleadings in those written statements, or that she has no right to argue against the contents thereof.

68. Coming then to the first question framed hereinabove, i.e. the maintainability of a petition under Article 226 of the Constitution, seeking  issuance of a writ in the nature of habeas corpus to restore the custody of a child  to its natural mother, in the aforesaid circumstances.

On that question, as already noticed in paragraph 40 hereinabove, Mr. Malhotra had relied upon a judgment of the Supreme Court in Ruchi Majoo v. Sanjeev Majoo AIR 2011 SC 1952, from which he specifically pointed to paragraphs 3, 4, 14, 36 and 37.

Essentially, what is eventually held in paragraph 37, is with regard to the first question out of the three framed in paragraph 4 by the Supreme Court; that question being:-

“i) Whether the High Court was justified in dismissing the petition for custody of the minor on the ground that  the court had no jurisdiction to entertain the same;”

69. That was a case where a tussle for custody of the child was between the natural mother and father, with the father being a resident of the USA and the mother having come to India with the child, the child otherwise being an American citizen by birth, who at the relevant time was aged about 11 years.

 In fact, the father in that case had approached a court in the USA, alleging that the child had been abducted by the mother, and eventually even a red corner notice was issued (at the instance of the American court), with the mother, however, having taken shelter of the order passed on April 04, 2019 by the Additional District Judge, Delhi, under the provisions of the Guardians and Wards Act, by which interim custody of the child was given to her.

Aggrieved of that order, the father approached the Delhi High Court by filing a petition under the provisions of Article 226 of the Constitution, with  that petition having been allowed, thereby setting aside the order of the learned Additional District Judge and holding that the court at Delhi had no jurisdiction to entertain the petition filed by the mother because the minor was not actually ordinarily residing at Delhi and that all issues relating to the custody of the child needed to be agitated before a competent court in America, not only because that court had already passed an order in favour of the father, but also because the parents as well as the minor were actually American citizens.

The Delhi High Court had also based its decision on the principle of comity of courts.

70. In that background, after discussing the entire case law on the issue, including  the  earlier  judgments  of  the  Supreme  Court  in   Shilpa  Aggarwal v. Aviral Mittal and another  (2010) 1 SCC 591, Smt. Surinder Kaur Sandhu v. Harbax  Singh  Sandhu  and  another  (1984)  3  SCC  698  and  Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another (1987) 1 SCC 42, it was held by their Lordships as follows:-

“……Proceedings in the nature of Habeas Corpus are summary in nature, where the legality of the detention of the alleged detenue is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody. The Court may also  direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran's & Shilpa Agarwal's cases (supra) or refuse to do so as was the position in Sarita Sharma's case (supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found  that the alleged detenue is within its territorial jurisdiction.”

71. Consequently, in the opinion of this court, with it having been held as above, the law enunciated in Ruchi Majoos' case (supra), would be wholly applicable to the present case, even though the battle for custody of the child in the present case is not between the natural mother and father of the child but between the natural mother and the lady who on the basis of an adoption deed (contended  by her to be a valid one), states that she is the adoptive mother.

Nonetheless, the tussle is one for custody of the child and hence I would see no reason to hold that a writ petition seeking such custody is not maintainable.

In fact, that is what has also been held by a Division Bench of this court in Manohar Lal & another v. State of Punjab & others (LPA no.476 of 2020, decided on 05.08.2020), though of course it was held therein that where there are competing claims between parties who purport to have an authority to retain/claim custody of a child, that may require evidence to be led and a “full  scale inquiry.”

Yet, obviously the judgment in Ruchi Majoos' case was not brought to the notice of their Lordships of the Division Bench and consequently, once it has been held in Ruchi Majoo that despite proceedings in a petition seeking issuance  of a writ in the nature of habeas corpus being summary in nature, the High Court can still embark upon a detailed enquiry for the welfare of the minor in question and can invoke its extraordinary jurisdiction to determine the validity of the detention and to even direct repatriation of a minor child to the country from where he or she may have been removed by a parent or some other person, therefore I see no ground to hold that the present petition is not maintainable, even though the enquiry in the present case involves the validity of the adoption.

72. Having held so, then comes the all important question of whether or not the petition deserves to succeed, or must be dismissed on the merits of it.

In the opinion of this court, in terms of the provisions of both, the Act of 1956 as also the Act of 2015, the custody of the child needs to be returned to its natural mother, for the reasons as are enumerated hereinafter:

73. Looking therefore at the second question framed in paragraph 66 hereinabove, as to whether the adoption in question can be considered to be valid (for the purpose of granting custody of the child), either under the provisions of  the Act of 1956, or of the Act of 2015.

First, the relevant provisions of the Act of 1956 would need to be looked at in detail, the first of those being that in terms of Section 2 thereof, the Act   is   applicable   to   any  Hindu   by  religion   (as   defined   in   the   Act), and

consequently  would  apply,  on  that  criterion,  to  both,  the  petitioner  as  also respondent no.7 and her husband.

74. Sections 4, 5 and 6 of the Act of 1956 need to be seen in detail, which read as follows:-

“4. Overriding effect of Act– Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

5. Adoptions to be regulated by this Chapter– (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.

6. Requisites of a valid adoption– No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.”

Since respondent no.7 is a lady who sought to take the child in adoption, Section 8 of the said Act is also essential to be seen and is reproduced as follows:-

“8. Capacity of a female Hindu to take in adoption– Any female Hindu-

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.”

It is necessary to mention here that Section 7 of the Act of 1956 refers to the capacity of a male Hindu to take a child in adoption, which provision is essentially to the same effect (conversely), as Section 8.

Section 9 (1) stipulates that no person other than the father, mother or guardian of a child would have the capacity to give him/her in adoption, though both would have an equal right to do so, but only with the consent of the other, unless one of them has renounced the word or has ceased to be a Hindu or is of unsound mind [reference sub-sections (1) and (2) and the proviso thereto].

Sub-sections (4) and (5) would have no application in the present  case.

 What may be necessary to refer to however, is the first explanation to Section 9, which states that the term ‘father' and ‘mother' do not include an ‘adopted father and an ‘adopted mother', meaning thereby obviously that a child once adopted cannot be given in adoption again.

Section 10 of the Act of 1956 stipulates that a Hindu who has not already been adopted and is not married (subject to custom or usage) and has not completed the age of 15 years (again subject to custom or usage), may be adopted.

75. Section 11 stipulates the other conditions for a valid adoption and therefore is very significant, with it being reproduced hereinbelow:-

“11. Other conditions for a valid adoption– In every adoption, the following conditions must be complied with:

(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

  (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

(v) the same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.

Provided that the performance of datta homan, shall not be essential to the validity of an adoption.”

76. The relevant part of Section 12, as applicable to the present case,  states that a child once adopted, shall be deemed to be the child of the adoptive mother or father for all purposes, with effect from the date of the adoption and that from such date, the child would be deemed to have severed all ties with the family of his birth.

Sections 14 and 15 of the HAMA read as follows:-

 “14. Determination of adoptive mother in certain cases– (1) Where a Hindu who has a wife living adopts a child she shall be deemed to be the adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be stepmothers.

(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the stepmother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the stepfather of the adopted child.

15. Valid adoption not to be cancelled– No adoption which had been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.”

Section 16 postulates to the following effect:-

“16. Presumption as to registered documents relating to adoption- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”

77. The last relevant provision of the Act of 1956 is Section 17, which is being noticed in view of the fact that it is averred in paragraph 4 of the preliminary objections raised in the reply of respondents no.5 and 6 (i.e. the in-laws of the petitioner), that she herself had given the child in adoption without any pressure or coercion, and that the whole story given in the petition is only an afterthought to extort money from the respondents, with everything having been settled between the families on 05.09.2019, and with the petitioners' own affidavit also executed  on that date.

It is to be again noticed that the said argument, though contained in  the said reply, was never raised during arguments by any counsel for the respondents and in fact, even in the reply filed by respondents no.7, i.e. the mother who is claiming a valid adoption, no such allegation has been made, the allegation (contained in paragraph 4 in the reply on merits by respondents no.7 to 10), being that the petitioner has now made up a concocted story, with an intention to back out from her affidavit and the adoption deed.

 Hence, in the opinion of this court, actually Section 17 would not be applicable at all to the present case but since that allegation has been made by respondents no.5 and 6 in their reply, though not by respondent no.7, the said provision is also being reproduced below:-

“17. Prohibition of certain payments–

(1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by this section.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both. (3) No prosecution under this section shall be instituted without the previous sanction of the State Government or an officer authorized by the State Government in this behalf.”

