LPA.No.357/2012 Page 1 of 16
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11
th May, 2012
+ LPA No.357/2012
MS. TEESTA CHATTORAJ THROUGH HER MOTHER/NATURAL
GUARDIAN SMT. RAJESHWARI CHATTORAJ ..... Appellant
Through: Mr. M. Dutta, Advocate
Versus
UNION OF INDIA ..... Respondent
Through: Mr. Ruchir Mishra, Advocate.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This intra court appeal impugns the judgment dated 30
th
March, 2012
of the learned Single Judge dismissing WP(C) No. 2888/2011 preferred by
the appellant. The said writ petition was filed by the appellant impugning
the communication dated 4
th
April, 2011 of the Regional Passport Office,
Ministry of External Affairs, Government of India and seeking a mandamus
for issuance of the passport, applied for by the appellant.
2. The counsel for the respondent (who had appeared before the learned
Single Judge also) appears on advance notice and we have with the consent
of the counsels heard the appeal finally at this stage only.
3. The appellant is a minor, born on 15
th
November, 1995 to Smt.
Rajeshwari Chattoraj (through whom the writ petition and this appeal are LPA.No.357/2012 Page 2 of 16
filed) then known as Smt. Rajeshwari Ghosh (hereinafter referred to as
mother) and Shri Abhijit Ghosh (hereinafter referred to as biological father).
The biological father of the appellant, in or about the year 1996 i.e. soon
after the birth of the appellant filed a petition in the Courts at Alipore,
District 24- Parganas (South) for a decree of restitution of conjugal rights
against the mother of the appellant. During the pendency of the said
proceedings, in or about November, 1997, an application under Order 23
Rule 3 read with Section 13 B of the Hindu Marriage Act, 1956 was filed by
the biological father and mother of the appellant seeking dissolution of their
marriage (which had taken place on 1
st
February, 1993) by a decree of
divorce and on the terms and conditions contained in the said application. In
the said application, the mother of the appellant waived and/or disclaimed
alimony pendentilite and/or permanent alimony and/or any other claim or
claims against the biological father of the appellant. It was further recorded
in the said application that the mother of the appellant, during her pregnancy
of which the appellant was born, stayed at her paternal home from 16
th
September, 1995 and had continued to stay in her paternal house till the said
application for dissolution of marriage by mutual consent was filed and the
appellant also since her birth on 15
th
November, 1995 had resided with her
mother only. The mother of the appellant, as per the terms and conditions of
the dissolution of marriage, further agreed that she will not claim and/or
demand any maintenance or alimony for the minor child i.e. the appellant
herein at present or in future from the biological father of the appellant and
had agreed to maintain the appellant herself only. It was further a term of LPA.No.357/2012 Page 3 of 16
the said settlement between the mother and biological father of the
appellant–
“the petitioner admits that he has no right to see the
child for all times to come and he will not interfere in any
manner regarding rearing up the child by the opposite
party and her family members and that he shall have no
right to claim and /or demand for custody of the said
child from the opposite party”.
In the aforesaid, the biological father of the appellant is described as
the petitioner and the mother of the appellant as the opposite party.
4. The Fifth Court of the Additional District Judge Alipore, (South) 24
Parganas, before whom the aforesaid proceedings were pending, vide order
dated 27
th
November, 1997 allowed the petition originally filed for
restitution of conjugal rights to be converted into a petition for divorce by
mutual consent and after examining both , the mother and the biological
father of the appellant on oath and finding, that they had been living apart
from each other from 16
th
September, 1995, and the terms of compromise as
contained in the compromise application aforesaid to be lawful, dissolved
their marriage by a decree of divorce by mutual consent under Section 13B
(supra) in terms of the compromise petition aforesaid which was ordered to
form part of the decree.
