MR MASSOUD HADJIAHMAD Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) PRAFULLA C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioners have sought writ in the nature of certiorari quashing the order dated 29-02-2008, passed by Civil Judge (Senior Division)/fast Track Court, Almora, in Suit No. 12 of 2008, whereby said court has directed the plaint be returned to the petitioners for presentation before the competent court.

(2.) HEARD learned counsel for the parties.

(3.) THE above quoted provision makes it clear that now after the amend ment which came into force on 22-08-2006, the power to give a child on adop tion under the Act is given to a court, which earlier vested with Juvenile Justice Board. Rule 33 of Juvenile Justice (Care and Protection of Children) Rules, 2007, which framed under aforesaid Act, pro vides the procedure of adoption. Sub-rule (5) of Rule 33 of the Rules provides that for the purposes of section 41 of the Act, 'court' implies a civil court, which has jurisdiction in matters of adoption and guardianship and may include the court of the district judge, family courts and city civil court. On behalf of re spondents, it is contended before us that Section 41 read with Rule 33 makes it clear that it is only that civil court which has powers of adoption and mainte nance, can exercise the power of giving a child in adoption under Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In this connec tion on behalf of respondents our atten tion is drawn to the provisions of Sec tions 9, 10 and 11 of the Hindu Adop tions and Maintenance Act, 1956. Clause (ii) of explanation to sub-section (5) of Section 9 of said Act provides that 'court' means the city civil Court or a district Court within the local limits of whose jurisdiction the child to be adoped ordinarily resides. Since in the present case both the petitioners are not Hindu as such it cannot be said that the pro visions of Hindu Adoptions and Main tenance Act, 1956, is applicable to it. Had both the parties been Hindu, it could be said that this suit would lie before District Judge, but in a suit filed by Muslim for adoption, the said Act cannot be said to be applicable. Apart from this, wherever Family Courts are constituted, Section 7 of Family Courts Act, 1984, confers the jurisdiction on it to decide such matters. Since, in District Almora, so far, there is no Family Court established, as such the jurisdiction of other competent courts is not barred. THEre is no 'city civil court' designated in the State of Uttarakhand, therefore, in that circumstance court of Civil Judge (Senior Division) being the principal civil court has the power to entertain the suit in question under Section 9 of Code of Civil Procedure, 1908, read with Ben gal, Agra, Assam Civil Courts Act, 1887.