78. In the light of the aforesaid provisions, first of course it is to be observed that there is no legal bar under the Act of 1956, on either the petitioner giving her son in adoption, nor is there any prohibiting respondent no.7 and her husband to take the child in adoption, even though respondent no.7 is 52 year old.

Though learned Amicus Curiae had argued that the age of the said respondent and her husband would be an issue in terms of the JJ Act of 2015 and the rules framed therein, however as regards the Act of 1956, there is no bar on them adopting the child, [the bar regarding age only being the one contained in clauses (iii) & (iv) of Section 11, stipulating that for adoption of a child of the opposite sex, there must be a minimum age gap of 21 years between the child and such adoptive parent].

79. That having been said, Sections 6 and 11 of the Act of 1956 now need to be looked at carefully, as to whether the conditions of a valid adoption would seem to be fulfilled even for the purpose of determining whether the custody of the child should be returned to the petitioner, i.e. his natural mother, or not.

 Having already noticed that as regards the capacity of giving and taking the child is concerned, the petitioner and respondent no.7 (and her  husband), are not found to be barred, as obviously clauses (i) (ii) and (iii) of Section 6 (as reproduced herein above in paragraph 74), are not seen to be  violated.

As regards clause (iv) of Section 6, stipulating that an adoption must be made in compliance also with the other conditions mentioned in Chapter 2 of  the said Act, the said Chapter is one that encompasses Sections 5 to 17 (both inclusive).

80. First of all it needs to be observed here that registration of an  adoption, or more correctly, registration of a deed of adoption, is not found to be compulsory in terms of Section 16 of the Act of 1956 (reproduced herein above).

However, sub-section (3) of Section 17 of the Registration Act, 1908, reads as follows:-

“17. Documents of which registration is compulsory.—

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.”

The question therefore is whether sub-section (3) would read to mean that adoption of son, or any deed of adoption of a son, executed after January 1, 1872, is compulsorily registerable?

Though at first blush that may appear to be so, however, what the said provision stipulates is that an authority executed to adopt a son after that date (if that authority is not conferred by a will), must be registered.

In  other  words,  if  a  father  or  a  mother  or  a  guardian  was  giving/granting authority to any person to give a son in adoption after that date,  other  than  by way of  a  will,  such  document  granting  such authority would be compulsorily registerable. Obviously, the said provision is existent in the Act of 1908 almost 48 years prior to the enactment of the Hindu Adoption and Maintenance Act, 1956.

In this context, clause (vi) of Section 11 needs to be again read very carefully, wherein it is stipulated that the child to be adopted must be actually  given and taken in adoption by the parent or guardian concerned or under their authority with intent to transfer the child from the family of it birth to the family of its adoption.

Thus, the child can be given in adoption even under authority bestowed in that regard by the natural parent or guardian, and to that extent therefore, it would seem in the context of this petition, that the petitioner had given her child to respondent no. 9 on 05.09.2019, further giving her authority to give  the child to respondent no. 7 upon her arrival in India.

Yet, what cannot be ignored, in the opinion of this court, is sub- section (3) of Section 17 of the Registration Act, 1908, which, as seen  hereinabove, stipulates that if a son is to be given in adoption by way of authority (other than by a will), then such document granting such authority, must necessarily be registered.

It  may be  observed  here  that, as  seen  now,  the Supreme Court,   in MasterParam Pal Singh v. M/s National Insurance Company and others, 2013  (2) RCR (Civil) 480, has in fact briefly drawn that distinnction between a deed of adoption and an authority given for adoption (Reference paragraph  12, Law Finder

edition).

 Though as to why that should apply only to a son and not also to a daughter, in terms of Article 14 of the Constitution, would be subject matter of debate in appropriate proceedings, the said provision being one incorporated in an Act which came into effect about 48 years before the commencement of the Constitution of India. However, for the purpose of this petition, the child being a boy, I would hold that any such authority, even given by way of the affidavit executed by the petitioner on 05.09.2019, would be necessary to have been registered and therefore, once a compulsorily registerable document is not registered, the consequences thereof would naturally flow.

(In the present context, it would also be need to be seen that, the petitioner thereafter obviously changed her mind to give the child in adoption and therefore, in all probability, did not actually sign the adoption deed on 03.12.2019, which issue shall be discussed further ahead in this judgment).

81. Presently coming then to the other conditions that are required to be complied with in respect of a valid adoption, in terms of clause (iv) of Section 6 of the Act of 1956, (with such other conditions being contained in Section 11 reproduced herein above).

All learned counsel appearing on both sides, as also learned Amicus Curiae, had specifically brought attention to clause (vi) of Section 11, giving their own interpretions thereof. As per the learned Amicus Curiae and counsel for the petitioner (echoing the argument in that respect of learned Amicus), since a child is required to be necessarily given in adoption by the parents or guardian concerned to the adoptive parents, and the child in the present case having only been given to the sister of the adoptive mother by his natural mother, it cannot be held to be a valid adoption, even though datta homam is not an essential ceremony to be performed.

In that context, learned Amicus had laid specific stress on a recent judgment of the Supreme Court in M. Vanaja v. M. Sarla Devi, AIR 2020 SC 1293, from which he referred to paragraphs 12 and 13, which read as follows:-

“12. A plain reading of the above provisions would make it clear that compliance of the conditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption.  The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grandmother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in  her evidence that the Appellant was not adopted by the Respondent and her husband. Therefore, the Appellant had failed to prove that  she has been adopted by the Respondent and her husband Narasimhulu Naidu.

13. The Appellant relied upon a judgment of this Court  in L. Debi Prasad (Dead) by Lrs. (supra) to submit that abundant evidence submitted by her before Court would point to the fact that  she was brought up as the daughter of the Respondent and her husband (Late) Narasimhulu Naidu. Such evidence can be taken into account to draw inference that she was adopted by them. The facts in L. Debi Prasad (Dead) by Lrs. (supra) case are similar to those in the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in the year 1892 when he was an infant. Shyam Behari Lal was unable to establish the actual adoption but has  produced  considerable documentary evidence to show that he was treated as  the son of Gopal Das for a quarter of century. This Court accepted  the submission of Shyam Behari Lal and held that there was sufficient evidence on record to infer a valid adoption. Though the facts are similar, we are unable to apply the law laid down in L. Debi Prasad (Dead) by Lrs. (supra) to the instant case. L. Debi Prasad (Dead) by Lrs. (supra) case pertains to adoption that took place in the year 1892 and we are concerned with an adoption that has taken place after the Act of 1956 has come into force. Though the Appellant has produced evidence to show that she was treated as a daughter by (Late) Narasimhulu Naidu and the Defendant, she has not been able to establish her adoption. The mandate of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance with  the conditions mentioned in Chapter I of the Act of 1956. The two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established. This Court by its judgment in Ghisalal v. Dhapubai (Dead) by Lrs. & Ors, (2011)2 SCC 298  held  that  the  consent  of  the  wife  is  mandatory  for  proving adoption.”(All emphasis provided in this judgment only, in terms of the stress laid on those lines by the learned Amicus).

82. Mr. Kanwaljit Singh, learned Senior Counsel appearing for respondents no.7 to 10, on the other hand had argued that even the bare provision of clause (vi) of Section 11 stipulates that a child can be given in adoption by either of his parents or the guardian “or under their authority” with intent to transfer the child from the family of his birth to the family of his adoption and no datta homam ceremony being mandatory, therefore, the handing over of the child by the petitoner to respondent no.9, i.e. the sister of respondent no.7, on 05.09.2019, shows that she had intended the child to be given away, under her authority, by respondent no.9 to respondent no.7, (with the child actually thereafter handed over to respondent no.7 by respondent no. 9).