5. The mother of the appellant (maiden name Rajeshwari Chatterjee)
thereafter on 4
th
March, 1999 married Shri Surojit Chattoraj. On 12
th
June,
2006 a Deed of Adoption was executed and registered with the Additional
District Sub-Registrar Alipore, 24 Parganas (South) whereunder the mother LPA.No.357/2012 Page 4 of 16
of the appellant gave the appellant in adoption to the said Shri Surojit
Chattoraj (hereinafter referred to as adoptive father). It is recorded in the
said Deed of Adoption, that the appellant had throughout been living with
her mother; that her biological father had granted total custody of the
appellant to the mother and the appellant was being maintained and looked
after by the mother only; that since the marriage of the mother with the
adoptive father, the appellant had been residing as the daughter of the
adoptive father and had been considering him only as her father; however,
owing to the problems being experienced, it had been decided to formalize
the adoption, in accordance with the ceremonies as well as by execution of
the deed. One of the clauses of the said Adoption Deed was as under:
“AND WHEREAS the natural father of the child
“TEESTA” gave his consent to the First Party to give the
child in Adoption if necessary for proper maintenance,
welfare, upkeep, upbringing and for following proper
educational permits of the child.”
In the said Adoption Deed, the mother was described as the First Party
and the adoptive father took responsibility for the maintenance and
education of the appellant and to bring up the appellant as his natural
daughter according to his status in life.
6. The appellant on 26
th
July, 2010 applied for a passport but which was
denied vide communication dated 4
th
April, 2011 (supra) for the following
reasons:
“On scrutiny of file, it is seen that biological father’s name
as per birth certificate has not mentioned in the passport
application form. The adoption Deed as per Adoption Act LPA.No.357/2012 Page 5 of 16
is also not valid. As per rules of Ministry of External
Affairs Circular No. VI/401/01/05/2008 dated 05.10.2009
serial No. 4(2) “In the event of remarriage after divorce,
the name of step-father /step-mother cannot be written in
the passport of children from the previous marriage. The
relationship of the child to his biological parents subsists,
even after divorce by parents. It is also not possible to
leave the column of father or mother blank in the
passport in such cases. Therefore, such applicants must
write the names of their biological parents in the
application form. However, if the stepfather or
stepmother is appointed by a Court as legal guardian, the
name of such step-parent can be written as legal
guardian”.
In view of the instruction, you are advised to furnish a
fresh Form-1 with name of biological father or a Court
Order appointing you as a Legal Guardian. This may be
treated as Final Reminder, your compliance may reach
this office within 15 days, failing which you have nothing
to say and your complaint may be treated as closed.”
7. Impugning the aforesaid communication, the writ petition was filed.
The contention of the appellant in the writ petition was that the mother was
entitled to give the appellant in adoption because the biological father of the
appellant had renounced the appellant.
8. The relevant part of Section 9 of the Hindu Adoptions and
Maintenance Act, 1956 at the time of registration on 12
th
June, 2006 of the
Deed of Adoption was as under:-
“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.LPA.No.357/2012 Page 6 of 16
(2) Subject to the provisions of
1
[sub-section (3) and subsection (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.”
Section 9 was amended w.e.f. 31
st
August, 2010. The amended sub
Section 2 is as under:-
“(2) Subject to the provision of sub-section (4), the
father or the mother, if alive, shall have equal right
to give a son or daughter in adoption:
Provided that such right shall not be exercised by
either of them save with the consent of the other
unless one of them 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.”
Vide the same amendment, Sub Section (3) (supra) stands deleted.
9. The respondent, in the counter affidavit, besides reiterating the reason
contained in the communication dated 4
th
April, 2011, also pleaded that the
Adoption Deed (supra) is not valid inasmuch as though the biological father
of the appellant was alive and had not renounced the world, the Adoption
LPA.No.357/2012 Page 7 of 16
Deed did not bear his signatures in token of his consent to the mother giving
the appellant in adoption.
