Raj Kumar Bukalsaria And Anr. vs The State Of Assam And 5 Ors.

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GAHC010165412018

2026:GAU-AS:6268
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5063/2018
RAJ KUMAR BUKALSARIA AND ANR.
S/O LT. SATYA NARAYAN BUKALSARIA
A PERMANENT RESIDENT OF RANGAGARA ROAD, P.O. TINSUKIA, P.S.
TINSUKIA, DIST. TINSUKIA, ASSAM,PIN - 786125.
2: SMTI. SUDHA DEVI BUKALSARIA
W/O SRI RAJ KUMAR BUKALSARIA
A PERMANENT RESIDENT OF RANGAGARA ROAD
P.O. TINSUKIA
P.S. TINSUKIA
DIST. TINSUKIA
ASSAM
PIN - 78612
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE LEARNED PUBLIC PROSECUTOR, ASSAM, GUWAHATI-1.
2:THE DIRECTORATE OF SOCIAL WELFARE (WOMEN AND CHILD
DEVELOPMENT SECTOR)
GOVT. OF ASSAM

REP. BY THE DIRECTOR
JANATA BHAWAN

DISPUR
GUWAHATI-06.
3:THE DISTRICT CHILD PROTECTION UNIT
TINSUKIA
SOCIAL WELFARE DEPARTMENT

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GOVT.OF ASSAM

REP. BY THE DISTRICT CHILD PROTECTION OFFICER
TINSUKIA
ASSAM
PIN - 786125.
4:THE UNION OF INDIA
REP. BY THE SECRETARY TO THE MINISTRY OF WOMEN AND CHILD
DEVELOPMENT
NEW DELHI-110001.
5:SRI RAJEN DHAN
CENTRE-CO-ORDINATOR
CHILDLINE DISTRICT CHILD PROTECTION UNIT
TINSUKIA

DIST. TINSUKIA
ASSAM
PIN - 786125.
6:SMTI. PALLAVI SAIKIA
D/O SRI DILIP SAIKIA

A RESIDNET OF VILL- DOIGRUNG
P.O.MORANGI
P.S. GOLAGHAT
DIST. GOLAGHAT
ASSAM
PIN - 785621
Advocate for the Petitioner : MR. S CHETIA, MR. A GOYAL,MR G KHANDELIA,MR A
CHOUDHURY
Advocate for the Respondent : PP, ASSAM, GA, ASSAM,ASSTT.S.G.I.,MRS. A GAYAN (CGC, R4
& R5),MR. N SHARMA (R6)

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:::BEFORE:::
HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

For the Petitioners : Mr. G. Khandelia, Advocate.


For the Respondents : Ms. M. Bhattacharjee, Addl. Sr. Govt.
Advocate.
Mr. K. Gogoi, P.P., Assam
Ms. A. Gayon, C.G.C.
Ms. N. Sharma, Advocate.


Date on which judgment is reserved : 09.01.2026

Date of pronouncement of judgment : 30.04.2026

Whether the pronouncement is
of the operative part of the judgment ? : NA

Whether the full judgment has been : Yes
pronounced ?

Judgment and Order (CAV)

Heard Mr. G. Khandelia, learned counsel, appearing for the petitioners. Also
heard Mr. K. Gogoi, learned Public Prosecutor, appearing for the respondent no.1;
Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, appearing for
the respondent nos.2 and 3; Ms. A. Gayon, learned C.G.C, appearing for the
respondent no.4; and Ms. N. Sarma, learned counsel, appearing for the Proforma
Respondent No.6.
2. The respondent no.5 has filed an affidavit directly to the Registry of this
Court, the same is also considered.