Learned Senior Counsel appearing for the adoptive mother, had relied upon a judgment of the Supreme Court in Master Param Pal Singh (supra), wherein the Supreme Court held as follows:-

“15. Conspectus consideration of the deed of adoption and the oral evidence led on behalf of the appellant, we find that there was a simple ceremony though not a mantra ceremony held in which the deceased participated wherein it was expressed that the deceased being a bachelor thought it fit to take the appellant in adoption for which the biological parents of the appellant were also willing to give him in adoption. In the Adoption Deed it was specifically mentioned that the process of adoption was carried out in the presence of respected persons of the Panchayat in a ceremony where goods and sweets were distributed in commemoration of the function of adoption. It has come in evidence that the Adoption Deed was written by Gurbux Singh on 15.02.1999 who was the Sarpanch of the village at that point of time. The left thumb impression of the deceased was found affixed in the Adoption Deed which was signed both by the biological parents apart from three witnesses, namely, Nishan Singh s/o Dayal Singh of village Chhina Retwala, Tarsem Singh s/o Bawa Singh r/o Dhariwalkalan and Karnail Singh Nambardar of village Kallu Soha. It was stated that about 15 to 20 persons apart from women folk were present at the time when the adoption ceremony was held. The suggestion, that the deed was written later on, was duly denied by the witnesses. It was also stated that the appellant was just three years old at the time when the adoption took place. Further Exhibits AW1/5 and AW1/6 are the copies of ration cards in which it is mentioned that the father of the appellant is Ajit Singh.

16. All the above factors which are born out by records as well as in the oral version of the witnesses, examined on behalf of the appellant, in our considered opinion conclusively proved that the appellant was the adopted son of the deceased having been adopted as early as on 15.02.1999 i.e. long before the death of the deceased, namely, 17.07.2002. Unfortunately, the learned Judge in the impugned judgment has completely misled himself by rejecting the claim of adoption by holding that the document was not registered with the Tahsildar, that no ceremony was held, that the adoptive father was not present, that there was no giving and taking of the adopted son and, therefore, the adoption of the appellant by the deceased not proved. On the contrary, as stated above, we find that everyone of the prescription required for a valid adoption were very much present in the form of both oral and documentary evidence on record and consequently the conclusion of the learned Judge in having held that the appellant was not the adopted son of the deceased cannot be sustained and the same is set aside. Having reached the above conclusion, we proceed to deal with the claim of the appellant on merits.” (Emphasis again applied as per stress laid by learned senior counsel, in this judgment only).

83. It is of course to be noticed that the circumstances of both the cases (the one relied upon by the learned Amicus and other by the learned Senior Counsel for the adoptive mother and others), were different, inasmuch as the child in that case was actually handed over to the adoptive father (and not to a relative); but nevertheless, the judgments having been cited in each case and what has been reproduced from each having been held as it is (though in the circumstances of each case), what is to be now seen is as to whether the ratio of either judgment would apply in the present case.

Looking at what has been held in Param Pals' case, it would seem  that once giving of the child by the petitioner to respondent no.9 on 05.09.2019, is obviously admitted, then seen with the fact that it is the intent behind such giving that is to be seen, it would appear that the adoption would be valid, by way of handing over of the child by the natural mother to the immediate family of the adoptive mother, for the onward handing over of the child to the adoptive mother, once she came to India.

 As a matter of fact, on a plain reading of clause (vi) of Section 11, I would tend to agree with learned Senior Cousnel appearing for respondents no.7 to 10, because what would seem to flow from the said provision is that the natural mother/father/guardian should intend to transer custody of the child, from them to the family of adoption.

Hence, at least on 05.09.2019 very obviously the petitioner did hand over the child to respondent no.9 for further handing him over to respondent no.7, i.e. her sister and the adoptive mother, upon the adoptive mother reaching India from the USA.

Whether or not the petitioner handed over the child to respondent     no. 9 on that date, with a tearful face (as contended by counsel for the petitioner), or with a smiling face, would not be commented upon by this court on the basis of only a photocopy of a picture that has been uploaded, though learned counsel for the petitioner has stated that it was obviously a sad face; yet, that would not really change the fact that the child was admittedly given to respondent no. 9 on that date and a natural mother may in any case have become emotional, even if she was giving the child away willingly.

However, as already discussed in paragraph 80 herein above, in view  of the fact that she did not execute a registered document granting authority to   respondent no. 9 to further hand over the child to respondent no. 7 [in terms of sub-section (3) of Section 17 of the Registration Act], and thereafter, at least in the opinion of this court at this stage more than prima facie (though not ex facie), she did not  sign the  document dated  03.12.2019  in  the  presence of  and along   with respondent no. 7 (as would be discussed further ahead), though she is purported   (by respondents no.7 to 10) to have done so, naturally the document becomes  wholly ‘suspect'.

 84. Even holding so, what obviously this court cannot ignore is that though the affidavit dated 05.09.2019 is a document not signed by respondent  no.7, it is one signed by the petitioner and witnessed by her brother and one Rajinder Kumar and another person (Seema). Therefore, can it be held that the said document alone suffices as proof of adoption given?

In my opinion, though otherwise it may have, even though it is not a formal adoption deed but an affidavit showing the intent of the petitioner who also handed over of the child to the sister of the adoptive mother, yet, it cannot be held to constitute a valid adoption, for three reasons.

85. The first reason, as discussed hereinabove, is that the said affidavit is not a registered document even though it is one effectively conferring authority on respondent no. 9 to further hand over the child to respondent no. 7

As already discussed, sub-section (3) of Section 17 of the Registration Act, would require compulsory registration of such a document, conferring such authority.

86. The 2nd reason to not hold that the adoption may not be valid, is one based on circumstance, which however would need to be proved by way of evidence led before a civil court in appropriate proceedings.

Although respondents no.7 to 10 in the affidavit have stated that “all again assembled on 03.12.2019” at Patiala (though not at the house of respondents no.5 and 6), it is nowhere stated in either that written statement, nor in the written statement of respondents no.5 and 6, that the petitioner was actually present there, though respondents no.7 to 10 tend to imply that.

This  is  despite  the  fact  that  otherwise,  in  the  written  statement of   respondents no. 5 and 6, as also in terms of the arguments made by their counsel,  they are very clear that the child had been given by the petitioner to respondent no.9 on 05.09.2019, as per her own will and they have even stated that respondent no.5, i.e. Arun Gupta, father-in-law of the petitioner, in his statement (vide email  to the SSP on 13.01.2020, copy a part of Annexure R-5/2 with the reply of the said respondent), had said that:-

“….then Sai Kiran and his wife namely Minakshi Gupta came to India from USA and made a call to me that they are coming to Patiala on 03.12.2019 for execution of Adoption deed and Richa Gupta be also called for this purpose, on which my wife Sunita Gupta made a telephonic call to Richa Gupta to come to Patiala as Sai Kiran and Minakshi Gupta are coming to Patiala to execute the Adoption deed, but Richa Gupta refused to come to Patiala and then my wife Sunita Gupta made call to cousin brother of Richa Gupta namely Dharampal also who also shirked to get into the matter, and then the entire things were communicated to Neelam Gupta wife of Jenender Gupta, but still Sai Kiran and his wife namely Minakshi Gupta along with Jenender Gupta and Ashwani Gupta came from Delhi to Patiala on 03.12.2019 and it was told to them to talk to Richa Gupta directly but they said we will see matter on our own level and after some time they left our place.”

Also, earlier in the said statement itself, respondent no.5 stated as follows:-

 “…all the person concerned and present satisfied themsleves with regard to future of child and then it was finalized that since Sai Kiran and his wife namely Minakshi Gupta were at USA at that time thus the necessary documentation may be got ready so that the adoption of child may be given effect legally and thus a deed of adoption was got prepared by Jeneder Gupta, Manisha Gupta and Ashwani Gupta in consultation with Sai Kiran and his wiife name;y Minakshi Gupta and their own lawyer of Delhi and the same was handed over to Richa Gupta and her father babu Ram to agree with the same or not and after going through with the said Adoption deed Richa Gupta consented voluntarily with the said Adoption deed and the said adoption deed was signed by Rich Gupta and Babu Ram in presence of all the persons and said minor Advait was handed over by Richa Gupta to Manisha Gupta on 05.09.2019. However since Richa Gupta was going back to her parents house at Chandigarh forever thus all the matter with regard to her marital rights were also settled.”(All emphasis applied in this judgment only)

 87. Thus, with respondent no.5 having specifically stated in his statement to the police, (which statement he and respondent no.6 have annexed with their own reply and have in fact stated in paragraph 8 thereof that it should be read as a part of the reply), that the adoption deed itself was signed by the petitioner on 05.09.2019, and with the stamp paper also admittedly purchased on 05.09.2019 even as per the adoptive mother in her reply (in paragraph 1, at page no.7 of the reply), it would be very difficult for this court to accept that the date given on the adoption deed, i.e. 03.12.2019, which is a rubber stamped date, is actually the date on which the petitioner signed the document.