10. The learned Single Judge in the judgment impugned before us has
held that passport can be denied on grounds other than those specified in
Section 6 of the Passport Act, 1967 also and has in this regard differed with
the view of the Full Bench of the Punjab and Haryana High Court in
Pawandeep Singh Vs. Union of India 2003 LawSuit (P&H) 1221. It has
further been held that the passport authority has jurisdiction to go into the
issue of correctness of the Adoption Deed, if the same appears to be in
contravention of law. Having held so, the learned Single Judge entered into
the aspect of validity of the Adoption Deed (supra) and held (without
noticing Section 9 as it stood at the time of registration of adoption deed)
that under Section 9 (supra) the mother, though can give the child in
adoption but only with the consent of the father unless the father 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. The plea of the counsel for the appellant that renunciation under
Section 9 (supra) is the renunciation of the child was negatived and it was
held, and according to us rightly so, that the consent of the father to adoption
can be done away with only if the father has renounced the world. The
learned Single Judge further held that the mother of the appellant could not
have taken away or surrendered the appellant‟s right to claim that Shri
Abhijit Ghosh is her natural / biological father and to claim her status as the
daughter and heir of Shri Abhijit Ghosh. It was further observed that the
identity of the child is derived from the biological parents and the settlement LPA.No.357/2012 Page 8 of 16
arrived at between the biological / natural parents of the appellant while
obtaining dissolution of their marriage could not be construed as consent of
the biological father of the appellant to the mother of the appellant giving the
appellant in adoption. The Adoption Deed was also declared as void.
11. The counsel for the appellant in the memorandum of appeal has again
emphasized that the biological father of the appellant having renounced the
appellant, the conditions of Section 9 of the Adoption Act (supra) were
satisfied and the Adoption Deed is valid.
12. In our view, the argument aforesaid of the counsel for the appellant
before the learned Single Judge as also in the memorandum of appeal is
misconceived.
13. Prior to 31
st
August, 2010, it was only the natural/biological father
who could give the child in adoption, though with the consent of the mother
and the entitlement of the mother to give the child in adoption arose only if
the father was dead or had completely and finally renounced the world or
ceased to be Hindu etc. The biological father in the present case is not dead.
It is also not the case that he has renounced the world or has ceased to be a
Hindu. The mother thus, could not have on 12
th
June, 2006 (when the deed
of adoption was registered) given the appellant in adoption . Be that as it
may, the Sub Registrar, Alipore registered the deed of adoption.
14. Significantly, the biological father of the appellant who alone would
have locus to challenge the said adoption has chosen not to do so. Article 57
of the Schedule to the Limitation Act, 1963 provides period of limitation of LPA.No.357/2012 Page 9 of 16
three years from knowledge for challenging an adoption. Otherwise, Section
16 of the Adoption Act is as under:-
“16. Presumption as to registered documents relating to
adoption
Whenever any document registered under any law for
the time being in force is produced before any court
purporting to record an adoption made and is signed by
the person giving and the person taking the child in
adoption, the court shall presume that the adoption has
been made in compliance with the provisions of this Act
unless and until it is disproved.”
The Regional Passport Office before whom the deed of adoption was
produced was therefore under the aforesaid provision bound to presume the
adoption recorded in the said deed to have been made in compliance with the
provisions of the Adoption Act.
15. We, in these proceedings, do not deem it expedient to adjudicate,
whether the Regional Passport Office, in the face of a statutory presumption
(though rebutable) of validity of adoption recorded in registered adoption
deed and in the absence of any challenge thereto by the biological father
who alone would have locus to challenge the same, is entitled to test the
validity of the adoption deed in as much as we, for the reasons following, do
not find any defect in the deed. Similarly, no argument on Section 6 of the
Passport Act or qua the judgment supra of the Full Bench of the Punjab &
Haryana High Court has been raised before us and we have not considered
the judgment of the learned Single Judge on the said aspect.LPA.No.357/2012 Page 10 of 16
16. We are further of the opinion that Section 9 of the Adoption Act as it
stood prior to the amendment w.e.f. 31
st
August, 2010, by conferring the
right to give in adoption on the father only and by conferring such right on
the mother only in certain eventualities aforesaid, was arbitrary and
discriminated between the mother and the father without any reasonable
basis and merely on ground of sex. It is perhaps for the said reason only, that
the same has been amended w.e.f. 31
st
August, 2010 so as to give equal
rights to the mother and father of the child to give in adoption. Now that the
law has been amended, we do not see any justification in applying to this lis
which has arisen after the amendment, the law as it stood prior to the
amendment, especially when no challenge as aforesaid is being made by the
biological father of the appellant.
17. The question however still remains as to whether the biological father
of the appellant can be said to have consented to the giving in adoption of
the appellant. Admittedly, there is no consent at the time of adoption and the
consent is attributed to the terms of the settlement at the time of dissolution
of marriage of the natural/biological parents of the appellant. The Adoption
Act has not prescribed any form of such consent. In the present case, the
Registrar entrusted with the duty of registration of the Adoption Deed was
satisfied that the biological father of the appellant had in the compromise
application aforesaid in the matrimonial proceedings given consent to the
mother giving the appellant in adoption. We tend to agree with the same.