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3. The petitioners by way of instituting the present writ petition have prayed
for the following reliefs;
“(i) a writ in the nature of Mandamus and/or a Writ of like nature not be issued
restraining the Respondent No.3 from making any demand to the Petitioners to
surrender the child to the Respondent authorities and from taking any coercive steps
against the Petitioners who have adopted the child under a valid Deed of Adoption; and
ii) a Writ in the nature of Mandamus and/or a Writ of like nature should not be issued
declaring the adoption procedure as undertaken in the instant case to be a valid adoption
as it has been executed in compliance of the Hindu Adoption and Maintenance Act,
2015;
iii) a Writ in the nature of Mandamus and/or a Writ of like nature should not be issued
declaring the stand taken by the respondent authorities, that the instant adoption is
illegal, to be an erroneous one as the instant adoption does not attract the provisions of
the Adoption Regulation, 2017 in which the respondent authorities are stuck with;
iv) a Writ in the nature of Mandamus and/or a Writ of like nature should not be issued
directing the Respondent Authorities not to give any effect to the F.I.R dated 23.03.2018
and to declare it malafide and not maintainable as the section imposed in the said F.I.R
does not attract any offence at all against the petitioners;

v) a Writ in the nature of Certiorari and/or a Writ of like nature should not be issued
setting aside and quashing the impugned F.I.R dated 23.03.2018 as the ingredients of
section imposed in the said F.I.R does not attract at all against the petitioners;”
4. The facts in brief requisite for adjudication of the issues arising in the
present writ petition is noticed, as under ;

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The petitioners who are husband and wife, not being blessed with a child
even after long lapse of period after their marriage were desirous of adopting a child.
On the other hand, the Proforma Respondent No.6, had given birth to a male child
on 05.01.2018, and in absence of the father of the child, the Proforma Respondent
No.6 had to face much trouble at the time of delivery and thereafter to maintain the
child being an unmarried mother. Accordingly, the Proforma Respondent No.6 had
desire to give the child in adoption to a good couple. The petitioners, herein,
approached the Proforma Respondent No.6 and expressed their willingness to adopt
the male child and accordingly, with the consent of the Proforma Respondent No.6
and her family members, the petitioners adopted the male child and brought the
child from the hospital on 08.01.2018. Thereafter, religious ceremonies as mandated
to be performed for giving and taking in adoption a child including the “Dattak
Homan”, was performed by the petitioners on 02.02.2018. The child was named
Manan Bukalsaria. Subsequently on 17.03.2018, a Deed of Adoption was executed by
the petitioners and the Proforma Respondent No.6, in presence of witnesses and the
same was registered in the Office of the Sr. Sub-Registrar, Kamrup (Metro) at
Guwahati.
While the process for adoption was underway, the CHILDLINE Members
from the Office of the Respondent no.3, had visited the house of the petitioners and
raised objections with regard to the procedure adopted for adoption of the child.
Although the child was not rescued, the CHILDLINE Members who had visited the
house of the petitioners had required the petitioners to produce the child before the
respondent no.3. It was projected by the CHILDLINE Members that the procedure for

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adoption of the child was in violation of the provision of the Adoption Regulations,
2017. As the petitioners had not visited the Office of the Respondent No.3, the
Respondent No.5, herein, had lodged an Ejahar before the Tinsukia Police Station on
23.03.2018, inter alia, alleging, therein, that the adoption under taken by the
petitioners were illegal and a prayer was made for production of the male child along
with the petitioners.
The police on receipt of the said Ejahar, registered the same as Tinsukia P.
S. Case No. 359/2018, under Section 80 of Juvenile Justice (Care & Protection of
Children) Act, 2015. Although the petitioners had produced a copy of a Deed of
Adoption executed in the matter before the Respondent No.3, however, the
petitioners project that they were continuously being harassed by the Office of the
Respondent No.3. The petitioners were also issued with a notice under Sub Section 1
of Section 41 (A) Cr.P.C in connection with Tinsukia P. S. Case No. 359/2018.
The petitioners by contending that the adoption as made by them in the
matter being so made under the provisions of the Hindu Adoption and Maintenance
Act, 1956, the provisions of the Adoption Regulations, 2017, and the provisions of
the said Act of 2015, would not be attracted in their case and the respondent
authorities would have no jurisdiction in interfering the adoption so made. With the
said contentions, the petitioner have instituted the present writ petition.

