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IN THE HIGH COURT OF ______________

CIVIL APPEAL NO. _____/ OF _____

IN THE MATTER OF:

ARUNA
and
KAUSHAL ………… APPELLANTS
VERSUS
MALA
and
BALRAJ ...……….. RESPONDENTS

ON SUBMISSION TO THE HONOURABLE HIGH COURT OF _______________

MOST RESPECTFULLY SUBMITTED THROUGH:


COUNSEL FOR THE PETITIONER
TAPASYA SHARMA
VIth Semester, Section B, LC-1
ROLL NO. 85

TABLE OF CONTENTS

1
LIST OF ABBREVIATIONS……………………………………………………………...3

INDEX OF AUTHORITIES………………………………………………….....................4

STATEMENT OF JURISDICTION………………………………………….....................6

STATEMENT OF FACTS………………………………………………………………....7

STATEMENT OF ISSUES………………………………………………………………...9

SUMMARY OF ARGUMENTS………………………………………………………….10

ARGUMENTS ADVANCED……………………………………………………………..11

ISSUE 1 - THAT THE ADOPTION OF KAUSHAL BY MAINA DEVI DOES NOT


FULFIL THE REQUIREMENTS UNDER THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956 TO EFFECTUATE A VALID ADOPTION…………..11

(1.1) That the intention to give the child in adoption was absent………………………..11
(1.2) That the adoption was invalid as Aruna’s consent was vitiated, having been given
under a mistaken belief as to the nature of the ceremony………………………….12

ISSUE 2 - THAT THE ADOPTION OF KAUSHAL CANNOT BE HELD VALID


AND BINDING, BEING CONTRARY TO THE PRINCIPLE OF BEST
INTERESTS OF THE CHILD………………………………………………………......14

ISSUE 3 - THAT KAUSHAL IS ENTITLED TO A SHARE IN THE PROPERTY


OF HIS NATURAL FATHER AROHI…………………………………………………20

PRAYER…………………………………………………………………………………...22

2
LIST OF ABBREVIATIONS

& And

Art. Article

CPC Civil Procedure Code

CRC Child Rights Convention

Ed. Edition

HAMA Hindu Adoption and Maintenance Act

HMGA Hindu Minority and Guardianship Act,


1956
Ibid. Ibidem

JJ Act Juvenile Justice (Care and Protection of


Children) Act.
Para Paragraph

Pg Page

PIL Public Interest Litigation

SC Supreme Court

SD Signed

Sec. Section

UN United Nations

UNHCR United Nations High Commissioner for


Refugess
US United States

V. Versus

3
INDEX OF AUTHORITIES

Statutes

1. Constitution of India, 1950


2. Code of Civil Procedure, 1908 (Act No. 5 of 1908)
3. Hindu Adoption and Maintenance Act, 1956 (Act No. 78 of 1956)
4. Hindu Minority and Guardianship Act, 1956 (Act No. 32 of 1956)
5. Guardians and Wards Act, 1890 (Act No. 8 of 1890)
6. The Indian Evidence Act, 1872 (Act No. 1 of 1872)
7. The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of
2000)

Conventions

1. UN Convention on the Rights of the Child, 1989


2. Hague Convention On Protection Of Children And Co-Operation In Respect Of
Intercountry Adoption (Concluded on 29 May 1993).
3. UN Declaration on Social and Legal Principles relating to the Protection and Welfare
of Children, with Special Reference to Foster Placement and Adoption Nationally and
Internationally, 1986.

Books & Reports

1. Satyajeet A Desai (ed.), Principles of Mulla’s Hindu Law (LexisNexis, New Delhi,
21st ed., 2010).
2. Justice Ranganath Mishra & Dr. Vijender Kumar (eds.), Mayne’s Hindu Law & Usage
(Bharat Law House, New Delhi, 16th ed., 2008).
3. Asha Bajpai, Child Rights in India: Law, Policy, and Practice (Oxford University
Press, New Delhi, 2nd ed., 2006).
4. Dr. Paras Diwan, Law of Adoption, Minority, Guardianship & Custody (Universal
Law Publishing Co., New Delhi, 4th ed., 2010).
5. UNHCR Guidelines on Determining the Best Interests of the Child, 2008
6. Committee on the Rights of the Child, General Comment No. 14 (2013).

