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Coverage of this Article

1. Nesar Ahmed Khan vs State of Orissa & Others in WPCRL No. 160 of 2021
2. Child Welfare Committee (CWC)
3. Central Adoption Resource Agency (CARA)
4. Section 3 of the Muslim Personal Law (Shariat Act), 1937.

While leaving not even a scintilla of doubt to linger in the mind of anyone, the Orissa High Court has in a most learned, laudable, landmark and latest judgment titled Nesar Ahmed Khan vs State of Orissa & Others in WPCRL No. 160 of 2021 and cited in 2023 LiveLaw (Ori) 63 in the matter of an application under Article 226 of the Constitution pronounced recently on April 3, 2023 has clarified in no uncertain terms that Muslims cannot seek adoption of minor children under their personal laws and they must strictly follow the prescriptions laid down under the Juvenile Justice (Care and Protection of Children) Act ('JJ Act') to undertake any such adoption. We must note that while passing the order for restoration of custody of a minor girl with her father from the couple who claimed to have adopted the child, the Division Bench of Hon'ble Mr Justice S Talapatra and Hon'ble Miss Justice Savitri Ratho observed that, "True it is that a Muslim can adopt a surrendered child but they have to follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder, but not at their whim. So generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection. As such, we hold that the claim of adoption is unsustainable in law." The petitioner had filed this writ petition seeking restoration of custody of his minor daughter. We see that the Court while deciding clearly in favour of the petitioner ordered the opposite parties to hand over the custody of the child to the petitioner by the end of June this year failing which the Registrar (Judicial) of the Orissa High Court was directed to issue the writ of habeas corpus by the force of this judicial order to restore custody of the child with her father.

At the very outset, this recent, robust, remarkable and rational judgment authored by Hon'ble Mr Justice S Talapatra for the Division Bench of Orissa High Court at Cuttack comprising of himself and Hon'ble Miss Justice Savitri Ratho sets the ball in motion by first and foremost putting forth in para 1 that, "By means of this writ petition, the custody of the minor namely Sumaiya Khanam has been sought to be restored in favour of the petitioner who is the natural guardian being the minor's father. It has been stated that the minor who is aged about 12 years has been forcibly confined and illegally detained by the Opposite Parties No.6 to 11 since the year, 2015. However, it is admitted that the Opposite Parties No.6 to 11 are the sister of the petitioner and her daughter and son in law. It has been categorically submitted that the petitioner has been denied to meet his daughter despite series of attempts made by him."

As we see, the Division Bench points out in para 2 that, "The petitioner had reported the matter to the concerned police station as well as to the Child Welfare Committee (CWC) but no positive action has surfaced from those authorities. In these perspective facts, the petitioner has approached this court urging for issuance of a writ of habeas corpus, directing the Opposite Parties No.1 to 5 to produce the minor in the court and restore the custody of the minor to the petitioner."

As it turned out, the Bench then discloses in para 3 that, "The petitioner had approached the Plantsite police station on 12.09.2015 for "removal of his minor daughter". As the police did not take any action, the petitioner filed a complaint in the court of the Sub Divisional Judicial Magistrate, Rourkela being I.C.C. case No.765 of 2015."

To put things in perspective, the Bench envisages in para 4 that, "Pursuant to the said complaint, the police was directed to register a specific case and to take up the investigation. Accordingly, the Plantsite police station registered a case under Section 363/34 of the IPC being Plantsite PS case No.401 of 2015 (corresponding to G.R Case No.2776 of 2015). In addition, the petitioner made a representation to the Chairperson, Child Welfare Committee, Sundargarh (Annexure-3 to the writ petition) on 25.03.2016. After the case was registered, all the Opposite Parties obtained bail. In the course of investigation, the investigating officer filed an application before the Sub Divisional Judicial Magistrate, Rourkela for issuance of search warrant under Section 94 of the Cr.P.C as the investigating officer came to know that the minor child is in the custody of the Opposite Party No.6 namely, Shahnaz Khanam. It has been also reported by the investigating officer that the Opposite Party No.6 has illegally confined the minor in Phulwari Sharif at Patna. A search warrant was issued on 22.08.2016 but when the investigating officer visited that place, he found that the door was locked."