5. Mr. G. Khandelia, learned counsel, appearing for the petitioners, by
reiterating the facts, noticed, hereinabove, has submitted that the adoption made by
the petitioners were so made in due compliance with the provisions of Hindu

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Adoption and Maintenance Act, 1956. By referring to the provisions of Section 6 of
the said Act, it is submitted that the same was duly complied with and accordingly, a
valid adoption had occasioned in the matter. Mr. G. Khandelia, further submits that
the provisions of the Act of 2015, along with the Regulations of 2017, would have no
application with regard to the adoption made by the petitioners. He submits that the
provisions of Sub Section (3) of Section 56 of the Act of 2015, clearly mandates that
the Act of 2015, shall not apply to the adoption of children made under the
provisions of the Hindu Adoption and Maintenance Act, 1956.
6. Mr. G. Khandelia, further submits that the child after being adopted by the
petitioners has been continuously residing with them and a bond has developed
between the petitioners and the male child and in the event, the respondent
authorities are permitted to have their way in the matter, the same would not be in
the interest of the child. Mr. G. Khandelia, has referred to a report submitted in the
matter by the Secretary DLSA Tinsukia, in pursuance to directions passed by this
Court, wherein, upon an inspection made, it was highlighted that the male child is
being raised in a healthy and child friendly environment by the petitioners.

7. Mr. G. Khandelia, has submitted that the Proforma Respondent No.6, has
filed an affidavit in the matter and on perusal of the same it would be evident that
she was unmarried girl and had given birth to a male child. The father of the male
child had left the deponent for living a solitary life and his whereabouts was not
known to the deponent or any other person. He further submits that the affidavit
filed in the matter by the Proforma Respondent No.6, would bring to the forefront

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that the adoption as involved in the present proceedings was made by the petitioners
with her due consentincluding the consent of her parents, inasmuch as, it was
projected that the mother of the Proforma Respondent No.6, had signed as a witness
in the Deed of Adoption executed in the matter, while her father was projected to be
present at the time of execution of the said document. He further submits that the
Proforma Respondent No.6, had also projected that the male child has become an
inseparable part of the petitioner’s family within a short duration and the separation
of the child from the petitioners would be against the interest of the child.

8. Mr. G. Khandelia, has further submitted that the criminal proceedings
instituted by the respondents against the petitioners is not sustainable, inasmuch as,
the same alleges violation of the provisions of the Act of 2015, when the said Act is
not attracted to the adoption undertaken by the petitioners.
9. Per contra the learned counsel for the Respondent Nos.4 and 5, has
submitted that the male child was born on 05.01.2018, and he was brought from the
hospital by the petitioners on 08.01.2018. It is highlighted that the Deed of Adoption
was executed only on 17.03.2018 and accordingly, for the period w.e.f., 08.01.2018
to 16.03.2018, the male child was kept by the petitioners illegally. It is submitted
that the adoption, accordingly was in violation of the provisions of the Act of 1956,
as well as the provisions of the Act of 2015. The respondents have further submitted
that the CHILDLINE Members from the Office of the Respondent No.3, during their
visit to the house of the petitioners, was furnished with a Notarized Deed of
Adoption made on 08.01.2018. It is submitted that the said Notarized Deed of

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Adoption carried no value and the same cannot alleviate the adoption to be one
made in compliance with the provisions of the Act of 1956. It is submitted that the
Respondent No.3 as well as the CHILDLINE Members, had taken steps in the matter
only with the view to protect the interest of the male child. Accordingly, it is
submitted that the proceedings instituted in the matter against the petitioners under
the provisions of the Act of 2015, be permitted to be taken to its logical conclusions
and the male child be permitted to be withdrawn from the custody of the petitioners
and kept with the CHILDLINE authorities.
10. I have heard the learned counsel for the parties and perused the materials
available on records.
11. The respondent authorities having projected the adoption made by the
petitioners, herein, to be in violation of the Adoption Regulations, 2017, this Court
would examine the provisions of the said Regulations of 2017, to appreciate the
submissions made by the learned counsels for the respondents. The Adoption
Regulations, 2017, was framed in exercise of powers conferred by Clause (c) of
Section 68 read with Clause (3) of Section 2 of the Juvenile Justice (Care &
Protection of Children) Act, 2015. Regulation 4 of the said Regulations, being
relevant is extracted, hereinbelow;
“ 4.Child eligible for adoption.- The following shall be eligible for adoption, namely:-
(a) any orphan or abandoned or surrendered child, declared legally free for adoption by
the Child Welfare Committee;
(b) a child of a relative defined under sub-section (52) of section 2 of the Act,
(c) child or children of spouse from earlier marriage, surrendered by the biological