Judicial Decisions

1. Chandra Sekhara (VTS) v. Kulandaivelu, AIR 1963 SC 18.


2. Shoshinath Ghose v. Krishnasundari Dasi (1880) ILR 6 Cal 381.
3. Lakshman Singh v. Rup Kanwar (1962) 1 SCR 477.

4
4. Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244.
5. Mrs Elizabeth Dinshaw v. Arvand M. Dinshaw AIR 1987 SC 3.
6. Ms. Githa Hariharan and another v. Reserve Bank of India and another (1999) 2
SCC 228.
7. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.
8. Lily Thomas Etc. Etc. v. Union of India (2000) 6 SCC 224.
9. Sarla Mudgal & others. v. Union of India (1995) 3 SCC 635.
10. Daulat Rao Jai Ram Ji v. Harish Chandra and others (1973) 2 SCC 307.
11. Y. Nayudamma v. Government of Andhra Pradesh AIR 1981 AP 19.

Websites referred

1. https://www.hcch.net
2. http://www.un.org
3. https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/
4. http://www.scconline.com/

5
STATEMENT OF JURISDICTION

The applicant humbly submits to the jurisdiction of this Hon’ble High Court under Sec. 96 of
the Code of Civil Procedure, 1908. The present petition sets forth the facts, contentions and
arguments in the present case.

Section 96 of the CPC confers a right of appeal. It reads as under:

96. Appeal from Original decree.- (1) Save where otherwise expressly provided in the body
of this Code, or by any other law for the time being in force, an appeal shall lie from every
decree passed by any court exercising original jurisdiction to the court authorized to hear
appeals from the decisions of such court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.

6
STATEMENT OF FACTS

 Arohi and Aruna, both Hindus, got married in 1977.


 In 1978, they had a daughter named Mala.
 In 1980, a son was born to them but unfortunately, he died when he was just two years old.
 In 1983, Aruna gave birth to another son, who also lost his life in a road accident just as he
turned five years old. The couple was completely devastated.
 In 1990, yet another son was born to them. He was named Kaushal.
 Having lost two sons, the couple was extremely fearful and they did not want Kaushal to
meet the same fate. They consulted an astrologer for the purpose of securing the well-
being of this child. The astrologer advised the couple to give away the child in adoption to
a person of the lower caste if they wanted him to survive.
 Being afraid of losing their only son for a third time, the couple decided to give Kaushal in
adoption to their sweeper, Maina Devi, a 50 year old childless widow.
 In a formal ceremony, Kaushal was given to Maina Devi by Arohi and Aruna and was
taken by Maina Devi. Thereafter, she gave him back to the couple for bringing him up as
she did not have the means to do so.
 Maina Devi kept visiting them regularly and gave something for Kaushal every month till
he was ten years old when she died.
 In the meanwhile, in 1994, another son was born to the couple and he was named Balraj.
 The fact of adoption of Kaushal was treated by Arohi and Aruna as only a formality to
save his life and he was brought up by Arohi and Aruna as their son with Mala and Balraj.
 In 2012, Arohi died intestate.
 Aruna decided to divide the property in four equal shares, one each for herself, Mala,
Kaushal and Balraj. Mala and Balraj objected to it and demanded 1/3 share in the property
as they claimed that Kaushal had no right having been given in adoption to Maina Devi.
 They did not pay any heed to Aruna’s pleas that the adoption was a mere ritual carried out
on the advice of the astrologer to save Kaushal’s life but without any intention actually to
give him up. They maintained that the adoption was legal and complete when Kaushal was
given and taken in adoption with a free will.
 In furtherance of their claim, Mala and Balraj filed a suit for division of property and
declaration that Kaushal was not an heir to any property of Arohi in the absence of a will.
 The lower court decreed in favour of the plaintiffs.
 Aruna and Kaushal have filed an appeal against the order, asking for an equal share to
Kaushal in the suit properties being the natural son of Arohi and Aruna.

7
STATEMENT OF ISSUES

ISSUE 1. Whether the impugned adoption of Kaushal by Maina Devi fulfils the
requirements under the Hindu Adoption and Maintenance Act, 1956 to effectuate a
valid adoption?

ISSUE 2. Whether the adoption of Kaushal can be held to be valid and binding, being
contrary to the principle of Best Interests of the Child?

ISSUE 3. Whether Kaushal is entitled to a share in the property of his natural father,
Arohi?

