Naveen Jandial and another vs Child Welfare Committee

Ali Mohammad Magrey, J

Petitioners have filed the instant petition seeking quashment of order passed on 30.03.2019 by the Court of learned Principal District Judge, Jammu

in proceedings filed under section 9 (4) & (5) of Hindu Adoption and Maintenance Act for permission to adopt Hindu Infant female, namely, Gavya on

the grounds detailed out in the petition with a particular reference that the Trial Court has not considered the matter in tune with the law.

Petitioners filed application under Section 9 (4) and (5) of Hindu Adoption and Maintenance Act before the learned Principal District Judge, Jammu

for permission to adopt a Hindu female infant, namely, Gavya on the ground that they got married for 16 years ago and are financially sound and well

educated, therefore, have decided to adopt a female infant and for that purpose they approached the Child Welfare Committee Jammu and selected

an orphan female infant, which was in their care and custody. It is further stated that respondents after satisfying regarding the suitability and fitness

of the petitioners to take the responsibility of the security, care and custody of the infant, handed over the custody of the infant to the petitioners

initially for a period of three months on 19.11.2018 which was renewed thereafter from time to time and is still in their custody. The orders of custody

issued by the respondents on 19.11.2018 and 12.02.2019 are taken note of:

“ The order dated 19.11.2018 of the CWC is reproduced as under:

whereas an application of a couple Mr. Naving Jandial and Mrs. Ruchika jandial claiming to be fit person u/s 2(j) of J&K of JJ Act of 2013 has been

submitted before CWC Jammu by CDPU Jammu for the custody of a new born girl child. Whereas, the said child was born to an abandoned women

in SMGS, Hospital Jammu. Owing to the inability of the mother to take care of the infant, CWC, Jammu took the custody of the child and placed her

in SOS, Gole Gujral for short term stay. Subsequently, a few days later the lady died leaving the child orphaned. Whereas the said couple is married

for sixteen years and is childless and is willing to take the responsibility of bringing up the child. The couple has assured CWC of the safety, security

and a dignified life to the child. Whereas, CWC had personal interaction with the couple and also got home study report conducted through the DCPU

to the assess the fitness and suitability of the couple to take the responsibility of the child. Whereas per the documents submitted by DCPU the CWC

Jammu is of considered opinion that the couple is well placed socially and financially, as the husband is a respectable member of the society and is a

business man of repute and the mother is a teacher in a reputed private school. Whereas HSR done by DCPU Jammu is in favour of the couple.

After requisite enquiry from DCPU Jammu, CWC Jammu is reasonably satisfied that the interest of the child would be best secured if it is provided

with good caring atmosphere which the couple in question took appropriately placed to do so. Whereas CWC Jammu in deciding the beset interest of

the child is of considered opinion that the custody of the child should be handed over to the couple initially for a period of three (3) months to be

renewed thereafter upon the receipt of the satisfaction report from the DCPU. Whereas, DCPU Jammu is directed to submit the follow up report of

the child every month for 3 months from the date of receipt of this order. Whereas the couple is directed to open a recurring bank account in the name

of the child and to deposit minimum Rs. 3,000/- per month for the social security of the child, proof whereof shall be submitted to the CWC. Whereas

the couple is further directed to produce the child before CWC Jammu for three months.â€​

The order dated 12.02.2019 of the CWC is reproduced as under:

“Whereas the child Gavya whose interim custody was given to Mrs. And Mr. Navin Jandial initially for three months. Whereas, the couple has

opened a recurring account and is depositing Rs. 3000/- every month for the social security of the child. Whereas the couple produced the child before

CWC Jammu once every month as directed. Whereas as per the HSR submitted by Ms. Deepti Gupta social worker DCPU Jammu the guardian are

taking good care of the child and are catering to all basic needs of the child with love and affection. Considering the best interest of the child, CWC

Jammu is extending the interim order for another period of three months from 19.02.2019 to 19.05.2019.â€​

The learned Principal District Judge, Jammu while considering the petition of the petitioners for permission to adopt a Hindu female infant as

discussed in the provision of law and the stand taken by the parties in Paragraphs- 5 and 6 of the order. Both the paragraphs are being relevant are

taken note of :

“5. The question arising here for the consideration of this Court is whether the Child Welfare Committee has the capacity to give the child in

adoption to the applicants. The provisions of Section 9 of the Hindu Adoption and Maintenance Act deals with the persons capable of giving a child in

adoption. The provisions of sub section 4 deal with the persons who would be capable to giving the child in adoption in the absence of parents of the

child. Section 9(4) & (5) Hindu Adoption and Maintenance Act reads as under:

“9. Persons capable of giving in adoption

(1) Xxxxxxx

(2) Xxxxxxxxxx

(3) Xxxxxxxx

(4) Where both the father and mother are dead or have completely and finally renounced the world or have ceased to be Hindus or have been

declared by a Court of competent jurisdiction to be of unsound mind, the guardian of a child (whether a testamentary guardian or a guardian appointed

or declared by a Court) may give the child in adoption with the previous permission of the Court.

(6) Before granting permission to a guardian under sub-section (4), the Court shall be satisfied that the adoption will be for the welfare of the child,

due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant

for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or

reward in consideration of the adoption except such as the court may sanction.

Explanation---for the purpose of this section.----

(i) The expressions “fatherâ€​ and “motherâ€​ do not include an adoptive father and an adoptive mother; and

(ii) “Court means a District Court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.â€​

The non-applicant, Child Welfare Committee, would be competent to give the child in adoption only if it would show that it is the guardian of the

child either by a testament or by appointment or declaration by a Court. The applicants and non-applicant Child Welfare Committee was made the

guardian of the child by any testament or that any Court has appointed or declared it as guardian of the child.â€​

Learned counsel for the petitioner while strengthened arguments for the claim made in the petition referred to and relied upon the judgment of this

Court rendered in OWP No. 610/2009 titled Anurag Priyadarshi Vs. State of J&K and ors. on 30.10.2009 and reported as 2010 (2) JKJ 53. The

judgment is distinguishable as the same is not meeting the facts of the instant case, the principle laid down in the judgment has no application as Child

Welfare Committee have no authority to pass orders of adoption.

On the touch stone of the applicability of the provision of the law to the Child Welfare Committee the Trial Court has come to a definite stand on

valued consideration that the petitioners are not entitled for such permission as the Child Welfare Committee has no authority to give the child in

adoption to the petitioners.

Court is satisfied with the analytic discussion made by the Trial Court with the supportive material and the law on the subject, therefore, the writ

petition is without any merit and deserves to be dismissed on the above grounds. The writ petition shall stand dismissed in limine, however, without

cost.