SRI SUJIT DATTA, SON OF LATE JOGESH CHANDRA DATTA, RESIDENT OF PRAGATI ROAD, KRISHNANAGAR, WARD NO. 14, AGARTALA MUNICIPAL COUNCIL, P.S. WEST AGARTALA, DISTRICT: WEST TRIPURA, PRESENTLY RESIDING UNDER CARE OF SMT. NAMITA DEB, WIFE OF SUMAN DEB, RESIDENT O Vs. SRI ARUN KUMAR DE, SON OF LATE LALIT MOHAN DE AND ANOTHER

JUDGEMENT

(1.) By means of this petition filed under Art. 227 of the Constitution of India the petitioner who is the biological father of the minor namely Krishna Datta has challenged the order dated 16.03.2015 delivered in Civil Misc. Adoption 12 of 2014 by the District Judge, West Tripura, Agartala.

(2.) The respondents No. 1 and 2 filed an application under Sec. 7 and 8 Read with Sec. 10 of the Hindu Adoptions and Maintenance Act, 1956 seeking 'adoption' of the said child. The wife of the petitioner expired on 20.11.2014 leaving behind one suckling male baby i.e Krishna when he was of 9(nine) days old. As the petitioner found it difficult in taking proper care he had intention to transfer the child from the family of its birth to the family of its adoption. The respondents No. 1 and 2 are married to each other. But despite their long married life, they had no child. They offered to adopt the child to the petitioner, their biological father. On 05.12.2014 by entering into a formal agreement followed by the rituals the petitioner and the respondent No. 2 decided to approach the court of the District Judge for formalising the adoption as per the provisions of the Hindu Adoption and Maintenance Act, 1956. But a preliminary question was raised in that proceeding whether such application was maintainable or not. By the impugned order dated 27.03.2015, it has been observed that the respondents No. 1 and 2 may approach the specialised adoption agency approved by the Government of Tripura to get the adoption. According to the petitioner the court below erred by asking the respondents No. 1 and 2 approach the specialised adoption agency and the Child Welfare Committee in as much as such procedure is alien to Hindu Adoption and Maintenance Act, 1956. There is no dispute that the adoption has been sought under the Hindu Adoption and Maintenance Act, 1956. Both the petitioner and the respondents are in the same boat so far the challenge against the said judgment is concerned. It is their contention that calling the child as the 'surrendered child' within the meaning of Rule 2(Q) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the court below without appreciating the relevant facts and circumstances has committed as serious error of law as well as of the jurisdiction. According to that definition, 'surrendered child' means a child who in the opinion of the committee is relinquished on account of physical, emotional and social factors beyond the control of the parent or guardian.

(3.) Mr. D. Saha, learned counsel appearing for the petitioner has submitted that his biological son cannot be brought within the definition of the 'surrendered child' as the child is not relinquished on account of physical, emotional and social factors beyond the control of the parent or guardian. It was a conscious decision of the petitioner for well being of the minor. The surrendered child is distinguishable and its definition, to some extent, is inflexible. As such, the observation that the minor is the surrendered child is absolutely unsustainable. Therefore, the direction of taking assistance of the specialised adoption agency and Child Welfare Committee is not at all warranted in the case. Hence, the impugned order rearises to be interfered with.