Though the impression given in the said paragraph of the reply of respondent no.7 is that the reference to the registration was after the adoption deed was signed on 03.12.2019, however, seen with the stand taken by respondents no.5 and 6, to the effect that in fact the petitioner had refused to come to Patiala to sign the adoption deed, and that it was also signed on 05.09.2019, it would seem very obvious that actually it was not signed by her on 03.12.2019 but on 05.09.2019, as has already been admitted by respondents no.5 and 6, with the petitioner also having actually stated to that effect in her complaint to the Department of Women and Child Development and Social Welfare, Chandigarh (copy Annexure P-2 with the petition); though subsequently in her statement before the police, (Annexure R-3/1, with the reply of the SHO, Police Station Sector-34, Chandigarh), she stated that she had not signed it and was being forced to sign it.

88. Thus, even though Mr. Kanwaljit Singhs' contention that the font on the affidavit dated 05.09.2019 is different to that on the deed shown to be dated 03.12.2019 is one good argument to be considered, however, seen with the fact  that the petitioners' in-laws (respondents no.5 and 6) also stated that in fact the adoption deeds were signed by the petitioner (and therefore seemingly by her father) on 05.09.2019, and with respondents no.7 to 10 also having admitted that the stamp papers were purchased on that date (though that of course could be so even if the deeds were to be signed later), and the petitioner also in her statement made to the police and in her complaint to the Social Welfare Department, has stated that all deeds were got signed on 05.09.2019 itself, and  further, because even as per her in-laws she did not actually come to Patiala after that, simply the font on the affidavit and on the adoption deed being different, would not negate  the other statements made, with regard to it having actually been signed by her on 05.09.2019 (and not on 03.12.2019).

89. One important aspect that needs to be considered however, is the contention of the learned Senior Counsel with regard to concealment of facts by  the petitioner, which obviously is not entirely incorrect, inasmuch as, in  the body of her petition, she has not even referred to the affidavit signed by her on 05.09.2019, nor has she stated that she had actually signed the adoption deed on 05.09.2019, though that deed is shown to be one dated 03.12.2019 by the said respondent.

Yet, firstly, in a petition in which the custody of a child is involved, such petition cannot be thrown out on the ground of any concealment by the childs' mother; and secondly, it is seen that in the representation of the petitioner made to the Social Welfare Department, she has stated that on 05.09.2019 she was forced  to  sign  the  adoption  papers  at  home  under  suspicious  circumstances,  with the (adoptive) couple itself not present  and  therefore she “handed over my son  to  the sibling… of said couple”.

 The said representation has been annexed as Annexure P-2 with her petition itself and consequently it cannot be taken to be a complete concealment of facts, though of course, as said, in the main body of the petition, she has not referred to the adoption deed or even the affidavit executed by her on 05.09.2019.

However, as already said, with her having stated as above in the representation Anenxure P-2, and it in any case being a petition seeking custody of a child, the interest of the child (or even of the other parties involved), cannot be negated by this court due to the fact that the said document has not been referred to in the main petition.

90. Therefore, considering all factors as have been discussed in  paragraphs 86 to 88 hereinabove, I would accept that she actually signed the adoption deed on 05.09.2019, i.e. the date on which she executed the affidavit, but she did not sign it on 03.12.2019 in the presence of respondent no.7 and her husband and other witnesses, with her father also having seemingly signed that deed on 05.09.2019, which is why the photograph of the petitioner, her father and respondent no.10, Jenender Gupta, would appear to be one that was taken on 05.09.2019 in the house of respondents no.5 and 6 (as contended).

Hence, once a document, even if signed by the petitioner on 08.09.2019, is however shown to be subsequently signed by her in the presence of respondent no.7 on 03.12.2019, it cannot be accepted to be an authentic document, with the petitioner seemingly not present at Patiala on that date and therefore, she obviously having decided after 05.09.2019, not to give the child in adoption to respondent no.7, whom she had not even met till then, it cannot be, in the opinion of  this court, held  to  be  a  valid  adoption,  seen  especially with the  fact  that the petitioner  on  05.09.2019  was  seemingly  still  under  the  shock  of  having  been widowed at a very young age, only 1 ½ months earlier, with her whole life in front of her.

91. Even having observed herein above to the effect that the adoption  deed dated 03.12.2019 would not seem to be a valid adoption deed, yet, I would  not actually hold so as a final opinion (as regards it having been signed in the presence of all parties as it purports to show), in the absence of any extensive evidence led on oath before this court and consequently, would leave that to be a matter of trial in appropriate proceeding before a competent court where evidence can be led in extenso (if any of the parties institute any such proceedings), by proving the presence/non-presence of the petitioner at Patiala on 03.12.2019,  either by phone call details or otherwise.

Even so, for the purpose of this petition, by which the petitioner seeks  custody of her natural born son, I would still hold that the adoption deed dated   03.12.2019 being very suspicious as regards its authenticity of having been signed   in the presence by both parties, on 03.12.2019, and with the petitioner being under   mental  pressure  and  therefore  not  having  signed  it  (even  on  05.09.2019)  in a  balanced state of mind and the adoption therefore not being valid, hence even in terms of the Act of  1956 I would not hesitate in directing that custody of the child be handed over back to the petitioner at this stage, subject to any proceedings  being instituted before a competent ‘trial' court, with extensive evidence to be  taken by that court, as may be led by each party.

92. In fact, the third reason for holding that the adoption would not be valid, with therefore the petitioner entitled to the custody of her child, is that in such adverse circumstances of her having become widowed at a young age with an infant in her arms and with (possibly) advice coming from her parents-in-law (as alleged  by  her  though  she  has  termed  it  as  “pressure”  and  not  “advice”), her confused state of mind can be easily understood.

 Further, with respondent no.7 in her reply (reference paragraph 4 thereof), having admitted that after execution of the deed, the petitioner as well as her parents assured that it would be registered to make it more authentic and legal, and that it would take some time for the petitioner to reconcile to that fact, it becomes all the more obvious that the petitioner was not fully reconciled to actually giving her child in adoption even on 05.09.2019 and was doing it under emotional and mental pressure.

Next, to repeat, with her in-laws also stating that she had refused to come to Patiala to sign the document, very obviously she had already changed her mind about giving the child in adoption.

Hence,   all   other   things   apart,   the   giving   of   the   child   in  the   circumstances of her being under emotional stress of losing her husband one and a   half months earlier, with a three month old baby in her hands, the adoption cannot   be held to be of her free will in a sound emotional and mental state.  

On that ground alone, in my opinion, the adoption cannot be held to  be a valid one, she thereafter having approached even the police and the Social Welfare Department in the middle of December 2019.

93. In view of the aforesaid discussion, even if the JJ Act of 2015 were to be held to be not applicable in the present case, with only the Act of 1956 to be applicable, this court would still hold that the petitioner is entitled to the custody   of her child, with his adoption by respondent no.7 being  highly questionable for the detailed reasons given hereinabove in paragraphs 84 and 86 to 91; and it not being a valid deed in any case, for the reasons given in paragraph 92.

In a nutshell:-

Firstly, keeping in view the ratio of the judgment of the Supreme Court in Ruchi Majoos' case (supra), this court would be within its jurisdiction in such a petition to go into the issue in depth;

2nd, it is held, more than just prima facie at least, that the adoption deed dated 03.12.2019 would not seem to be an authentic deed signed by both parties on that date;

3rd, the authority given to respondent no.9 by the petitioner, cannot be held to be proved in the absence of the registration of any document conferring such authority, as per the requirement of Section 17(3) of the Registration Act;

4th, in any case the giving of the baby to respondent no.9 not being in  a sound emotional and fit mental state by the petitioner, it cannot be held to be a valid adoption, and therefore with the petitioner having changed her mind thereafter with regard to giving the child given in adoption before an authentic adoption deed was signed by both parties in each others' presence with the natural mother handing over the child to the adoptive mother/father, the custody of the child needs to be handed over to the petitioner.

94. Coming then to the third question framed in para 66 supra, of whether actually it is the Act of 1956 or the Act of 2015 that would be applicable in the  case of an adoption of the child by respondent no.7 and her husband.

In the opinion of this court, in fact, it would be the Act of 2015 that would be applicable and not the Act of 1956, in view of the fact that the petitioner and her husband are presently (and admittedly), ordinarily residents of the USA and not of India, for more than one year even on the date that they decided to take the child in adoption. (Further discussion on that is in para 100 ahead).

In that context, the relevant provisions of the Act of 2015, are reproduced hereinbelow, in extenso.

95. Firstly, it is to be noticed that the said Act is applicable to the whole of India and was brought into effect w.e.f. 15.01.2016, vide a notification issued to that effect.