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parent(s) for adoption by the step-parent.”
12. A perusal of the said provisions would reveal that a child eligible for
adoption under the provisions of the Regulations of 2017, is any orphan or
abandoned or surrendered child, declared legally free for adoption by the Child
Welfare Committee. Further, such child eligible for adoption can be the child of a
relative as defined under Sub Section (52) of Section 2 of the Act of 2015, and
further such child can also be a child of spouse from earlier marriage, surrendered by
biological parent(s) for adoption by the step parents.
A perusal of Regulation 4 of the Regulations of 2017, would reveal that the
same stands attracted with regard to a adoption made of children defined, therein.
13. The petitioners in the present proceedings have contended that the child
was adopted under the provisions of the Hindu Adoption and Maintenance Act, 1956,
Section 6 of the Act of 1956, lays down the Requisites for a valid adoption. Section 6
of the Act of 1956, being relevant is extracted hereinbelow;
“ 6. Requisites of a valid adoption . - No adoption shall be valid unless -(i)
the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned
in this Chapter.”
14. One of the requisite conditions for a valid adoption is that the person
giving in adoption, has the capacity to do so. Section 9 of the Act of 1956, deals with
regard to the issue as to persons capable of giving in adoption. The provisions of

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Section 9 (1) and 9 (2) of the Act of 1956, being relevant is extracted,
hereinbelow;
“ 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.
(2) Subject to the provisions 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.”
15. As noticed, hereinabove, the child was consented to be given in adoption
to the petitioners by the Proforma Respondent No.6, herein, and the consent of the
biological father of the male child was not obtained. The provision of Section 6 (b) of
the Hindu Minority & Guardianship Act of 1956,mandates that in the case of a
illegitimate boy or an illegitimate unmarried girl, the natural guardian would be the
mother and after her, the father.
16. It is a settled position of law that the expression“after”as occasioning in
the provisions of Section 6 (b) of the Hindu Minority & Guardianship Act of 1956,
does not necessarily mean “after the lifetime”, it would mean “in the absence of”, the
word absence referring to the father’s absence from the care of the minors property
or person for any reason, whatsoever.
17. As projected by the Proforma Respondent No.6, biological father of the
child had left her company and renounced the world and his whereabouts were not

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known either to her or to any other persons. Accordingly, the Proforma Respondent
No.6, can be validly recognized as the natural guardian of the child and she can act
validly on behalf of the minor. Accordingly, this Court is of the considered view that
the Proforma Respondent No.6 was capable of giving her child in adoption and her
such action in voluntarily giving the child in adoption to the petitioners cannot be
questioned.
18. This Court on a consideration of the stand of the respondents in the
matter finds that the same is to the effect that the adoption of the child as made by
the petitioners, was so made in violation of the provisions of the Act of 2015, as well
as the provisions of the Adoption Regulations of 2017. A perusal of Sub-Section (14)
of Section 2 of the Act of 2015, would reveal that the child taken in adoption by the
petitioners would not come within the purview of the said definition“ child in need
of care and protection ” . Further, in view of the express provisions of Sub Section
(3) of Section 56 of the Act of 2015, the adoption involved in the present writ
petition having been so done under the Provisions of Hindu Adoption and
Maintenance Act, 1956, the Act of 2015, would have no application to the said
adoption made by the petitioners. Accordingly, this Court is of the considered view
that the steps taken in the matter by the respondent authorities were so taken
without jurisdiction. More so when the Proforma Respondent No.6, by way of filing
an affidavit in the present proceedings had brought on record that the adoption
made by the petitioners was so made withher due consent as well as the consent of
her family members.
19. The respondent authorities have also questioned the adoption on account