As aforesaid, the appellant since her birth has never resided in the house of
her biological father who, while dissolving his marriage with the mother of
the appellant gave up his right to even see the appellant for all times to come LPA.No.357/2012 Page 11 of 16
and/or to interfere in any manner with the rearing up of the appellant and
also gave up his rights to the custody of the appellant. Even though the
consent to the mother giving away the appellant in adoption is not expressly
recorded therein but the language in our opinion is wide enough to include a
consent to giving of the appellant in adoption particularly to the person with
whom the mother of the appellant is now married. The consent under
Section 9 can also be implied and there is no requirement of express consent
or consent in writing. Reference in this regard can be made to, Om Parkash
v. Des Ram MANU/PH/0359/1999 where also the adoption deed did not
bear the signatures of consenting parent.
18. There is another aspect of the matter. Adoption deed (which can bear
signature by way of consent) is not necessary for adoption to be effected.
Adoption can also be effected by giving and taking the child in adoption as
per the custom. If the adoption is to be effected in such a manner, the
consent will necessarily have to be proved by evidence. From the same it
also follows that upon adoption being challenged, an opportunity has to be
given to the party relying on the adoption to prove the validity thereof and
since this is not a proceeding in which the person having locus to challenge
the adoption is challenging the adoption, there is no option but to presume
the adoption to be valid as is the mandate of Section 16 of the Act.
19. We are rather on a meaningful reading of the compromise in the
matrimonial proceedings, of the opinion that the biological father, who alone
as per Section 9 as it then stood, had empowered the mother to give the
appellant in adoption. We find the Calcutta High Court, in Soma Chatterjee LPA.No.357/2012 Page 12 of 16
v. Chapala Chatterjee MANU/WB/0258/1989, to have, relying on
Viziaramgam v. Lakshuman 4 Bombay HCR., O.C. 244, Shyam Singh v.
Santa Bhai 25 Bom. 554, Vijjama v. Surjya
Prakash MANU/TN/0228/1942 and Laxman v. Rup Kanwar,
MANU/SC/0225/1961, held that the power to give in adoption under
Section 9 can be delegated.
20. It also not as if the mother of the appellant was giving the appellant in
adoption to a stranger or that the mother of the appellant was separating
herself also from the appellant, in which case perhaps it could have been
said that the biological father had consented only to the mother rearing up
the child and not to a stranger rearing up the child. If the mother of the
appellant in so rearing up the appellant finds it more convenient to give the
appellant in adoption to her present husband, the same in our opinion would
be within the parameters of her power consented to by the biological father
of the appellant.
21. The Supreme Court in Joginder Pal v Naval Kishore Behal (2002) 5
SCC 397 though in the context of different statute observed that if the Courts
do not meaningfully construe statute, the provisions thereof may suffer from
the risk of being branded as unreasonable, arbitrary or as placing uncalled
for and unreasonable restrictions. It was further observed that the Courts
cannot interpret a statute in an unreasonable way and have to give colour
and content to the expression and provide the skin of a living thought to the
skeleton of the words which the legislature itself has not chosen to define. It
was further laid down that the societal conditions, customs, requirements LPA.No.357/2012 Page 13 of 16
and the context where the provision is set in the legislation are the guides
leading to interpretation thereof.
22. Though we have not been able to find any case law in the Indian
context but we find the House of Lords in Re D. (An Infant) [1977] 2
W.L.R. 79 to have been faced with a similar position. There, the biological
parents were divorced on the ground of the father indulging in
homosexuality. By consent custody was granted to the mother with
reasonable access to the father. The said access, over a period of time
became less frequent and eventually ceased altogether. Upon the mother
remarrying, the maintenance which the father was earlier paying stopped.