The preamble to the Act reads as follows:-

 “THE JUVENILE JUSTICE (CARE AND PROTECTION

OF CHILDREN) ACT, 2015

An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, hereinunder and for matters connected therewith or incidental thereto.

WHEREAS, the provisions of the Constitution confer powers and impose duties, under clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47, on the State to ensure that all the needs of children are met and that their basic human rights are fully protected;

AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;

AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), and other related international instruments.

BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:”

 Sub section (4) of Section 1 of the said Act, 2015, reads as follows:-

 Short title, extent, commencement and application

“1. (1) This Act may be called the Juvenile Justice (Care and Protection of Children) Act, 2015.

(2) x x x x x x   x x x   x x x   x x x x x x x x x

(3) x x x x x x   x x x   x x x   x x x x x x x x x

(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including —

(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law;

(ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.

 Definitions.2. In this Act, unless the context otherwise requires,—

(1) “abandoned child” means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry;

(2) “adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child;

(3) “adoption regulations” means the regulations framed by the Authority and notified by the Central Government in respect of adoption;

(4) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(5) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(6) “authorised foreign adoption agency” means a foreign social or child welfare agency that is authorised by the Central Adoption Resource Authority on the recommendation of their Central Authority or Government department of that country for sponsoring the application of non-resident Indian or overseas citizen of India or

persons of Indian origin or foreign prospective adoptive parents for adoption of a child from India;

(7) “Authority” means the Central Adoption Resource Authority constituted under section 68;

(8) x x x x x x x x x x x x x x x x x x x x x

(9) “best interest of child” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development;

(10) x x x x x x x x x x x x x x x x x x x x x

(11) “Central Authority” means the Government department recognised as such under the Hague Convention on Protection of Children and Cooperation in Inter-country Adoption (1993);

(12) “child” means a person who has not completed eighteen years of age;

(13) x x x x x x x x x x x x x x x x x x x x x

(14) “child in need of care and protection” means a child—

(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or

(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or

(iii) who resides with a person (whether a guardian of the child or not) and such person—

(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or

(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or

(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or

(iv) who is mentally ill or mentally or physically challenged or suffering

from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or

(v) who has a parent or guardian and such parent or guardian is found to

be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or

(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or

(vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or

(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or

(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or

(x) who is being or is likely to be abused for unconscionable gains; or

(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or

(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;

(15) “child friendly” means any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child;

(16) “child legally free for adoption” means a child declared as such by the Committee after making due inquiry under section 38;

(17) to (27) x x x x x x x x x x x x x x x x x x x x x

(28) “fit person” means any person, prepared to own the responsibility of a child, for a specific purpose, and such person is identified after inquiry made in this behalf and recognised as fit for the said purpose, by the Committee or, as the case may be, the Board, to receive and take care of the child;

(29) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(30) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(31) “guardian” in relation to a child, means his natural guardian or any other person having, in the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognised by the Committee or, as the case may be, the Board as a guardian in the course of proceedings;

(32) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(33) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(34) “inter-country adoption” means adoption of a child from India by nonresident Indian or by a person of Indian origin or by a foreigner;

(35) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(36) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(37) “no objection certificate” for inter-country adoption means a certificate issued by the Central Adoption Resource Authority for the said purpose;

(38) “non-resident Indian” means a person who holds an Indian passport and is presently residing abroad for more than one year;

(39) to (42) x x x x x x x x x x x x x x x x x x x x x

(43) “overseas citizen of India” means a person registered as such under the Citizenship Act, 1955;

(44) “person of Indian origin” means a person, any of whose lineal  ancestors is or was an Indian national, and who is presently holding a Person of Indian Origin Card issued by the Central Government;

(45) to (48) x x x x x x x x x x x x x x x x x x x x x

(49) “prospective adoptive parents” means a person or persons eligible to adopt a child as per the provisions of section 57;

(50) & (51) x x x x x x x x x x x x x x x x x x x x x

(52) “relative”, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent;

(53) “State Agency” means the State Adoption Resource Agency set up by the State Government for dealing with adoption and related matters under section 67;

(54) to (59) x x x x x x x x x x x x x x x x x x x x x

(60) “surrendered child” means a child, who is relinquished by the parent or guardian to the Committee, on account of physical, emotional and social factors beyond their control, and declared as such by the Committee;

(61) all words and expressions used but not defined in this Act and defined in other Acts shall have the meanings respectively assigned to them in those Acts.

CHAPTER II

GENERAL PRINCIPLES OF CARE AND PROTECTION OF CHILDREN

3. The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:––

(i) to (iii). x x x x x x x x x x x x x x x x x x x x x

(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be. (vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.

(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.

(viii) x x x    x x x   x x x   x x x   x x x    x x x    x x x

(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.

(x) x x x x x x x x x x x x x x x x x x x x x

(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.

(xii) to (xv) x x x x x x x x x x x x x x x x x x x x x

(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule  against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.

XXX XXX XXX XXX XXX

CHAPTER VIII ADOPTION

56. (1) Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations framed by the Authority.

(2) Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.

(3) Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956.

(4)  All inter-country adoptions shall be done only as per the provisions of this Act and the adoption regulations framed by the Authority.

(5) Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the care and custody of a child to another person in a foreign country without a valid order from the Court, shall be punishable as per the provisions of section 80.

57. (1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for

providing a good upbringing to him.

(2) In case of a couple, the consent of both the spouses for the adoption shall be required.

(3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.

(4) A single male is not eligible to adopt a girl child.

(5) Any other criteria that may be specified in the adoption regulations framed by the Authority.

 Procedure for inter-country adoption of an orphan or abandoned or surrendered child.

58. x x x x x x   x x x   x x x   x x x x x x x x x

59.

(1) to (11) x x x x x x   x x x   x x x   x x x x x x

 (12) A foreigner or a person of Indian origin or an overseas citizen of India, who has habitual residence in India, if interested to adopt a child from India, may apply to Authority for the same along with a no objection certificate from the diplomatic mission of his country in India, for further necessary actions as provided in the adoption regulations framed by the Authority.60. (1) A relative living abroad, who intends to adopt a child from his relative in India shall obtain an order from the court and apply for no objection certificate from Authority, in the manner as provided in the adoption regulations framed by the Authority.

(2) The Authority shall on receipt of the order under sub-section (1) and the application from either the biological parents or from the  adoptive parents, issue no objection certificate under intimation to the immigration authority of India and of the receiving country of the child.

 (3) The adoptive parents shall, after receiving no objection certificate under sub-section (2), receive the child from the biological parents and shall facilitate the contact of the adopted child with his siblings and biological parents from time to time.

62. (1) The documentation and other procedural requirements, not expressly provided in this Act with regard to the adoption of an orphan, abandoned and surrendered child by Indian prospective adoptive parents living in India, or by non-resident Indian or overseas citizen of India or person of Indian origin or foreigner prospective adoptive parents, shall be as per the adoption regulations framed by the Authority.

(2) The specialised adoption agency shall ensure that the adoption case of prospective adoptive parents is disposed of within four months from the date of receipt of application and the authorised foreign adoption agency, Authority and State Agency shall track the progress of the adoption case and intervene wherever necessary, so as to ensure that the time line is adhered to.

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.

64. Notwithstanding anything contained in any other law for the time being in force, information regarding all adoption orders issued by the concerned courts, shall be forwarded to Authority on monthly basis in the manner as provided in the adoption regulations framed by the Authority, so as to enable Authority to maintain the data on adoption.

 (65 to 67) x x x x x x   x x x   x x x   x x x x x x x x x

68. The Central Adoption Resource Agency existing before the commencement of this Act, shall be deemed to have been constituted as the Central Adoption Resource Authority under this Act to perform the following functions, namely:—

(a) to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with State Agency;

(b) to regulate inter-country adoptions;

(c) to frame regulations on adoption and related matters from time to time as may be necessary;

(d) to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption;

(e) any other function as may be prescribed.

 (All emphasis applied in this judgment only).

 96. Of the aforesaid provisions as have been reproduced, first of all sub sections (3) and (4) of Section 56 need to be referred to, the first of which postulates that the Act of 2015 shall not apply to any adoption of children made under the provisions of the Act of 1956.

Immediately thereafter however, sub section (4) stipulates that all inter-country adoptions shall be done only under the provisions of the Act of 2015, and the adoption regulations framed by the authority. (Authority has been defined in Section 2(7) to mean the CARA, constituted under Section 68 of the Act).

