@JUDGMENTTAG-ORDER
1. Challenge in this Civil Revision Petition is to the order dated 07.09.2011 passed in A.O.P No.13 of 2011 by the Principal District Court, Dindigul. The revision petitioners as petitioners have filed A.O.P No.13 of 2011 on the file of the Court below praying to permit them to adopt the child by name Srinidhi, wherein the present respondents have been shown as respondents.
2. The Court below after considering the contentions put forth on the side of the revision petitioners has given a specific finding to the effect that the petitioners cannot be treated as guardians of the child in question and therefore they have no locus standi to file the present petition and ultimately dismissed the same. Against the dismissal order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the petitioners as revision petitioners.
3. Since the respondents herein have remained ex parte in A.O.P.No.13 of 2011 and since the Court below has dismissed the petition simply on technical ground, this Court is of the view that notice need not be sent to the respondents and this Civil Revision Petition can be disposed of on the basis of the contentions put forth on the side of the revision petitioners.
4. The learned counsel appearing for the revision petitioners has contended that the revision petitioners/petitioners have desired to adopt an orphan child and in the month of November 2007 they visited the first respondent''s hospital and registered their names for taking a female child in adoption and after some time, they have been informed by the Authorities of the first respondent that a female child, born on 25.09.2009, has been abandoned by her parents and if the petitioners desired they can bring up the child and adopt the same. The petitioners have agreed and on 14.09.2010 the Superintendent of the first respondent has handed over the child temporarily to the petitioners and since then the child in question is under the care and custody of the petitioners. Under the said circumstances the present petition has been filed for getting the relief sought for therein. But the Court below without considering the status of the petitioners has erroneously found that the petitioners are the foster parents and not guardians of the child in question and consequently dismissed the petition and therefore, the order passed by the Court below is liable to be set aside.
5. Before perpending the submissions made on the side of the revision petitioners it would be condign to look into the provision of sections 5, 7 and 9(4) (5) of the Hindu Adoptions and Maintenance Act, 1956. Section 5 of the said Act reads as follows:
Adoptions to be regulated by this Chapter.-(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
6. Section 7 of the said Act reads as follows:
Capacity of a male Hindu to take in adoption.-Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.
7. From the conjoint reading of the said provisions, it is easily discernible that every adoption should be made in accordance with the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956 and if any adoption is made in contravention of the relevant provisions of the said Act, the same is nothing but void and further a male Hindu can adopt a son or daughter with the consent of his wife.
8. The present petition has been filed u/s 9 (4) of the Hindu Adoptions and Maintenance Act, 1956. From the averments made in the petition, the Court can easily find out that the child by name Srinidhi is now under the care and custody of the petitioners. Further the parents of the child in question have abruptly left her in the hospital of the first respondent.
9. At this juncture, provision of section 9 (4) of the said Act has to be looked into and the same reads as follows:
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 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.
10. Section 9 (5) (ia) reads as follows:
Guardian means a person having the care of the person of a child or of both his person and property.
11. In the instant case, it has already been narrated that the first respondent has handed over the child in question to the petitioners on 14.09.2010 and since then the child in question is under the care and custody of the petitioners. Therefore, as per section 9 (5) (ia) of the said Act, the Court can very well come to a conclusion that the petitioners are the guardians of the child in question.
12. Section 9 (5) of the said Act reads as follows:
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 give 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.
13. From the cumulative reading of the provisions mentioned supra, the guardian himself can have adoption with the permission of the Court. In granting permission u/s 9 (4) of the said Act, the Court must satisfy with regard to welfare of the child in question and further ''guardian'' means the person who is having care and custody of the child.
14. In the instant case as pointed out earlier, the child in question is now under the care and custody of the petitioners. Under the said circumstances, the petitioners themselves can seek permission to adopt the child. The Court below has dismissed the petition simply on the ground that the petitioners are not the guardians of the child in question and at the most they can be treated as foster parents of the same. In fact, the Court below without considering the status of the child in question and also without considering its care and custody, has erroneously given a finding to the effect mentioned supra.
15. Considering the fact that the parents of the child in question have abruptly left her and the child in question has been handed over to the care and custody of the petitioners and subsequently christened her as Srinidhi, this Court is of the view that the petitioners can be given permission to take adoption of the child in question. Therefore, viewing from any angle the impugned order passed by the Court below is totally erroneous and the same is liable to be set aside. In fine, this Civil Revision Petition is allowed without cost at the stage of admission and the order passed in A.O.P No. 13 of 2011 by the Principal District Court, Dindigul is set aside and the petition filed in A.O.P.No.13 of 2011 is allowed without cost.