8
SUMMARY OF ARGUMENTS

ISSUE 1 - THAT THE ADOPTION OF KAUSHAL BY MAINA DEVI DOES NOT


FULFIL THE REQUIREMENTS UNDER THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956 TO EFFECTUATE A VALID ADOPTION.

The adoption was invalid as the parents of Kaushal never had the intention of transferring
the boy from his natural family. The giving and taking of the adopted boy must be
accompanied with such an intention, as is the requirement under Sec. 11(vi), HAMA,
1956. The consent, if any, was vitiated due to a mistaken belief as to the nature of the
religious ceremony. The ceremony was a mere formality, followed by the parents on the
advice of the astrologer and cannot be held to have changed the status of the boy. After the
ceremony, Kaushal was given back to Arohi and Aruna by Maina Devi. Therefore, the
ceremony was only a farce which the anxious parents believed would safeguard the life of
their precious son.

ISSUE 2 - THAT THE ADOPTION OF KAUSHAL CANNOT BE HELD VALID


AND BINDING, BEING CONTRARY TO THE PRINCIPLE OF BEST
INTERESTS OF THE CHILD.

An adoption that puts the child in situation of deprivation cannot be held valid and
binding, being contrary to the principle of Best Interests of the Child. Article 3, Para 1 of
the UN Convention on the Rights of the Child, 1989 states that in all actions concerning
children, the best interests of the child shall be a primary consideration. India ratified the
Convention in 1992 and is bound by it. Further, it has been argued that the law on
adoption should be amended to bring it in consonance with the Child Rights Convention
and to make it more child-oriented. The need for a uniform code on adoption has been
emphasised.

ISSUE 3 - THAT KAUSHAL IS ENTITLED TO A SHARE IN THE PROPERTY OF


HIS NATURAL FATHER AROHI.

The adoption of Kaushal being invalid, he continues to be the son of his natural parents
and is entitled to a share in their property. Moreover, if the interest in the natural family is
coparcenary interest, the adopted child has a vested interest in it by birth which cannot be
divested even on adoption.

9
ARGUMENTS ADVANCED

ISSUE 1 - THAT THE ADOPTION OF KAUSHAL BY MAINA DEVI DOES NOT


FULFIL THE REQUIREMENTS UNDER THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956 TO EFFECTUATE A VALID ADOPTION.

The appellants humbly submit that the adoption of Kaushal by Maina Devi does not fulfil
the requirements under the Hindu Adoption and Maintenance Act (HAMA), 1956 and is
hence not a valid adoption.

REQUISITES OF A VALID ADOPTION UNDER THE ACT1


1) The person adopting must have the right to take and be lawfully capable of taking a son or
daughter in adoption (Ss 6, 7, 8).
2) The person giving in adoption must be lawfully capable of doing so (Sec. 9).
3) The person adopted must be lawfully capable of being taken in adoption (Sec. 10).
4) The conditions relating to adoption including actual giving and taking of a child
(emphasis added) with the intention of transferring the child (emphasis added) from the
family of its birth must be complied with [Sec. 11(vi)].

Proviso- performance of datta homam not essential to the validity of adoption.

(1.1) That the intention to give the child in adoption was absent.
It is humbly submitted that the requirement laid down in Section 11(vi) of the HAMA,
1956 of actual giving and taking of the child with the intention of transferring the child
from the family of its birth is absent in the present case.

The appellant Aruna and her deceased husband Arohi had never intended to give up their
only son Kaushal, born after much hardship, in adoption. In fact, the so-called ‘adoption
ceremony’ was, in their view, an attempt to secure the life of their child. It was a mere
ritual undertaken by them on the advice of an astrologer. The ceremony was carried out
only for spiritual purposes and not to alter the legal status of the parties.

Given the peculiar circumstances of the case and the mental trauma and agony that Aruna
and Arohi suffered due to the early loss of two of their sons, the ceremony wherein the

1 Satyajeet A Desai (ed.), Principles of Mulla’s Hindu Law 1281 (LexisNexis, New Delhi, 21st ed.,
2010).

10
couple is alleged to have given Kaushal in adoption to their sweeper Maina Devi, should
not be considered as a valid act of adoption.

