IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 Mat.Appeal.No. 1012 of 2009() ----------------------------- OPHMA.104/2009 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... APPELLANT/PETITIONER: ------------------------ SUNILKUMAR, S/O.SADASIVAN, AGED 37 YEARS, RESIDING AT ANIL BHAVAN, ARASSU PARAMBU, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.RAJIT SRI.RANJIT BABU SRI.LOWEL CHERIAN SRI.P.ANOOP (MULAVANA) SMT.K.R.REMYA (KARUKAYIL) RESPONDENT(S): COUNTER PETITIONER --------------------------------- 1. ANILA.V, D/O.VASANTHY, AGED 32 YEARS, RESIDING AT MANAKKATTUVILAKOM, VADAKKUMBHAGAM, KAZHAKKOOTTAM, THIRUVANANTHAPURAM. 2. VASANTHY, D/O.MADHAVI, AGED 49 YEARS, RESIDING AT MANAKKATTUVILAKOM, VADAKKUMBHAGAM, KAZHAKKOOTTAM, THIRUVANANTHAPURAM. 3. MANOJ, S/O.RAVEENDRAN NAIR, AGED 35 YEARS, RESIDING AT MANAKKATTUVILAKOM, VADAKKUMBHAGAM, KAZHAKKOOTTAM, THIRUVANANTHAPURAM. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON 01/06/2010 PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.No. 1012 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2010 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner in O.P.(HAMA) No. 104 of 2009 on the file of the Additional District Court-II, Trivandrum. Respondents 1 to 3 herein are respondents 1 to 3 in that O.P., which was filed under Section 9 of the Hindu Adoption and Maintenance Act, 1956 in respect of the minor child named Akshaya, who was born on 15.4.1998. 2. Briefly the facts of the case are as follows. The first petitioner and the first respondent are husband and wife. They got married on 30.3.2009 and the marriage was registered under the provisions of the Special Marriage Act and Ext.A3certificate was issued evidencing the marriage between them. Mat.A.No. 1012 of 2009 2 3. The minor child, Akshaya, was born on 15.4.1998 to the first respondent before her marriage with the petitioner. Akshaya was an illegitimate child in the relationship between the first respondent and the third respondent. The birth of the child was registered and the name of the father and name of the mother were shown as that of the third respondent and the first respondent respectively. 4. The appellant married the first respondent fully aware of the unfortunate circumstances in which the minor child was born and with full knowledge and responsibility. The third respondent has not bothered to look after the first respondent or the minor child after impregnating the first respondent. 5. The appellant married the first respondent in order to be a loving husband as well as a loving and caring father to the minor child. After marriage, the appellant, the first respondent and the minor child were living in a harmonious manner. The appellant is working as a draftsman in Bhabha Atomic Research Center, Mumbai and drawing Mat.A.No. 1012 of 2009 3 a salary of Rs.20,000/- p.m. Therefore he has the means and capacity to look after the child. 6. The appellant wanted the minor child to lead a normal life without the thought of illegitimacy. He also wanted the minor child to succeed to his estate so that the minor child would get all the rights as that of a child born to him. The first respondent, the mother of the minor child, has no objection in the appellant adopting the child born out of the illegitimate relationship between the first respondent and the third respondent. In these circumstances the appellant filed the above O.P. (HAMA) No. 104 of 2009 seeking permission to adopt the minor child. 7. In the court below respondents 1 and 2 appeared and they have no objection in allowing the petition. The third respondent accepted notice, but remained ex parte. The petitioner himself was examined as PW1 and Exts.A1 to A3 were marked. Respondents 1 and 2 were examined as RW1 and 2. The court below, after considering the matter, dismissed that petition on the ground that in Mat.A.No. 1012 of 2009 4 view of the specific bar under Section 9(2) of the Hindu Adoption and Maintenance Act if the father is alive only he has the right to give the child in adoption. Against that order the petitioner filed this appeal. 8. Heard the learned counsel for the appellant. The learned counsel submits that the court below has correctly found that the third respondent is not interested in the affairs or welfare of the minor child and the appellant's request for adoption of the minor child is bonafide. The learned counsel for the appellant further submitted that the court below ought to have granted permission to the appellant to adopt the child as the first respondent mother had given consent to adopt the child by the appellant and that the third respondent has given implied consent by remaining ex parte in the trial court proceedings. 9. The learned counsel for the appellant invited our attention to the decision in Nago & ors. v. Sukya & anr. (AIR 1953 Nagpur 239), wherein it was held that: “There is no absolute bar against the wife to give away her son in adoption without obtaining the Mat.A.No. 1012 of 2009 5 consent of the husband who is alive. She can do so if the circumstances are such when it is not possible for her to obtain the consent. The circumstances mentioned in the text are only illustrative. Each case has, therefore, to be judged on its own merits in the light of the circumstances appearing in it.” 10. In the decision reported in Raja Makund Deb v. Sri Jagannath Jenamoni (AIR 1923 Patna 423) it was held that it is well settled that a mother may give her son in adoption even without her husband's express consent in cases where such consent cannot be obtained. 11. In the present case, admittedly the minor Akshaya is an illegitimate child of the first respondent and the third respondent and there is also no dispute that the appellant/petitioner married the first respondent with the knowledge of this fact and the first respondent has given her consent to the appellant to adopt her child. The third respondent has not raised any objection in adopting the child by the petitioner. Mat.A.No. 1012 of 2009 6 12. Section 9 of the Hindu Adoption and Maintenance Act reads as follows: “9. Persons capable of giving in adoption. (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption. (2) Subject to the provisions of sub-section (3) and sub-section (4) the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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. (3) The mother may give the child in adoption if the father 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. Mat.A.No. 1012 of 2009 7 (4) Where both the father and mother are dead or have completely and finally renounced the world 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. (5) 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 santion. Explanation: For the purposes of this section - Mat.A.No. 1012 of 2009 8 (i) the expression “father” and “mother” do not include an adoptive child or of both his persona nd property and includes - (a) “guardian” means a person having the care of the person of a child or of both his person and property and includes - (a) a guardian appointed by the will of the child's father or mother and (b) a guardian appointed or declared by a court: and (ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.....” 13. In Mayne's Hindu Law and Usage, 16th Edition at page 587 it is stated thus: “The mother of an illegitimate child can give the child in adoption without the consent of her paramour to whom the child was born.” Mat.A.No. 1012 of 2009 9 In the present case, the minor child is an illegitimate child of the first respondent and she has given her express consent to her husband to adopt the illegitimate child. In the facts and circumstances of the case, we are of the view that express consent of the third respondent is not required for adopting the child by the petitioner. Now the child is in the custody of the first respondent, who is the legally wedded wife of the petitioner and the petitioner has the capacity to maintain the child and the first respondent. If the minor is given in adoption to the petitioner, the minor will grow up in congenial home atmosphere as good citizen and we are satisfied that the adoption will be for the welfare of the child. Therefore, we are of the view that the court below is not justified in dismissing the petition. 14. Accordingly this appeal is allowed and the order dismissing O.P. (HAMA) 104 of 2009 on the file of the Additional District Court-II, Trivandrum is set aside and that petition is allowed. Mat.A.No. 1012 of 2009 10 Permission is granted to the appellant/petitioner to adopt the minor child, Akshaya. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm