Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19.12.2023
+ CM(M) 1985/2023
SHIMPY SHARMA ..... Petitioner
Through: Mohd. Aman Khan Afghani
and Mohd. Arham, Advs. along
with petitioner (through VC)
versus
STATE OF NCT DELHI & ANR. ..... Respondents
Through: Ms.Rachita Garg, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed by the petitioner challenging the
Order dated 04.11.2023 passed by the learned Judge, Family Court-
01, South-East District, Saket Courts, Delhi (hereinafter referred to as
‘Family Court’) in GP No. 98/2023, titled Shimpy Sharma v. The
State of NCT Delhi & Ors. , whereby the learned Family court
directed the petitioner herein to inter alia implead the biological
parents of the minor child as party-respondents.
2. It is the case of the petitioner that the child was adopted by the
petitioner’s deceased brother and sister-in-law on 11.09.2019 through
a Registered Adoption Deed. Unfortunately, on 08.08.2022, the
brother of the petitioner died due to natural reasons. The sister-in-law
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of the petitioner also died on 11.09.2023. They have left behind the
child, the petitioner herein, and the mother of the petitioner, who is
aged about 68 years old, and is living with the petitioner. The
petitioner has thereafter taken the custody of the child and filed the
abovementioned petition, that is, GP No. 98/2023 under Section 10 of
the Hindu Minority and Guardianship Act, 1956, praying for her to be
declared as the guardian of the child.
3. The learned counsel for the petitioner submits that the
biological parents of the child, having already given the child up for
adoption to the petitioner’s brother and sister-in-law, no longer have
any say in the matter of guardianship of the child. He submits that,
therefore, they are neither necessary nor proper parties in the
abovementioned petition. In support, he places reliance on Sections 12
and 15 of the Hindu Adoptions and Maintenance Act, 1956
(hereinafter referred to as ‘HAMA’).
4. I find merit in the submission made by the learned counsel for
the petitioner.
5. Section 12 of the HAMA states that on adoption, the adopted
child shall be deemed to be the child of his or her adoptive parents for
all purposes, and all ties of the child in the family of his or her birth
shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family.
6. Section 15 of the HAMA states that no adoption which is
validly made can be cancelled by the adoptive parents or any other
person, nor can the adopted child renounce his or her status as such
and return to the family of his or her birth.
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7. In the present case, the learned Family Court, without
appreciating the above provisions and in a cursory manner, has passed
the Impugned Order directing the petitioner to implead the biological
parents of the minor child, observing that they appear to be necessary
parties.
8. The said Order, therefore, cannot be sustained. It is accordingly
set aside. However, during the course of the proceedings, if at any
stage, the learned Family Court considers it appropriate or necessary
to have a say of the biological parents in the petition, it shall always be
open to the learned Family Court to pass such appropriate orders in
accordance with law and for reasons to be recorded.
9. The petition is allowed in the above terms.
NAVIN CHAWLA, J
DECEMBER 19, 2023/ ns/am
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CM(M) 1985/2023
Digitally Signed
By:SUNIL
Signing Date:20.12.2023
17:51:19