As things stand, the Bench observes in para 5 that, "The police had submitted the final report on 31.08.2016 stating that the case was registered under mistake of fact as it has been revealed from the investigation that the petitioner had given the minor child to the Opposite Parties voluntarily. The petitioner did not file any protest petition as he was not aware of filing of the said report. As consequence thereof, the Sub-Divisional Judicial Magistrate accepted the final report on 11.02.2017. The petitioner filed another complaint in the court of the Sub Divisional Judicial Magistrate, Rourkela being I.C.C Case No.120/2017. The petitioner's wife had also approached the Patna High Court by filing a writ petition being Cr.W.J.C. Case No.1232 of 2017. But the same was withdrawn on 04.08.2017 with liberty to seek remedy which might be available to her in law."

Simply put, the Division Bench then stipulates in para 57 that, "Having appreciated the submission as advanced by the counsel for the parties and also having scrutinized the records as produced in support of the averments, we find three questions which are pertinent to adjudicate the right of the petitioner in asking for a writ of habeas corpus for restoring the custody of the minor. Those are:

(i) Whether there had been any valid adoption of the minor by Opposite Parties No.9 and 11?

(ii) Whether this court has the territorial jurisdiction over the subject matter or for issuing the writ of habeas corpus?

(iii) Whether the custody of the minor girl needs to be restored in favour of the petitioner?"

Regarding the first question, the Division Bench propounds in para 58 that, "(i) Whether there had been any valid adoption of the minor by Opposite Parties No.9 and 11?

It has been admitted by the parties that there is no practice in the Mohammedan Law, similar to adoption as recognized by Roman and Hindu system. The Opposite Parties No.6 to 11 have submitted that in Section 47 of the Juvenile Justice Care and Protection of Children Act, 2000, (in short "JJ Act") there is provision for adoption. That is a secular provision. Section 41 of the JJ Act provides the detailed procedure for adoption. The primary purpose of adoption, according to the J.J Act, is rehabilitation of the children who are orphans, abandoned or surrendered in terms of prescription as laid down. That apart, stringent guidelines for adoption have been framed. Adoption is carried out through the Central Adoption Resource Agency (CARA, in short) following the procedure as laid down under sub-Section 5 of Section 41. Sub-Section 5 of Section 41 of the J.J Act provides as follows:

(5) No child shall be offered for adoption-

(a) until two members of the Committee declare the child legally free for placement in the case of abandoned children,

(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and

(c) without his consent in the case of a child who can understand and express his consent.

(6) The Court may allow a child to be given in adoption

(a) to a person irrespective of marital status or;

(b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters; or

(c) to childless couples."

Be it noted, the Bench notes in para 66 that, "True it is that a Muslim can adopt a surrendered child but they have to follow the stringent procedure as laid down under the JJ Act and the Rules made thereunder, but not at their whim. So generally in the Islamic countries instead of adoption the guardianship is provided to a minor who needs care and protection. As such, we hold that the claim of adoption is unsustainable in law. Hence, prima facie, there is no proof of adoption of the minor under the JJ Act or under Section 3 of the Muslim Personal Law (Shariat Act), 1937. Even there is no specific averment either in the writ petition or in the petition filed seeking guardianship of the minor in the court of the Family Judge that the minor was adopted following the procedure of the JJ Act."

Now coming to the second question, the Division Bench expounds in para 67 that, "(ii) Whether this court has the territorial jurisdiction over the subject matter or for issuing the writ of habeas corpus? To respond this question we would like to begin with the provisions of Section 226(2) of the Constitution of India. Clause 2 of Article 226 of the Constitution of India provides that the power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. This provision has been incorporated by the Constitution 42nd Amendment which has come into effect on 01.02.1977. This expand the authority of the court even beyond its territorial jurisdiction, if the cause of action wholly or in part arises for the exercises of such power."

