Allowed

Mr Arinjoy Ghosh v. Nil

Karnataka HC6 Dec 2021CRP/348/2021

Case brief

AI extract

What is this about?

High Court allowed a revision petition against a civil revision order rejecting parents' adoption petition. Court held prospective parents were eligible despite having a biological child, correcting trial court's procedural oversight regarding affidavits and income evidence.

What did the court decide?

Impugned order dated 19.04.2021 set aside; petitioners allowed to adopt child named Archita Ghosh.

Mr Arinjoy Ghosh Vs Nil — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.348 OF 2021

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BETWEEN:

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1 . MR ARINJOY GHOSH S/O BISWAJIT GHOSH, AGED ABOUT 48 YEARS, R/AT FLAT AB3, BLOCK 2 MERIDIAN APARTMENTS, 1 A CROSS S R LAYOUT, MURGESHPALYA, BANGALORE-560 017.

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2 . MRS CHIRASREE GHOSH W/O ARINJOY GHOSH, AGED ABOUT 47 YEARS, R/AT FLAT AB3, BLOCK 2, MERIDIAN APARTMENTS, I A CROSS, S R LAYOUT, MURUGESHPALYA, BANGALORE-560017.

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3 . SHISHU MANDIR K R PURAM, BANGALORE-560036 REP.BY ITS SOCIAL WORKER, MR. FRANCIS S J ITS REPRESENTATIVE BY AUTHORISED SIGNATURE.

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...PETITIONERS

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(BY SRI.JAYNA KOTHARI, SR. ADV. FOR SRI. ROHAN KOTHARI, ADV. AND SRI/ NAVEEN CHANDRA V., ADV.)

AND:

NIL …RESPONDENT

THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 102 OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT., 2015 AGAINST THE ORDER DATED 19.04.2021 PASSED IN MIS.P.NO. 25025/2020 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, MAYO HALL UNIT, BENGALURU, REJECTING THE PETITION FILED UNDER SEC.61 OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILD) ACT., 2015 BY THE PETITIONERS.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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An Order dated 19.04.2021 passed by the XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH-22) (henceforth referred to as 'Trial Court' for short) rejecting Misc. Petition No.25025/2020 filed under Section 61 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "JJ Act" for short) is challenged by the prospective parents in this revision petition under Section 102 of the JJ Act.

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The petitioners desired to adopt a child and therefore, approached the petitioner No.3 and submitted

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an application with all the information as prescribed. The petitioner No.3, after verification of the documents, found that the petitioner Nos.1 and 2 were suitable to adopt a child aged about 10 years, after the child was declared legally free for adoption. It is claimed that the petitioner No.1 is a Software Development Professional who was employed as Director at M/s Oracle and then at Digital Intelligence Systems LLC (DISYS) and is currently employed with Tech Mahindra. Petitioner No.1 claimed that his monthly pay package would be 13,600/- US Dollars. The petitioner No.2 is a home maker and is residing at an apartment owned by her family. It is claimed that petitioner No.3, after verifying credentials of the petitioner Nos.1 and 2, found that they were suitable to take a child in adoption and therefore, submitted no objection to take the child named Archita Ghosh in adoption.

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In order to ensure the welfare of the child to be

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adopted, a petition was filed under Section 61 of the JJ Act

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before the District Court. The petitioner No.1 was examined as P.W.1 and he marked documents as Exs.P.1 to 7. Petitioner No.2 was examined as P.W.2, who marked documents as Exs.P.8 and 9. A Social Worker from petitioner No.3 was examined as P.W.3 and he marked documents as Exs.P.10 to 13. The District Court considered the oral and documentary evidence and felt it appropriate to reject the petition due to the following reasons:

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(i) While the petitioner No.1 disclosed in his affidavit that they had a son by name Aditya, the petitioner No.2 deposed that despite medical treatments, she could not conceive and become pregnant and hence, she decided to adopt. Hence, there was an apparent mismatch between the claims by the prospective parents.

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(ii) The petitioner No.1 had failed to furnish his salary certificate showing his monthly income at US $13,600/-.

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Being aggrieved by the aforesaid order, the prospective parents have filed this revision petition contending as follows;

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That the petitioner Nos.1 and 2 had a child and that they intended to adopt another child and that the statement made by P.W.2 in her chief-examination was a mistake, which was explained by an affidavit filed on the same day, which was followed by another affidavit filed on 08.03.2021 indicating why the first affidavit had to be explained. It is also submitted that the salary certificate or the income certificate of the petitioner No.1 was marked as Ex.P.4 and the Court did not consider the same.

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Since this Court expressed doubt about the right of the petitioners to take the child in adoption, when they already have a biological child, this Court requested the learned Assistant Solicitor General, Government of India to assist. The Assistant Solicitor General brought to the notice of the Court the regulations framed under the JJ Act

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named the adoption regulations of 2017, which reads as follows;

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"5. Eligibility criteria for prospective adoptive parents.-

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(1) The prospective adoptive parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life threatening medical condition.

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(2) Any prospective adoptive parents, irrespective of his marital status and whether or not he has biological son or daughter, can adopt a child subject to following, namely:-

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(a) the consent of both the spouses for the adoption shall be required, in case of a married couple;

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(b) a single female can adopt a child of any gender;

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(3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship.

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(4) The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under:-

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Age of the child	Maximum composite age of prospective adoptive parents (couple)	Maximum age of single prospective adoptive parent
Upto 4 years	90 years	45 years
Above 4 and upto 8 years	^{100 years}	50 years
Above 8 and upto 18 years	110 years	55 years

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(5) In case of couple, the composite age

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of the prospective adoptive parents shall be counted.

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(6) The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.

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(7) The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.

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(8) Couples with three or more children shall not be considered for adoption except in case of special need children as defined in sub-regulation (21) of regulation 2, hard to place children as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent."

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Learned Assistant Solicitor General submitted that there is no bar for the petitioner Nos.1 and 2 to adopt a child. The assistance rendered is deeply appreciated and it is held that the petitioners are entitled to adopt a child, notwithstanding the fact that already have a biological child.

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It is seen from the records that the petitioner Nos.1 and 2 had disclosed in clear terms that they had a child and they intended to adopt another child. The evidence of PW2 that she did not have a child of her own is definitely a mistake, which she attempted to correct on the same day by filing another affidavit, followed by yet another affidavit explaining the reason why two affidavits

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had to be filed. The Trial Court has not considered the same in the right perspective. The Trial Court has also not considered the document Ex.P.4, which indicates that the petitioner No.1 was employed as a Software Development Director at M/s Oracle and that he was paid 85 US dollars per hour and he was employed as a full time employee.

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Taking into consideration the above said facts, there is no prohibition for the petitioner Nos.1 and 2 from adopting the child in question and therefore, the impugned order passed by the Trial Court is liable to be set-aside.

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Therefore, this Civil Revision Petition is allowed and the order dated 19.04.2021 passed by the Trial Court in Misc. Petition No.25025/2020 is set-aside.

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The petitioner Nos.1 and 2 are entitled to adopt the child named "Archita Ghosh". However, it is made clear that the petitioner Nos.1 and 2 shall comply with all the requirements as prescribed under the Adoption

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Regulations, 2017 including Regulation No.13 relating to the follow up progress of the adopted child.

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The petitioner Nos.1 and 2 shall inform the petitioner No.3, in case the petitioner Nos.1 and 2 intend to apply for passport of the child and before taking the child outside India.

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Sd/JUDGE

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NBM

Mr Arinjoy Ghosh v. Nil

Case brief

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Mr Arinjoy Ghosh v. Nil

Case brief

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