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of the delay occasioning in execution of the Deed of Adoption by the petitioners and
the Proforma Respondent No.6. As noticed, hereinabove, on the date of adoption
was made, a Notarized Deed of Adoption was executed between the petitioners and
the Proforma Respondent No.6. However, subsequently, a proper Deed of Execution
was executed by the petitioners and the Proforma Respondent No.6.
20. On a perusal of the said Deed of Adoption, this Court finds that the same
was executed on 17.03.2018, and it confirms the valid adoption being made in the
matter. The mother of the Proforma Respondent No.6, is found to have signed as a
witness in the said Deed of Adoption which further fortifies the contentions of the
petitioners that the adoption, in question, was so made with the consent of the
Proforma Respondent No.6, and her family members.
Accordingly, in view of the above discussions, this Court holds that the
adoption of the child by the petitioners in the matter was an adoption so done under
the provisions of the Hindu Adoption and Maintenance Act, 1956, and the same
would not be covered by the provisions of the Juvenile Justice (Care & Protection of
Children) Act, 2015, as well as the Adoption Regulations, 2017.
21. The delay occasioning in the execution of the Deed of Adoption in the

considered view of this Court, can in no way be held to have vitiated the adoption
made in the matter, inasmuch as, it is projected that religious ceremonies requisite
for the purpose was carried out duly and the child had become a child of the
petitioners. In this connection this Court refers to the provision of Section 16 of the
Hindu Adoption and Maintenance Act, 1956. The provisions, thereof, being relevant is
extracted hereinbelow;

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“ 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.”

22. The execution of the Deed of Adoption having been admitted to by the
petitioners as well as the Proforma Respondent No.6, and the Proforma Respondent
No.6, having also projected before this Court that the same was executed by her out
of her own will and also with the consent of her parents, this Court shall presume
that the adoption has been made in compliance with the provisions of the Act of
1956, and a contrary position, thereto, was not established by the respondents,
herein.
23. In view of the above conclusions, this Court passes the following
directions;
(i) The adoption made in the matter by the petitioners,of the child born
to the Proforma Respondent No.6, is held to be a valid adoption made
under the provisions of the Hindu Adoption and Maintenance Act, 1956.
( ii) The steps taken by the respondent authorities more particularly the
respondent No.3, in the matter and also the institution of criminal
proceedings against the petitioners by the respondent No.5, are held to
have been so done without jurisdiction.
(iii) This Court further holds that the adoption made by the petitioners

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having been held to be an adoption made under the provisions of the
Hindu Adoption and Maintenance Act, 1956, the provisions of the
Juvenile Justice (Care & Protection of Children) Act, along with the
Regulations framed there under, shall not be attracted to such adoption
made by the petitioners in the matter.
(iv) The petitioners are at liberty to produce the present order before
the competent Court considering the criminal proceedings instituted
against the petitioners and pray for dropping of the same.
(v) It is provided that the respondents shall not in any manner disturb
the petitioners and the child and shall permit the child to live a normal
life with the petitioners, herein.
24. With the above observations and directions, the present writ petition
stands disposed of.

JUDGE
Comparing Assistant
Ranu
Boro
Digitally signed by Ranu Boro
DN: c=IN, o=Personal, postalCode=781005, l=Kamrup Metro, st=Assam, street=HOUSE
NO 25 JAPORIGOG, KRISHNANAGAR,GUWAHATI, Japorigog,
Dispur Assam India 781005 NEAR MASJID, title=0094, 2.5.4.20=c747c5c0d257d22064ef564859e1
ebec92d7edcfa1fcc678cbde562c68c9e94f, serialNumber=e8ee80fb826c508f1dcf3733
2bc0b9e247dba00f5758c2dde86f2e36159 f37d6, [email protected], cn=Ranu Boro
Date: 2026.05.26 15:19:12 +05'30'