What is very essential to notice is that despite sub section (3) of Section 56 stipulating that the Act of 2015 would not be operative in the case of an adoption to which the Act of 1956 applies, however, sub section (4) still goes on to say that all inter-country adoptions would be governed by the Act of 2015.

Learned senior counsel appearing for respondents no.7 to 10 had laid stress on what has been held by a co-ordinate bench in Jasmine Kaurs' case (supra), to the effect that the question of an inter-country adoption applying to an adoption that takes place in respect of a Hindu “giving party” and  “adoptive  party” would not arise, as the Act of 2015 applies only to the adoption of  orphaned, abandoned and surrendered children.

Thus, it was held that where the natural parents and the adoptive parent are both Hindus (or Budhists, Jains or Sikhs), who have mutually agreed to give and take (respectively) a child, with that adoption conforming to the conditions stipulated in the Act of 1956, then even in terms of Section 56(3) of the Act of 2015, it would be the Act of 1956 that would prevail and not the JJ Act, 2015. This was held to be so even in a case where the adoptive parents are foreign citizens (as was the case in that petition).

97. In brief, in that case the natural mother was giving her child in adoption to her sister who was a British citizen, with the adoption deed duly registered and there being no conflict between the natural and adoptive parents as regards either the validity of the adoption deed or the custody of the child.

The problem arose because, after the deed had been registered and the child had been taken in adoption, the adoptive parents applied for an Indian passport for the child, which was refused by the concerned passport authority, on the ground that no certificate had been obtained from CARA though the adoption was an international adoption.

Such refusal by the passport authority was challenged by the adoptive parents and eventually it was held by this court (co-ordinate Bench), that in fact there was no need for obtaining such a certificate from CARA. Yet, to facilitate  the smooth transition of the child from one family to another and one country to another, CARA was directed to issue that certificate.

The Union of India opposed that petition, and in fact, I have been informed that CARA has appealed against the said decision before a Division Bench of this court, with that appeal (LPA No.517 of 2020) to be finally adjudicated upon as yet.

98. It has been held in the penultimate paragraph of that judgment (Jasmine Kaur) that:-

“…it is not mandatory to invoke the JJ Act, 2015, in the facts of the present case, where the adoption is a direct adoption by the parents of the non-adoptive parents/relatives  under HAMA. As  per  Section  5.2 of  X  of  the  Passport  Manual  of  2016,  and  in  view  of  Part-I  of Schedule-III under Rule 5 of the Passport Rules of 1980, NOC from CARA, is required only by a foreign parents and not by Indian parents.”

Though it has been stated in the aforesaid paragraph that it was not mandatory to invoke the JJ Act, 2015, in the facts of that case, yet, a reading of the entire judgment shows that the ratio thereof is to the effect that even when Indian parents/parents of Indian Origin are living abroad but are those as would be governed by the provisions of the Act of 1956, adopt a child from Hindu parents in India, especially in the case of relatives, the Act of 2015 would have no  application at all, even in terms of sub section (3) of Section 56 thereof.

In fact it is to be noticed that Mr. Anil Malhotra, who assisted as amicus curiae in the present case, was also appointed as amicus in that case, and it was his stand there, that in fact the JJ Act may not apply in view of Section 56 (3). That, in fact, is what he had also initially argued before this Bench (in the present petition) but subsequently he had also submitted that the JJ Act would still apply in view of the fact that the said Act is a beneficial legislation in ratification of the Hague Convention (on the Rights of the Child), adopted by the General Assembly of the United Nations, on December 11, 1992, and therefore, the Act would apply to all such international adoptions.

99. With the utmost respect to what has been held by the hon'ble co- ordinate bench, I am in agreement with that argument of Mr. Malhotra, for the reasons set out hereinafter.

100. In that context, first of all, the definition of “inter-country adoption”  as given in sub section (34) of Section 2 of the Act of 2015, is that it means adoption of a child from India by a Non-resident Indian or by a person of Indian origin or by a foreigner.

Thereafter,  sub  section  (38)  of  Section  2  defines  a   “Non-resident Indian” to be a person who holds an Indian passport and is presently residing abroad for more than one year.

 In the present case, admittedly, respondent no.7 and her husband are residing in the USA since 2014, and therefore, as on the date shown in the ‘adoption deed' (which has already been held hereinabove to be a very questionable one), they had been residing abroad for about 5 years.

Hence, they are Non-resident Indians for the purposes of the Act of 2015.

101. Coming then to what has also been held in Jasmine Kaurs' case (supra), to the effect that the Act of 2015 is an Act actually enacted to take care of either juveniles in conflict with law, or for the purpose of adoption of those children who are abandoned, orphaned or surrendered (to the Committee constituted under Section 27 of that Act), with sub-section (60) of Section 2 defining a surrendered child).

(a) Though that may seem to be so from a reading of the Statement of Objects and Reasons for enactment of the said Act, paragraph 5 of which only refers to adoption of orphaned or surrendered children; however, firstly, the Preamble to the Act states that it is one to consolidate and amend the law “relating to children alleged and found to be in conflict with law and children in need of

care and protection by catering to their basic need through proper care and protection, development, treatment, social reintegration, by adopting a child friendly approach in the adjudication and disposal of matters ”.

Thus, it does not restrict itself to the care of only  bandoned/orphaned/surrendered children, or those in conflict with law, but extends its wings to protect all children who are in need of care and protection.

Hence, in my opinion, a child who is being taken to a far off country by way of adoption, is definitely a child who needs to be protected and cared for, which is why inter country adoptions are one category of adoptions that must adhere to the provisions of the Act of 2015 and the Adoption Regulations framed thereunder, with CARA being the authority that is required to go into the question of the appropriateness of any couple/person living abroad, to adopt a child from India.

It also cannot be forgotten that the need for protection of children being taken to a foreign country becomes all the more necessary with there having been too many unfortunate cases of child abuse in the past (sexually or for purposes of labouring in houses etc.)

Hence, background checks by CARA and its equivalent authority in a foreign country becomes imperative in the case of an inter country adoption.

 For that purpose, CARA is necessarily required to be in communication with the equivalent authority set up in the other country, with that authority to furnish a Home Study Report, in terms of Rule 1 of Regulation 15 of the said Adoption Regulations (as would be discussed further ahead also in paragraph 108).

(b) The next reason on account of which I find myself (again with due respect to the learned co-ordinate Bench which painstakingly has passed a detailed judgment in that case), unable to agree with that view point, is the fact that sub section (1) of Section 60 of the Act of 2015 postulates as follows:-

“60. (1) A relative living abroad, who intends to adopt a child from his relative in India shall obtain an order from the court and apply for no objection certificate from Authority, in the manner as provided in the adoption regulations framed by the Authority.

(2) The Authority shall on receipt of the order under sub-section (1) and the application from either the biological parents or from the adoptive parents, issue no objection certificate under intimation to the immigration authority of India and of the receiving country of the child.

(3) The adoptive parents shall, after receiving no objection certificate under sub-section (2), receive the child from the biological parents and shall facilitate the contact of the adopted child with his siblings and biological parents from time to time.”

102. Hence sub section (1) of Section 60 obviously visualises a situation where a relative living abroad would adopt a child from a relative living in India.

Equally obviously, if a child is being adopted from a relative in India, i.e from his/her natural parents in India, that child cannot be described to be either orphaned or abandoned or surrendered.

103. However, Section 62 of the Act of 2015 again requires to  be looked at, with sub-section (1) thereof reading as follows:-

“62. Additional procedural requirements and documentation.– (1) The documentation and other procedural requirements, not expressly provided in this Act with regard to the adoption of an orphan, abandoned and surrendered child by Indian prospective adoptive parents living in India, or by non-resident Indian or overseas citizen of India or person of Indian origin or foreigner prospective adoptive parents, shall be as per the adoption regulations framed by the Authority.”

One interpretation of Section 62 (1) could be that the said provision would apply only to adoption of orphaned/abandoned/surrendered children in  India, by either a person living in India or by a person living in another country [whether that person be a foreign citizen or an Oversees Citizen of India (OCI) or a Non-Resident Indian (NRI)].

The other interpretation could be that it applies not only to adoption of abandoned/orphaned/surrendered children by Indian adoptive parents, but also to all adoptions of children in India, by foreign citizens, Oversees Citizens of India and Non-Resident Indians [as defined in Section 2(38)].