Kaushal, being the only son of the couple at the time, it is highly unlikely that Arohi and
Aruna ever intended to give him in adoption, in the sense in which the term is legally
construed. Courts have also taken a strict view where adoption of an only son is
concerned. It is recognized that among Hindus, a peculiar religious significance has
attached to the son. The foundation of the Brahminical doctrine of adoption is the duty,
which every Hindu owes to his ancestors to provide for the continuance of the line and the
solemnization of the necessary rites.2 Ancient texts lend support to this view. Vasistha
wrote that an only son should not be given or received in adoption for he must remain to
continue the line of ancestors.3

(1.2) That the adoption was invalid as Aruna’s consent was vitiated, having been given
under a mistaken belief as to the nature of the ceremony.

Every valid adoption implies the free consent to the adoption of the person giving and the
person receiving in adoption. Where the consent to an adoption is obtained by
misrepresentation, coercion, fraud, undue influence, or mistake, the consent is not free,
and the adoption is voidable at the option of the party whose consent was so obtained.4

It is humbly submitted that in the present case, the consent of the mother Aruna was
vitiated, having been given under the mistaken belief that the ceremony was only a
religious ritual aimed at saving the life of her son.

The actual giving and taking of the child in the adoption ceremony is an essential
requirement under Sec. 11(vi), HAMA, 1956. The same has been held in a number of
cases like Shoshinath Ghose v. Krishnasundari Dasi5 and Lakshman Singh v. Rup
Kanwar6. What is to be noted in the present case is that after the giving and taking of the
child in the ceremony, Kaushal was given back by Maina Devi to Arohi and Aruna and he
2 Chandra Sekhara (VTS) v. Kulandaivelu, AIR 1963 SC 18.

3 Justice Ranganath Mishra & Dr. Vijender Kumar (eds.), Mayne’s Hindu Law & Usage 476 (Bharat
Law House, New Delhi, 16th ed., 2008).

4 Mulla, Principles of Hindu Law, Pg 696.

5 (1880) ILR 6 Cal 381.

11
was brought up by the couple as their child, along with Mala and Balraj. Such an
arrangement is unique and is never seen in instances of actual adoption, where the child is
completely cut off from his natural parents. This is a crucial fact, which goes a long way in
showing that the adoption ceremony was a mere sham, post which the parties reverted
back to their original setup.

Section 50, Indian Evidence Act, 1872- Opinion on relationship, when relevant- When
the court has to form an opinion as to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of such relationship, or any person who,
as a member of the family or otherwise, has special means of knowledge on the subject, is
a relevant fact.

Section 8, Indian Evidence Act also refers to conduct of the parties as a relevant fact.

In the present case, the conduct of the parties throughout did not convey that Kaushal had
been given in adoption or that he had ceased to be the son of Arohi and Aruna. This is a
relevant fact which points towards the conclusion that the relationship of Arohi and Aruna
with Kaushal continued to be that of parents and child.

After the ceremony, Maina Devi did give something for Kaushal every month but it was
nothing more than an expression of her love and affection for the child. When Arohi and
Aruna continued to look after and provide for every need of Kaushal, not much
significance can be attached to the fact that Maina Devi gave a token amount of sum for
Kaushal every month. Had the adoption been valid and proper, Arohi and Aruna would not
have been required to provide for the child.

Importantly, there is no adoption deed. Therefore, presumption under Section 16, HAMA,
1956 that the adoption was validly made in compliance with the 1956 Act does not arise.
Apart from the parties involved, there were no witnesses to the ceremony also. In such a
scenario, when the mother of the child itself is denying the fact of adoption, there is no
reason to disbelieve her.

It would be gross injustice if, against the wishes of the parents, their child is declared to be
the son of another and, for this reason, is stripped of the rights and privileges which
belonged to him as the son of his natural parents. Such a view militates against all
conceptions of child rights.

6 (1962) 1 SCR 477.

12
ISSUE 2 - THAT THE ADOPTION OF KAUSHAL CANNOT BE HELD VALID
AND BINDING, BEING CONTRARY TO THE PRINCIPLE OF BEST
INTERESTS OF THE CHILD.

Further, it is humbly submitted that an adoption that puts the child in situation of
deprivation cannot be held valid and binding, being contrary to the principle of Best
Interests of the Child. This principle is contained in a number of international
Conventions, the most important of which is the UN Convention on the Rights of the
Child, 1989.

