IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE:
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.11824/2016 [GM-RES] BETWEEN:
1. D. JAYA PRAKASH RAO, AGE 52 YEARS, S/O. JANARDHANAIAH, 2. SMT. SHASHIKALA, W/O. D. JAYA PRAKASH, AGE 50 YEARS, BOTH ARE RESIDENTS OF BAIRIKATTE HOUSE, P.O. KANYANA, KANYANA VILLAGE, BANTWAL TALUK-574 243.
DK DISTRICT. …PETITIONERS [BY SMT. SUMANA BALIGA M., ADVOCATE] AND:
1. STATE OF KARNATAKA, REP. BY ITS SECRETARY FOR WOMEN AND CHILD WELFARE DEPARTMENT, M.S. BUILDING, BANGALORE-560 001.
2. CHILD WELFARE COMMITTEE, REP. BY ITS SECRETARY, KRISHNA NAGAR, BONDEL, MANGALORE-575 008.
3. SRI. RAMAKRISHAN SEVA SAMAJA, REP. BY ITS MANAGER FOR VATSALYA DHAMA MAKKALA DATTU KENDRA, PUTTUR-574 202.
SOUTH KANARA.
4. MAMATHA, AGED ABOUT 25 YEARS, C/O. CHANDRAHASA, HOUSE NO.441, 3RD BLOCK, KATIPALLA, MANGALORE, DK-575 015.
5. SOMANATH, AGED 36 YEARS, S/O. KUNHANNA NAIKA, RESIDING AT KALLAMUTLU MANE, NEAR WATER PUMP HOUSE, SULLIA, DK-574 239. ... RESPONDENTS [ BY SRI. C.N. MAHADESHWARAM, AGA FOR R1 AND R2; R3 AND R4 ARE SERVED AND UNREPRESENTED, NOTICE TO R5 IS HELD SUFFICENT VIDE COURT ORDER DATED 23.01.2018] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 04.06.2015 PASSED IN MISC. CASE NO.4/2014 VIDE ANNX-G ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard. Issue rule.
2. Though the matter is listed in ‘B-Group’, with the consent of both the learned counsel, it is taken up for final hearing.
3. The case of the petitioners in brief is that;
4. The petitioners being unable to have their own children sought to adopt a child and hence they registered themselves with the 3rd respondent for such adoption. The process followed thereafter is not in dispute. It would suffice to say that the entire procedure prescribed had been followed and final journey in the adoption process being an order to be passed by the District Court under Section 9(4) of the Hindu Adoptions and Maintenance Act r/w. Section 41 of Juvenile Justice [Care and Protection] Act, 2000, towards which Miscellaneous Case No.4/2014 was filed by the petitioners herein before the Court of V Additional District and Sessions Judge, D.K., Mangaluru, sitting at Puttur, D.K.
5. During the pendency of the said proceedings, respondent No.2- Sri. Somnath, S/o. Sri. Kunhanna Naika, claiming to be the biological father of the child to be adopted objected to the further proceedings in the matter and had indicated that he had not consented to the child being put up for adoption and that he was interested in having custody of his child.
6. Sri. Somnath had also filed an application-I.A. No.3 under Order 7 Rule 11 of CPC seeking for the dismissal of the said miscellaneous case contending that he being the biological father, without his consent and without him having surrendered the child, the child could not have been put up for adoption.
7. Considering I.A. No.3 filed by Mr. Somnath, the District Court allowed the application filed by him under Order 7 Rule 11 of CPC and as a consequence there of dismissed the petition filed by the petitioners herein under Section 9(4) of the Hindu Adoptions and Maintenance Act r/w. Section 41 of the Juvenile Justice [Care and Protection] Act, 2000 on the ground that the proceedings which had been initiated under Section 9(4) of the Hindu Adoptions and Maintenance Act without the consent of the biological father of the child was misconceived and without jurisdiction.
8. Subsequent thereto, in the proceedings held before the 2nd respondent-Child Welfare Committee on 18.11.2015, the biological mother had informed the Committee that Mr. Somnath was not the biological father and she had also stated that the child and herself could be subjected to DNA testing which would establish that Mr. Somnath was not the biological father. On such submission been made by the biological mother, Mr. Somnath and his mother withdrew their objections to the adoption process accepting the statement of the biological mother that Mr. Somnath was not the biological father of the child.
9. Taking note of these facts, the 2nd respondent-Child Welfare Committee concluded that the child was again free for adoption and the process for adoption has to be again re-started and therefore, passed an order on 18.11.2015 to re-notify the child as free for adoption and to start the process afresh.
10. It is aggrieved by this order, the petitioners are before this Court contending that the process for adoption in their favour had neared completion and in the event of the District Court having passed an Order under Section 9(4) of the Hindu Adoptions and Maintenance Act r/w. Section 41 of the Juvenile Justice [Care and Protection] Act, 2000, the adoption would have been completed shortly thereafter by fulfilling the balance formalities.
11. Ms. Baliga on behalf of the Petitioners also submitted that the child already being in the care of the Petitioners, it would be in the interest of the child that the proceedings be continued from the stage that it got derailed on account of Mr. Somnath’s intervention.
12. The petitioners, therefore, have sought for a writ of certiorari to quash the Order dated 04.06.2015 passed on I.A. No.3 by the District Court in Miscellaneous Case No.4/2014 and as a consequence, issue a writ of mandamus directing the 2nd and 3rd respondents to re- open the proceedings and permit them to adopt the child.
13. 1st and 2nd Respondents have appeared, and objections on their behalf have been filed. 1st and 2nd Respondents have fairly accepted and conceded the facts stated by the petitioners. However, they have expressed their helplessness in view of the Order dated 04.06.2015 passed in Miscellaneous Case No.4/2014 which would require them to re-initiate the adoption process.
14. In the above circumstances this court is of the opinion that the appropriate course would be to set aside the Order dated 04.06.2015 passed on I.A. No.3 in Miscellaneous Case No.4/2014 and permit the petitioners to file an application seeking to re-open the said case and proceed with disposal thereof as if Mr. Somnath had not filed any application or intervened.
15. Learned Additional Government Advocate in this regard submits that 1st and 2nd respondents would have no objections for the same and in fact, in the interest of the child, they would support the case of the petitioners to go forward with the case from that stage, this submission made by the Learned Additional Government Advocate would answer the requirements of the petitioners.
16. The learned Additional Government Advocate further submits that process and procedure for adoption as it existed when Miscellaneous Case No.4/2014 was filed, and the process at present has changed. At present online procedure has been implemented and therefore, this system would have to be followed by the petitioners. This Court is unable to accept the said submission in view of the fact that once Miscellaneous Case No.4/2014 is re-opened, the law as it stood as on the date of filing of the said miscellaneous case would apply and the process and procedure for consideration of the said miscellaneous case as also the application of the petitioners for adoption is as per the system then in existence which would be so followed by the District Court.
17. The petitioners have also sought for a direction that the respondents should not disturb the custody of the child that they have enjoyed on account of the child having been in the custody of the petitioners from as for back as 31.10.2013. There is considerable force in such a submission, it would be inhuman to disturb the child who has been in the custody of the petitioners for a little over six years now. Accepting the said submission, until the disposal of Miscellaneous Case No.4/2014, the respondents are directed not to disturb the custody of the child with the petitioners.
18. In view of the fact that the matter relates to the adoption of a child who is fast-growing. The trial Court is directed to dispose of the matter within six months from the date of receipt of a certified copy of this order.
This writ petition is accordingly disposed of.
Sd/- JUDGE Ksm*