As a corollary, the Division Bench then observes in para 68 that, "Hence, the constitutional imperative is that the High Court would exercise jurisdiction in relation to the territories of which it is the High Court. Clauses (1) and (2) of Article 226 have to be read and construed in conjunction with each other but none of them would be capable of extending jurisdiction of the court normally beyond its prescribed territorial jurisdiction. To take benefit of this enlarged jurisdiction, it would be obligatory upon a petitioner to show that any cause of action or part thereof had arisen within the territorial jurisdiction of the said court."

In addition, the Division Bench mandates in para 71 that, "While Article 226(1) empowers a High Court to issue writs to a person, authority or government within its territorial limits de hors the question where the cause of action arose, Article 226(2) enables High Courts to issue writs to persons, authorities or governments located beyond its territorial limits provided a cause of action arises (in whole or in part) within the territorial extent of the said High Court. Article 226(2) has extended the jurisdiction of the High Courts beyond their territories in cases where part of the cause of action arises within its territories. Therefore, Article 226(2) does not supplant Article 226(1)."

Do note, the Division Bench notes in para 79 that, "We must note that the Guardianship proceeding has been initiated in the premises, that the minor has been purportedly adopted by Opposite Parties No.9 and 11. We have already observed that no court has approved or declared adoption. In absence of legal adoption, when the petitioner, being the father, has been demanding her custody, the minor has to be considered to be in the illegal detention of the Opposite Parties No.9 and 11."

Now coming to the third question, the Division Bench postulates in para 82 that, "(iii) Whether the custody of the minor girl should be restored in favour of the petitioner?

We have observed that in absence of adoption, the custody of the minor child is liable to be termed as illegal detention. Even the kinship relationship as has been argued is not sufficient to deprive the parents from getting the custody of their child and the detention of the child was sought to be justified by the pretext of adoption which does not exist in fact or in law.

We are aware that the emotional bonding that has been developed on account of the long stay of the minor namely, Sumaiya Khanam with the Opposite Parties No.6 to 11 is one of the important factors which needs to be considered by us. But having regard to the right of the petitioner and also the best interest of the child, we would hold that the custody of the minor can be restored by way of writ of habeas corpus if the custody of the child is not handed over to the petitioner by 30.06.2023 by the Opposite Parties No.6 to 11 and the Opposite Parties No.9 and 11 in particular, in whose custody the minor child is presently living."

It cannot be glossed over that the Division Bench then minces no words to hold in para 84 that, "We have considered the spectrum of issues to come to this conclusion, we must also note that the other minor of the twin sister is living with the petitioner. The petitioner has sufficient resources to take good care of the minors. Merely because the Opposite Parties No.6 to 11 took care of the child for sometime or may be for a long time, they cannot retain the custody of the child. If the custody is not restored to the petitioner, the court will be depriving both the child and the parent."

Furthermore, the Division Bench directs in para 85 that, "We direct the Opposite Parties No.9 and 11 to handover the custody of the minor child, Sumaiya Khanam to the petitioner at his residence at Rourkela, Sundargarh. The expenses for the journey of Opposite Parties No.9 and 11 to be borne by the petitioner. We would expect that the relation between the petitioner and the Opposite Parties No.6 to 11 shall be normal. In expectation thereof, the petitioner is directed to allow the Opposite Parties No.6 to 11 to visit the minor girl at his residence whenever they propose to visit. If the confidence is restored, the petitioner may also allow the minor girl to visit them and to spend some days with them."

Most bluntly, the Division Bench directs in para 86 that, "In the event of failure to comply our above direction, the petitioner shall inform the Registrar, (Judicial) of this court who will, by the authority of this order, issue the writ of habeas corpus for recovering the minor girl from the custody of the Opposite Parties No.6 and 11, particularly from the Opposite Parties No.9 and 11 and to hand over the minor child namely, Sumaiya Khanam to the custody of the petitioner. The Opposite Parties No.1 to 4 shall execute the writ of habeas corpus and hand over the minor child to the petitioner."

All told, we thus see that the Orissa High Court has made it indubitably clear that Muslims can't adopt under the Personal Law. So it was also thus rightly reiterated by the Court that the Muslims must follow procedure prescribed under Juvenile Justice Act for adoption. No denying!


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