IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15374 of 2008 ====================================================== Suresh Kumar Sharma, son of Shri sitaram Sharma, resident of mohalla East Gumti (Lock No. 11), Police Station Ara Nawada, District Bhojpur .... .... Petitioner/s Versus 1. The State Of Bihar through the Collector, Bhojpur, Ara 2. The Registrar, Civil Court, Bhojpur, Ara 3. Ranjeet Sharma, son of Late Kamla Kanta Sharma 4. Panchmi Sharma, wife of Ranjeet Sharma, 3 and 4 are resident of Nizarapar, Chamdmari Colony, House No. 248, Police Station Chanmari, District Kamrup Metro, Guwahati, Assam .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Anish Chandra Sinha For the Respondent/s : Mr. (Gp13) ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) 6 27-09-2011 Heard Counsel for the petitioner, the private respondents and the State. The petitioner is the person who got an abandoned baby child in his home and has looked after her ever since. The respondents 3 and 4 are the persons who want to adopt the girl, namely, Mansi Sharma. The Court below has rejected the prayer made on behalf of the petitioner and the respondents 3 and 4 on the ground that the petitioner is not the legal guardian of Mansi Sharma. The facts are that the petitioner in the morning of 29th March, 2004 heard the cry of a baby near the railway line. Patna High Court CWJC No.15374 of 2008 (6) dt.27-09-2011 2 / 7 2 He picked up the child and took her to his home. Since then, nobody has claimed the child (Mansi Sharma) and she remained with the petitioner and he brought her up as with love and affection. The petitioner has two sons of his own. He was approached by his friend and his wife, respondents 3 and 4, who have no child, to give up Mansi Sharma in adoption in their favour. Accordingly, the petitioner filed Guardianship Case No. 4 of 2004 before the Additional District Judge, Fast Track Court No. II, Ara. The question involved in this case is whether the petitioner can be treated as the natural guardian of Mansi Sharma? To decide the issue, this Court will refer to the provisions of sub-section (4) of Section 9 of the Hindu Adoption and Maintenance Act, 1956, which reads as follows:- “(4) Where both the father and mother are dead or have completely and finally renounced the word or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.” Patna High Court CWJC No.15374 of 2008 (6) dt.27-09-2011 3 / 7 3 While interpreting this section, the Court below has referred to Section 11 of the Hindu Minority and Guardianship Act, 1956. Section 11 of the Hindu Minority and Guardianship Act, 1956 reads as follows:- “ 11. De facto guardian not to deal with minor’s property.- After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.” Considering the provisions of this section, the Court below has held that since the petitioner is only a de facto guardian, he cannot deal with the property of the child and as such, he also cannot have the right to deal with the „person‟ of the minor female child. This view, in my opinion, is completely misconceived. The scope of sub-section 4 of Section 9 of the Hindu Adoption and Maintenance Act, 1956 is quite different to that of the Hindu Minority and Guardianship Act, 1956. The Hindu Adoption and Maintenance Act deals with two subject, viz. adoption and maintenance. The Act is for the purpose of implementing the law in relation to the adoption and maintenance amongst Hindus and the scope of sub-section 4 of Section 9 has been explained when it was amended in the Patna High Court CWJC No.15374 of 2008 (6) dt.27-09-2011 4 / 7 4 year 1962. The amendment of sub-section 4 of Section has been redrafted so that the circumstances in which a guardian can give a child in adoption are expressly laid down. It has been provided that the guardian of the child may give in adoption only with previous permission of the Court. Sub-section 5 of Section 9 of the Hindu Adoption and Maintenance Act provides that while granting the permission, the Court should be satisfied about the welfare of the child. Under the Hindu Adoption and Maintenance Act, 1956, the guardian of a child has been given the power to give the child in adoption, with the previous permission of the Court, this power can only be exercised by a testamentary guardian or a guardian appointed or declared by the Court specified under Section 9(4) of the Act. A person having care and custody of a child has further no power to give the child in an adoption although for all practical purposes, he is the guardian of the child. Therefore, there is no provision in the earlier Act authorizing adoption of a child abandoned by parents or of a child whose parentage is not known. Children are often abandoned because of fear or social stigma, or for reasons of poverty or for any other reasons. If these children can be given in adoption, they may grow up in a healthy and good atmosphere and turn out to be a good Patna High Court CWJC No.15374 of 2008 (6) dt.27-09-2011 5 / 7 5 citizen. These abandoned children often find themselves in children institution and homes. The Manager of such homes or the Institution having the care of such children are for all purposes guardian and therefore, there appears to be no reason why he should not have the power to give the child in adoption with the previous permission of the Court, like the testamentary guardian or the guardian appointed and declared by the Court. “It is, therefore, considered that these lacunae should be removed by suitable amended Section 9 (4) of the Act so as to bring a person having the care and custody of the child within the meaning of guardian” (Gazette of India 1962 Part II Section 2, Extra Page 475). Coming back, if this be the position and interpretation and the reasons for changes in Section 9 (4), then this Court would naturally hold that the petitioner would be a guardian. Even if the Court below was to take a narrow view of the entire matter, he should have first appointed the petitioner as a guardian and thereafter if respondents 3 and 4 wished to take the child in adoption and if the Court was satisfied that the adoption was for the welfare and benefit of the child, the Court below should have given the child in adoption to respondents 3 and 4. The purpose of adoption of abandoned child is to give Patna High Court CWJC No.15374 of 2008 (6) dt.27-09-2011 6 / 7 6 him/her a good home, good parents, good future and enrich the personality and character of the child, who has been left in the lurch by his/her parents. This should be kept in mind by the Courts below while considering the question of adoption. I, therefore, quash the order dated 29.03.2008 passed in Guardianship Case No. 04 of 2004 and direct the petitioner and the respondents 3 and 4 to approach the Additional District Judge, Fast Track Court No. II, Ara. The Court below is directed to take into consideration the fact that the petitioner is for all purposes the guardian of the child as he has care for the child for the last seven years with selfless devotion. If the friend of the petitioner and his wife have valid reasons, having no children of the their own, wish to adopt Mansi Sharma, the Court below after being satisfied that it is for the welfare of the child, allow the adoption. The petitioner and respondents 3 and 4 are directed to produce a copy of this order before the Additional District Judge, Fast Track Court No. II, Ara within a period of one month from the date of receipt of a copy of this order. Both the parties are directed to appear before the Court below and the Court below should hear them and pass Patna High Court CWJC No.15374 of 2008 (6) dt.27-09-2011 7 / 7 7 appropriate orders within the shortest possible time preferably within a period of three months from the date of receipt/production of a copy of this order after seeking for a report from the concerned Police Station as to whether respondents 3 and 4 are involved in any criminal activities. This writ application is allowed to the extent indicated aforesaid. Prabhakar Anand/- (Sheema Ali Khan, J)