 “In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”
Convention on the Rights of the Child (Art. 3, para. 1)

 Article 21 of the UN Convention specifically refers to adoption. It states that:-

States Parties that recognize and/or permit the system of adoption shall ensure that the best
interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who
determine, in accordance with applicable law and procedures and on the basis of all
pertinent and reliable information, that the adoption is permissible in view of the child's
status concerning parents, relatives and legal guardians and that, if required, the persons
concerned have given their informed consent to the adoption (emphasis added) on the
basis of such counselling as may be necessary;
 Article 4 of the Convention provides that the state parties should review their legislation
and ensure that their laws are consistent with the Convention.

On 11 December 1992, India ratified the Convention and acquired an obligation to ensure
that the rights enshrined under the Convention are protected in the country.

 UNHCR Guidelines on Determining the Best Interests of the Child, 2008


The use of the term “best interests” in the CRC
The term “best interests” broadly describes the well-being of a child. Such well-being is
determined by a variety of individual circumstances, such as the age, the level of maturity
of the child, the presence or absence of parents, the child’s environment and experiences.

13
The use of the term “best interests” under Juvenile Justice (Care and Protection of
Children) Rules, 2007

Best interests is not defined under the JJ Act but has been defined in the Juvenile Justice
(Care and Protection of Children) Rules, 2007, which were notified in October 2007.

Rule 2(c) of the JJ Rules states as follows: “best interest of the child” means a decision
taken to ensure the physical, emotional, intellectual, social and moral development of
juvenile or child.

The Committee on the Rights of the Child has further elaborated on the Best Interest of
the Child principle in its General Comment No. 14 (2013). The Committee has identified
Art. 3, Para 1 as one of the four general principles of the Convention for interpreting and
implementing all the rights of the child.

The Committee underlines that the child’s best interests is a threefold concept:

(a) A substantive right: it is the right of a child to have his or her best interests assessed and
taken as a primary consideration when different interests are being considered in order to
reach a decision on the issue at stake.
(b) A fundamental, interpretative legal principle: if a legal provision is open to more than one
interpretation, the interpretation which most effectively serves the child’s best interests
should be chosen.
(c) A rule of procedure: whenever a decision is to be made that will affect a child, a group of
children or children in general, the decision-making process must include an evaluation of
the possible impact of the decision on the child or children concerned.

 Hague Convention On Protection Of Children And Co-Operation In Respect Of


Intercountry Adoption (Concluded on 29 May 1993)7

India ratified the Convention in 2003.

It lays down that each State should take, as a matter of priority, appropriate measures to
enable the child to remain in the care of his or her family of origin.

7 https://www.hcch.net (accessed on February 23, 2017).

14
 UN Declaration on Social and Legal Principles relating to the Protection and Welfare
of Children, with Special Reference to Foster Placement and Adoption Nationally
and Internationally, 19868.
Article 3- The first priority for a child is to be cared for by his or her own parents.

Determining the Best Interests of the Child9

In the US, some factors commonly required for determining the best interests of the child
are:

 The emotional ties and relationships between the child and his or her parents, siblings,
family and household members, or other caregivers;
 The capacity of the parents to provide a safe home and under adequate food, clothing, and
medical care;
 The mental and physical health needs of the child;
 The mental and physical health needs of the parents.

In this case, due to the early loss of two sons of Arohi and Aruna, the couple was in a state
of anxiety and they feared that their third son might meet the same fate as the first two.
They had become extremely superstitious and wanted to take all possible measures to
protect the life of their third son. It is in this background that their act should be seen. By
performing the adoption ceremony, the couple was not relinquishing their son. The act
was, for them, only an attempt to safeguard the life of their precious son. This arrangement
was made clear to Maina Devi as well, who agreed to take part in the ceremony with the
understanding that it was a mere ritual.

Moreover, it is important to note that giving legal recognition to such religious ceremonies
is contrary to the principles of the various Conventions of which India is a member. The
Act recognizes even a private act between the natural and adoptive parents concerning
adoption and except in giving the child for adoption by a person other than the natural
guardian, even the scrutiny or permission of the court is not required. In a country with
such a large illiterate population, it is not fit to change the status of a child irrevocably just

8 http://www.un.org (accessed on February 23, 2017).

9 https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/ (accessed on February


23, 2017).

15
by mere performance of a religious ceremony. That too, when the parties to the ceremony
did not intend to do so. This certainly goes against the spirit of the principle of the Best
Interests of the Child.

As Smt. Asha Bajpai has opined, the only adoption law prevalent in India (HAMA, 1956)
is not a child-oriented legislation, but rather parent-oriented.10 It is humbly submitted that
the law should be amended in consonance with the Child Rights Convention so as to make
it more child-oriented.