Upon the mother with her new husband applying to adopt the child because
they wanted the child to be a full member of their family, the biological
father opposed such adoption. The Trial Judge held that the biological father
was unreasonably withholding consent, dispensed with it and made an
adoption order. The Court of Appeal reversed the Trial Court‟s decision. The
House of Lords allowed the appeal of the biological mother holding that the
Trial Court had given due weight to the welfare of a child and had not
misdirected itself in law. One of the Judges in his opinion quoted with
approval the reasoning given in another judgment as under:-
“On my understanding of the authorities, and as a matter of
good sense, it is only where the welfare of the child so
overwhelmingly requires adoption, that the father can and
should be deprived of his parental status.”
23. We find a similar situation to have arisen before Court in Singapore in
Re SS [1975] 1 Malayan Law Journal 56. Finding the natural father in that LPA.No.357/2012 Page 14 of 16
case to be completely unfit to continue in the role of the father, his consent
to the biological mother and her new husband taking the child in adoption
was dispensed with.
24. In the present case also the biological father of the appellant has
totally renounced the appellant and has not performed any of the fatherly
duties. We fail to see as to how the mother can be restrained from lawfully
including the appellant in her new family. Parental rights cannot be allowed
to spring full blown from merely a biological connection. They require
relationships more enduring. The biological connection only gives a right to
develop a relationship and make contribution to child‟s development.
However if a parent does not grasp that opportunity, does not accept any
measure of responsibility, the laws and the courts will hesitate to read any
such rights in favour of a parent who has failed to do so. An observation to
this effect can be found in a judgment of the Supreme Court of the United
States in Abdiel CABAN v. Kazim MOHAMMED 441 U.S. 380 where it
was observed that “in those cases where the father never has come forward
to participate in the rearing of his child, nothing in the Equal Protection
Clause would preclude the State from withholding from him the privilege of
vetoing the adoption of that child.”
25. Though the Indian law does not, on renunciation of the child by either
parent, vest a exclusive right in the other to give the child in adoption but
such renunciation can be taken into consideration while determining whether
the power to give in adoption has been delegated or to determine the consent
to giving in adoption. LPA.No.357/2012 Page 15 of 16
26. Moreover the primary objective in matters relating to adoption is of
the welfare of the child. We are satisfied that the adoption aforesaid is for
the welfare of the child. Courts cannot be blind to the practicalities and
realities of life. It is evident from the documents on record that though the
name of the appellant in the birth certificate is shown as “Teesta Ghosh” the
name by which the appellant is admitted to the school is “Teesta Chattoraj”
and in the school records the name of her parents is recorded as of the
mother and adoptive father. A child of tender age becomes a target of
unnecessary queries if his/her surname differs from that of her parents. Such
difference also acts as a continuous reminder of the factum of adoption and
can be a bar to a smooth, natural relationship between the child and her
parents. We therefore see nothing unusual in mother of the appellant, upon
remarriage having given the appellant in adoption to her husband. The same
is found to be a step permeating harmony in the family and to also create
rights in favour of the appellant in the family of the husband of the mother of
the appellant.
27. Before parting with the subject, to obviate any further controversy we
may also advert to the reasoning given in the letter dated 4
th
April, 2011.
The letter dated 4
th
April, 2011 appears to suggest that the name only of the
biological parents can be written in the passport. The same would be
contrary to Section 12 of the Adoption Act providing for the adopted child,
from the date of adoption being deemed to be the child of adoptive parents.
The counsel for the respondent agrees that if the adoption is held to be valid,
then the name of the adoptive father i.e. of Shri Surojit Chattoraj would be
written as the name of the father of the appellant. The part of the letter dated LPA.No.357/2012 Page 16 of 16
4
th
April, 2011 (supra) to the effect that the names of the biological parents
only would be written is contrary to section 12 of the Act as per which on
adoption the ties of the child in the family of birth are severed and replaced
by those in the adoptive family.
28. We therefore allow this appeal and consequently the writ petition filed
by the appellant. In view of what we have held and clarification aforesaid,
need is not felt to quash the letter dated 4
th
April, 2011. The respondent is
directed to, within ten weeks hereof and subject to compliance by the
appellant/her parents of the remaining formalities if any, issue a passport to
the appellant and in which passport the names of her mother and father shall
be that of Smt. Rajeshwari Chattoraj and Surojit Chattoraj respectively. We
refrain from imposing any costs on the respondent.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MAY 11, 2012
„M‟/pp..