However, even if  the first interpretation is  to  be  accepted, still in any case, with sub-section (1) of Section 60 specifically referring to adoption of a child   by a relative living abroad, from his relative in India, then, as already observed  said hereinabove, that child would, naturally, not be an orphaned/ abandoned/surrendered child.

 104. Hence, though undoubtedly the Statement of Objects and Reasons for enacting the Act does not specifically talk of inter country adoptions, and refers mainly to children who are juveniles in conflict with law or are abandoned/orphaned/surrendered, yet the Preamble to the Act, as already seen, states that the Act is one relating to children in conflict with law and children in need of care and protection, by catering to their basic needs of proper care and protection etc.

Further, even clause 5 of the Statement of Objects and Reasons states that reenactment of the old Act was necessary to bring about a comprehensive legislation to “…provide for general principles of care and protection of children and for procedure in the case of children who are in need of such care and protection and children in conflict with law……adoption of orphaned/abandoned/surrendered children…”

(All emphasis applied here only) Thus, though again adoption is spoken of only in relation to orphaned/abandoned/surrendered children, the objective of the new Act was to

provide for general principles of care and protection of all children.

Hence, with there also being a provision in the Act, i.e. Section 60, specifically talking of adoption of a child from a relative in India (thereby obviously not being an abandoned/orphaned/surrendered child), it cannot be said, in the opinion of this court, that it would be an Act only applicable to the adoption of abandoned/orphaned/surrendered children.

This is to be further seen again with the fact that though  as  per Section 56 (3), the Act of 2015 is not to apply where the Act of 1956 is applicable, however, sub-section (4) immediately thereafter holds that all inter country adoptions must be in terms of the provisions of the Act of 2015.

105. Again, it also cannot be lost sight of that an inter country adoption is specifically defined in the Act of 2015; and the said Act being one that  was enacted in pursuance to ‘ratification' of India being a signatory to the Hague Convention of 1992, then simply because the preamble to the Act has ‘missed out' specifically mentioning inter country adoptions, it would not be possible to ignore

the substantive provision as has been discussed hereinabove, i.e. what is contained in Section 60,  (with sub-section (1) thereof obviously  not  applying to abandoned/surrendered/orphaned children as already said),  also with  sub  sections (34) & (38) of Section 2 defining an inter-country adoption and a non-resident Indian, as they do, respectively. Therefore, sub-section (4) of Section 56 would mean that all inter-country adoptions would be governed by the Act of 2015.

106. Though nothing extra can be read into a statute as per law well settled, equally obviously, a substantive provision contained in a statute cannot be ignored  and therefore, to achieve the aims and objective of the Act, not only what is contained in its Statement of Objects and Reasons and Preamble is to be looked at, but the substantive provisions contained therein also have to be read in entirety, with the substantive provision naturally taking precedence over the preamble,  even if a particular substantive provision does not find a reference in the preamble.

 Ignoring such a substantive provision would render it completely  otiose, which cannot be so, because the said provision has been actually incorporated in the Act, consciously.

Hence, in my opinion, the Act of 2015, as regards its application to adoption of children, does not apply only to orphaned, abandoned and surrendered children, but also to all children who are being adopted from India by non-resident Indians or foreign citizens.

107. Having observed as above, it is of course to be noticed that Sections 58, 59 and 60 are applicable to procedure for inter-country adoptions by prospective adoptive parents living in India, for inter-country adoptions of an orphaned/abandoned/surrendered child, and for inter-country adoptions by a relative (respectively), with there seemingly being no specific provision  [other than Section 62 (1)], catering to an inter-country adoption from a person other than a relative.

That would not, in the opinion of this court, obviate the need for approval by CARA, of such adoption by adoptive parents living abroad, as regards a child being adopted from India.

In fact the implication would seem to be that no person living abroad  

for more than one year, can adopt a child from India unless the child is that of  

her/his relative, or is an orphaned/abandoned/surrendered child.  

In fact, the term “relative” has also been defined in Section 2(52) of the Act, to mean a paternal or a maternal aunt or uncle, or a paternal or maternal grandparent.

Admittedly, though respondent no.7 is stated to be in some distant relation to respondent no.6 (i.e. the mother-in-law of the petitioner), she is neither

a  paternal  or  maternal  aunt  to  the  child,  nor  obviously  his  grand-mother, and   consequently, she cannot be adopting the child in such capacity of a relative.

 108. Of course, if an orphaned/abandoned/surrendered child is to be adopted,  then even  a non-resident  Indian or a  foreign national  can adopt  such  a child from India, subject to approval of CARA, which is an authority set up in India under Section 68 of the Act of 2015, with sub section (a) to (e) thereof  stating that the authority is specifically to promote and frame regulations etc. for inter-country adoptions.

In this context, of the provisions of the Adoption Regulations, 2017,  as have been enumerated in detail by learned amicus curiae in his supplementary report, Regulation 15 needs to be referred to, which lays down the procedure for inter-country adoption from India. Rules 1 and 2 of Regulation 15 are reproduced hereinbelow:-

“15. Registration and Home Study Report for prospective adoptive parents for inter-country adoption.-(1) Any Non-Resident Indian, Overseas Citizen of India or foreign prospective adoptive parents, living in a country which is a signatory to the Hague Adoption convention and wishing to adopt an Indian child, can approach the Authorised Foreign Adoption Agency or the Central Authority concerned, as the case may be, for preparation of their Home Study Report and for their registration in Child Adoption Resource Information and Guidance System.”

(2) In case, there is no Authorised Foreign Adoption Agency or Central Authority in their country of habitual residence, then the prospective adoptive parents shall approach the Government department or Indian diplomatic mission concerned in that country for the purpose.

(3) to (16) xxxxx xxxxx xxxxx

 (Emphasis applied here only).

 (The remaining rules of the said regulation are not being reproduced  in extenso as they only enumerate the process of registration and the procedure for CARA to follow, in the case of adoption of a child from India).

109. Hence, a perusal of the said regulation and others contained in  Chapter IV of the Adoption Regulations, would show that in fact non-resident Indians living abroad can only adopt by the said procedure, and obviously only through CARA.

It would also indicate that since non-resident Indians etc. cannot adopt any child from India except through CARA, that would mean that they can adopt only orphaned/abandoned/surrendered children, unless such adoption is from a relative (as defined in Section 2 (52), in which case the procedure stipulated in Section 60 of the Act of 2015 would need to be followed.

110. As regards the judgment cited by Mr. Kanwaljit Singh in Shabnam Hashmis' case (supra), though undoubtedly in paragraph 11 thereof (Law Finder edition), it has been stated that the JJ Act of 2000 does not mandate any compulsory action for any prospective parent, thereby leaving such person with the liberty of ‘accessing the provisions of the Act' if he so desires; however, firstly,  that judgment describes in detail the background of enactment of that Act, i.e. it being for the welfare of the children and in paragraph 3 it also states that it deals with inter country adoptions for which elaborate guidelines had been laid down by the Supreme Court in Laxmi Kant Pandey v. Union of India, with a regulatory body, i.e. CARA, having been created by the Central Government thereafter.

Secondly, that judgment refers to the JJ Act 2000 and not the subsequent Act of 2015, the judgment itself having been pronounced on 19.02.2014.

Thus, even though the Act of 2000 otherwise may be largely pari materia to the Act of 2015, however, obviously Section 60 of the Act of 2015 could not have been taken into consideration in that judgment, wherein procedure for adoption of children in India from a relative has been stipulated.

Hence, in my opinion a single reference in Shabnam Hashmi to  the Act of 2000 being an optional Act to be resorted to by anybody who wishes to do so, cannot be relied upon by the learned Senior Counsel for respondents no.7 to 10 herein to pursuade this court to hold that the Act of 2015 would not mandatorily apply to all inter country adoptions, with it again to be noticed that even in the said judgment, the objectives of enactment of the Act of 2000 were  extensively  referred to, i.e. it is for the benefit and welfare of children.

This is to be seen with the fact that thereafter the new Act of 2015 has come into existence repealing the old Act, with, naturally, each provision of the new Act to be looked at to arrive at a conclusion with regard to its applicability.

111. Consequently, I would hold that for all inter-country adoptions, even by those who are otherwise governed by the Act of 1956, i.e. Hindus, Budhists, Jains or Sikhs by religion and those who are not Muslims, Christians, Parsis or Jews, it would be the JJ Act of 2015 that would apply and therefore, sub-section

(3) of Section 56 can only be read to mean (in the opinion of this court), that where the adoption is not of an abandoned/orphaned/surrendered child, and is not an inter-country adoption of any child, then it would be the Act of 1956 that would apply (in the case of Hindus, Sikhs, Jains and Budhists) and not the Act of 2015.

