Delhi High Court
Teesta Chattoraj vs Union Of India on 30 March, 2012
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 22.03.2012
% Judgment delivered on: 30.03.2012
+ W.P.(C) 2888/2011
TEESTA CHATTORAJ ..... Petitioner
Through: Mr. M. Dutta, Advocate
UNION OF INDIA ..... Respondent
Through: Mr. Ruchir Mishra, Advocate
HON'BLE MR. JUSTICE VIPIN SANGHI
It is not even the petitioner's case that Shri Abhijit Ghosh has, in that wider and natural sense, renounced the world. All that the petitioner contends is that Shri Abhijit Ghosh, her natural father, has not no concern with the petitioner any longer. Had the intention of the legislature been to exclude the consent of that parent, who may have cut off all his relationship with the minor child, on account of the divorce obtained by the parents, the legislature would not have used the expression "renounce the world" but would have used the words like "severed his or her relationship with the minor child" instead. It is not for this Court to read into the plain language used by the legislature, words which are not there.
the petitioner's mother could not have secured the right, at the time of her obtaining divorce from Shri Abhijit Ghosh, to claim that the petitioner was not the naturally born child of her natural father, Shri Abhijit Ghosh. The petitioner's mother also could not have taken away the petitioner's right to claim that Shri Abhijit Ghosh is her natural father. The petitioner's right to claim her status as the daughter and an heir of Shri Abhijit Ghosh also could not have been taken away by her mother by entering into a compromise with her natural father. The rights which inhere in the petitioner on account of her being a natural heir of her natural father continue to survive. The identity of the petitioner is derived by the fact that the petitioner is the naturally born child of her parents i.e. Shri Abhijit Ghosh and Smt. Rajeshwari Ghosh, now known as Smt. Rajeshwari Chattoraj. The settlement arrived at between the petitioner's parents at the time when they obtained the divorce cannot be said to include an implied consent by the petitioner's father to the giving in adoption of the petitioner to any other person.
Sections 5 and 6 of the HAMA. These provisions read as follows:-
"5. Adoptions to be regulated by this Chapter- (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
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."
37. It is pertinent to note that both Sections 5 and 6 of the HAMA begin with the words "no adoption shall be made........" and "no adoption shall be valid unless........." It is, therefore, clear that both these provisions are mandatory. From a reading of Section 5, it is clear that an adoption not made in accordance with the provisions of Chapter II of the HAMA is void. The adoption is not valid unless the person giving in adoption has the capacity to do so and the adoption is made in compliance with the conditions mentioned in Chapter II of the HAMA, which would include the condition mentioned in the proviso to Section 9(2) of the said Act.
38. For all the aforesaid reasons, I dismiss this petition leaving it open to the petitioner to comply with the objections raised by the RPO and to resubmit her application with the correct details, inter alia, with regard to her parentage. The parties are left to bear their respective costs.
(VIPIN SANGHI) JUDGE MARCH 30, 2012 sr/as