Currently under the HAMA, the court gets jurisdiction only in cases when a guardian
other than the parents give the child in adoption. When the father or mother gives his/her
child in adoption they need not go through the courts. This may lead to abuse and
exploitation by the parents due to poverty and other causes. Therefore, all cases of
adoption, whether by parents or guardians, should be through courts so that all in-country
adoptions can be regulated and monitored.11

The decision of adoption of a child is an extremely crucial one, which should be reached
after proper consideration of the various factors involved. All the parties concerned in the
process should be made to undergo counselling first. If the child is old enough to form an
opinion, his wishes and desires should be taken into account. Only after following all these
steps should a decision be made whether the child be given in adoption or not. The
primary consideration in arriving at this decision should be what is in the best interest of
the child. Such a procedure is laid down in The Juvenile Justice (Care and Protection of
Children) Act, 2000 but is lacking in Hindu Adoption and Maintenance Act, 1956.

Lakshmi Kant Pandey v. Union of India12


This is a landmark case which arose after a PIL was filed under Art. 32 against
malpractices and trafficking in children in connection with adoption of Indian children
by foreigners. The court laid down several guidelines to be followed in such cases.

10 Asha Bajpai, Child Rights in India: Law, Policy, and Practice 55 (Oxford University Press, New
Delhi, 2nd ed., 2006).

11 Id., Pg 56.

12 (1984) 2 SCC 244.

16
Following is an extract from the judgment, delivered by Justice Bhagwati:
“Every child has a right to love and be loved and to grow up in an atmosphere of love
and affection and of moral and material security and this is possible only if the child is
brought up in a family. The most congenial environment would, of course, be that
of the family of his biological parents. But if for any reason it is not possible for the
biological parents or other near relative to look after the child or the child has been
abandoned and it is either not possible to trace the parents or the parents are not willing
to take care of the child, the next best alternative would be to find adoptive parents for
the child so that the child can grow up under the loving care and attention of the
adoptive parents. The adoptive parents would be the next best substitute for the
biological parents.”

In the present case, where Arohi and Aruna were happily willing to bring up the child
in their own loving care and attection, the question of the child being adopted by
another should not arise.

Further, it was held that before a decision is taken by the biological parents to surrender
the child for adoption, they should be helped to understand all the implications of
adoption including the possibility of adoption by a foreigner and they should be told
specifically that in case the child is adopted, it would not be possible for them to have
any further contact with the child. The biological parents should not be subjected to
any duress in making a decision about relinquishment and even after their decision a
further period of about 3 months should be given to reconsider their decision.

The court suggested a number of details to be assessed to see whether the parent
wishing to take a child in adoption is fit and suitable for the purpose and whether the
child will be able to fit into the environment of the adoptive family and the community
in which it lives. Some of those details are enumerated below:
1. 1. Social status and family background
2. 2. Accommodation for the child
3. 3. Schooling facilities
4. 4. Amenities in the home
5. 5. Standard of living as it appears in the home
6. 6. Type of neighbourhood

The guidelines in the Laxmikant case were issued in the context of Inter-country

17
adoption, but they can well be applied to cases of Intra-country adoption also. In the
case of Kaushal, it can be easily concluded that his natural parents would fare much
better on these parameters compared to Maina Devi. They would be able to provide
him a better and healthier environment for growing up. As the purported adoption in
favour of Maina Devi would put Kaushal in a situation of deprivation, the court must
act as parens patriae and hold the adoption invalid on this ground also, being against
the principle of Best Interests of the Child.

In Mrs Elizabeth Dinshaw v. Arvand M. Dinshaw13 it was held that whenever a


question pertaining to custody of a minor child arose before a court, the matter had to
be decided not on consideration of legal rights of parties but on the sole and
predominant criteria of what would best serve the interest and welfare of the minor.

An instance of the court applying the best interests principle was the Githa Hariharan
case14. In this case, the petitioner Githa Hariharan applied to the Reserve Bank of India
(RBI) for 9% Relief Bond to be held in the name of her minor son, along with an
intimation that the mother would act as the natural guardian for the purposes of
investment. The application was sent back by the RBI advising her to produce the
application signed by the father. The Supreme Court held that the word ‘after’ in Sec. 6
of the Hindu Minority and Guardianship Act, 1956 (HMGA), shall have to be given a
meaning which would serve the need of the situation, viz., the welfare of the minor.