But if it is an inter-country adoption, or an adoption even within India in  the  case  of  an  orphaned  or  abandoned  child  (as  per  Section  58),  it would necessarily be the Act of 2015 that would be applicable, with all the safeguards and procedures provided therein to be necessarily followed.

 Therefore, it would be the Act of 2015 and not that of 1956, as would apply to the present case.

Obviously, the above provisions of the Act are to ensure that the child is  well  protected  and  looked  after  even  after  his  exit  from  India  to  a foreign  country, because prior to CARA granting any certificate for care and adoption by a person living outside India (for more than one year), necessarily has to obtain a study report even from the authority constituted for such purpose in the country to which the child is to be taken, i.e. the “authorised foreign adoption agency”  defined in sub section (6) of Section 2 of the Act of 2015.

Hence, all such adoptions must first be approved by the authority constituted under Section 68 of the said Act, i.e. CARA, after which only, an adoption even by Indian parents living outside India for more than one year, can be legally and validly made.

112. However, since the conclusion arrived at by this bench, on the application of the Act of 2015, is contrary to what has been held by a co-ordinate bench in Jasmine Kaurs' case (supra), the matter needs to be referred to a larger bench on the following question formulated by this court:-

“As to whether in terms of sub sections (6), (34), (37) and (38) of Section 2, read with what is contained in Sections 60 and 68 and other provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, as also the Adoption Regulations framed under the provisions of Sections 68 (c) and 2 (3) of that Act, would respondent no.7 require a certificate from the authority constituted under Section 68 of the Act, before adopting a child from India, with respondent no.7 being a non-resident Indian as defined in Section 2(38) of the said Act?”

 Since a Division Bench is already seized of the issue in LPA No. 517 of 2020, this matter, as regards that question, be placed before their Lordships of the Division Bench, after obtaining necessary orders from hon'ble the Chief  Justice.

113. Yet, firstly, in view of the fact that this court has formed an opinion, more than just prima facie (though not ex facie in the absence of any detailed evidence led), that the adoption deed shown to be executed on 03.12.2019 is a highly suspicious document as regards its authenticity; and secondly, the intention to give the child in adoption being at a time when the petitioner cannot be said to be in a stable mental and emotional state, due to the recent death of her husband (and therefore it not being a valid adoption), custody of the child is directed to be returned immediately to the petitioner by respondent no.7, even pending further adjudication on the issue either by the Division Bench as regards the applicability of the JJ Act, 2015 and the consequences of not having obtained a necessary certificate from CARA by respondent no.7.

114. As regards whether it would be in the interest of the child to be left, even in the interregnum, with respondent no.7 as his adoptive mother, or with the petitioner who is his natural mother, though undoubtedly it would seem that, looking at the financial aspect at least, it would be respondent no.7 and her  husband who are better off than the petitioner, yet, as has also been held by the Supreme Court in Mausami Moltra Ganguli v. Jayant Ganguli 2008(4) RCR (Civil) 551, it is not just a single factor of financial betterment, nor even of natural love etc. alone, that is to weigh with the court while granting custody to any particular person, but the overall benefit of the child and the entire circumstances  of the case.

In the present case obviously, if the petitioner had not decided (in a  not fully fit emotional and mental state), to give the child in adoption at all, his custody would have continued with her, she being his natural mother, and the question of being given away in adoption would not have arisen in the first place.

[Of course, it may also be noticed here that counsel for the petitioner had submitted that the petitioners would always continue to receive support from her father and brother, and in any case, she being an educated person, would be able to secure a job too].

Albeit, once this court has held that the validity of the adoption itself  is highly questionable and not valid even in terms of the Act of 1956, (for all the reasons given, especially in paras 91 and 92), then naturally, whether or not the child enjoys a better future anywhere else, his natural guardian would be the petitioner, i.e. his natural mother, even in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, which lays down that the natural guardian of a boy and an unmarried girl is the father, and after him the mother, with the custody of a child who has not completed 5 years of age to be ordinarily with the mother.

Therefore, with the child being now about 1 year and 3 months old, and his father having already died on July 22, 2019, it would be his natural mother who would be his natural guardian, i.e. the petitioner, once the adoption by respondent no.7 is held to be questionable and not valid.

Further, what this court also cannot overlook, is the fact that respondent no.7 is 52 years old, with her husband being 43 years old, and though, as already said, there is no legal bar under the Act of 1956 on her adopting a child at that age, yet, in the opinion of this court their age also would be a factor to be gone into as regards the upbringing and welfare of the child.

115. To sum up, the conclusions reached in this judgment with regard to  the three questions framed in paragraph 66 hereinabove, are as follows:-

(i) That this petition is maintainable (in view of what has been discussed in paragraphs 68 to 71, supra);

(ii) That the adoption does not seem to be valid (as regards (b) below, and in any case not valid as per (a) and (c) below), even under the provisions of the Act of 1956, in view of the fact that:-

(a) the giving of the child by the petitioner to respondent no.9, though is backed by her affidavit dated 05.09.2019, that   

affidavit being only an authority to respondent no.9 to further hand over the child to respondent no.7, such document of authority is required to be compulsorily registered in terms of sub section (3) of Section 17 of the Registration Act, 1908 (as discussed in paragraphs 80, the last part of para 83, and para  85 supra);

(b) the adoption deed dated 03.12.2019, would not seem to be a valid document as it purports to show that the petitioner signed it on that date in the presence of respondent no.7 and her husband, whereas even as per respondents no. 5 and 6 that document was signed by the petitioner on 05.09.2019 (and not 03.12.2019) and therefore, the presence of the petitioner on 03.12.2019 in Patiala as the document purports to show, is highly doubtful thereby making it a very questionable deed (as discussed in paragraphs 86 to 90 supra);

(c) that even otherwise the adoption deed cannot be said to be valid in view of the fact that the petitioner was not in a fully stable mental condition and was under mental stress of having lost her husband only 1½ months earlier, and with her holding a 3 month old baby and further, she therefore having changed her mind as regards the adoption subsequently and not having come to Patiala, to sign the document on 03.12.2019 (as discussed in paragraphs 91 and 92 supra);

(iii) That in any case, in the opinion of this court,  it would be the  JJ Act of 2015, as would apply for an inter-country adoption, the adoptive mother and her husband admittedly being Indian citizens residing abroad for more than one year; and consequently  a certificate from CARA would be essential to validate any such adoption (as discussed in paragraphs 94 and 96 to 111 supra).

116. Thus, for the sake of repetition, it is again stated that for the reasons already discussed in detail, this court having firstly reached a finding that the said adoption is not legally valid even in terms of the Act of 1956, the custody of the child needs to be returned immediately to the natural mother, i.e. the petitioner.

It needs to be observed here that though the issue of applicability of the Act of 2015 is being referred to a larger bench, however, even so, with the opinion expressed on the adoption being highly questionable as regards the authenticity of its proposed date of signing and presence of all parties together;   and in any case it being not valid even under the Act of 1956, because of the  mental condition of the petitioner, the custody of the child needs to be returned to the mother (as regards the outcome of this petition, which is one seeking such custody).

117. It further needs to be observed that any person would understand that respondent no.7 would obviously have developed an attachment to the child in the past about nine months that she has had his custody (stated to be since  22.11.2019), which would also reflect from her willingness to transfer her entire savings of Rs. 50 lakhs to him. However, her sentiments are to be weighed against the sentiments of the petitioner who is the natural mother of the child, who legally would be entitled to his custody in view of what has been held in extenso hereinabove; and who nurtured him for nine months in her womb and thereafter even held him for more than three months, and consequently, her natural attachment to her own borne child, and her sentiments towards him, obviously cannot be undermined, once she is held to be legally entitled to his custody.

Therefore, it would be highly appreciated if respondent no.7, who, to repeat, obviously would have developed attachment to the child, ensures that the transition of the child from her custody to that of the petitioner is made absolutely ‘easy', with the child being firstly familarised with his natural mother again.

It would in fact be appropriate in the interest of the child if respondent no.7 hands over the child by first familiarising him with his natural mother.

 The needful be done over a period of two weeks.

 118. The petition is allowed as aforesaid, as regards the custody of the  child being handed over to the petitioner, even pending consideration of the legal question referred to the hon'ble Division Bench hereinabove, as would eventually be considered and adjudicated upon by their Lordships.