“The whole tenor of the HMGA, 1956 is to protect the welfare of the child and as such
any interpretation ought to be in consonance with the legislative intent.”

Adoption under the Guardians and Wards Act, 1890


The Guardians and Wards Act, 1890 is a general law of the land applicable to all
religious communities, which governs the issue of custody of the child for
guardianship. Sec 17 of the Act provides that the welfare of the child must guide the
Court in the appointment or declaration of a guardian. In considering what will be for

13 AIR 1987 SC 3.

14 Ms. Githa Hariharan and another v. Reserve Bank of India and another (1999) 2 SCC 228.

18
the welfare of the minor, the Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian and his nearness of kin to
the minor, the wishes, if any, of a deceased parent, and any existing or previous
relations of the proposed guardian with the minor or his property [Sec 17(2)], if the
minor is old enough to form an intelligent preference, the court may consider that
preference [Sec 17(3)].

Looking at the gaps and contradictions in the existing legislation, it is strongly argued
that there is need for a uniform code on adoption, which would apply to all
communities. Art. 44 of the Constitution mandates the state to formulate a Uniform
Civil Code for the entire country. This has been reiterated in several cases such as
Mohd. Ahmed Khan v. Shah Bano Begum15, Lily Thomas Etc. Etc. v. Union of India16
and Sarla Mudgal & others. v. Union of India17. Efforts by introducing Bills towards
this end in 1972 and 1980 did not meet any success.

ISSUE 3 - THAT KAUSHAL IS ENTITLED TO A SHARE IN THE PROPERTY


OF HIS NATURAL FATHER AROHI.

In Daulat Rao Jai Ram Ji v. Harish Chandra and Others,18 it was held that the burden
of establishing that there was a valid adoption which deflected the ordinary course of
succession is undoubtedly on the party who pleads the case of adoption.

In this case, as argued earlier, the consent of Aruna was vitiated having been given
under a mistaken belief as to the nature of the religious ceremony in question. Hence, a
valid adoption never took place.

15 AIR 1985 SC 945.

16 (2000) 6 SCC 224.

17 (1995) 3 SCC 635.

18 (1973) 2 SCC 307.

19
It has been established that the burden of proving the validity of adoption is on the
party who pleads the case of adoption. It is pleaded that this burden has not been
sufficiently discharged by the Respondents in the present case, as there is no registered
deed or evidence of witnesses, which could have made the intention of the parties clear.
Apart from Kaushal, the only witness alive being Aruna, it is reasonable to rely on her
account and to declare the adoption invalid.

The effect of an invalid adoption is given in Section 5(2), HAMA, 1956.

Sec 5(2) - an adoption, which is void, does not affect the status or rights of any of the
parties (emphasis added). It creates no rights in favour of the adoptee in the adoptive
family. Nor does the adoptee lose any rights in the family of his or her birth.

The adoption of Kaushal being invalid, he remains the son of his natural parents Arohi
and Aruna, and has full rights to succeed to their property.

Moreover, the nature of the property which Arohi left behind on his death has not been
specified. If the property was ancestral, Kaushal would have a vested interest in it
before adoption and even on adoption, the interest would remain vested in him [Section
12 Proviso (b), HAMA]. He cannot be divested of it just because he has gone to
another family on adoption.

In Y. Nayudamma v. Government of Andhra Pradesh19, the High Court of Andhra


Pradesh has held in favour of the view that when a coparcener is given in adoption, his
undivided interest in the coparcenary property would continue to vest in him even
after adoption by virtue of Proviso (b) to Section 12. This view is in consonance with
the principle of the Best Interests of the Child.

19 AIR 1981 AP 19.

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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced, authorities cited and
pleadings made, it is most humbly and respectfully requested that this Hon’ble Court may
be pleased to adjudge and declare that:

1. That the adoption of Kaushal by Maina Devi did not fulfil the requirements under
HAMA, 1956 and is hence not a valid adoption.
2. That the adoption being contrary to the principle of Best Interests of the Child cannot
be held valid on this ground as well.
3. That Kaushal, still being the son of his natural parents, is entitled to inherit the
property of Arohi.

And pass any other order as the Court deems fit and proper.

All of which is respectfully submitted and affirmed.

SD/-___________________

COUNSEL FOR THE PETITIONERS

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