Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC - The Daily Guardian
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Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC

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Without leaving any room for even an iota of doubt, the Kerala High Court has in a learned, laudable, landmark and laudable judgment titled Thomas P & Anr. V. State of Kerala & Ors in CRL. A. No. 971 of 2019 which was delivered on November 5, 2021 has laid down explicitly that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, it must be mentioned that presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala. As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice M.R. Anitha of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.A has been filed against the order in O.P. (Adoption). No. 75/2016 dated 15.03.2016 of District Court, Kollam. According to the learned counsel for the appellant, respondents 2 and 3 are husband and wife. The 2nd respondent is the brother of the 2nd appellant and 3rd respondent is the wife of the 2nd respondent. The respondents 2 and 3 are the biological parents of Kumari, Maria Johnson aged 8 years old, who is the 4 th girl child of the said couple. The appellants are childless couple; both of them had undergone treatment for infertility for a long period. Doctors confirmed that it will not be possible for the appellants to become biological parent of a child. The 2nd appellant had to undergo uterus removal surgery. Hence, at present there is no chance for the 2nd appellant getting conceived. Kumari. Maria Johnson is the 4th girl child of the respondents 2 and 3. While so, the respondents 2 and 3 expressed their willingness to give in adoption of Kumari. Maria Johnson to the appellants. Hence, with a view to legalize the entire proceedings, O.P.(Adoption) No. 75/2016 has been filed by the appellants before the District Judge, Kollam. By the impugned order, the learned District Judge dismissed their O.P., finding that the court has no jurisdiction to entertain or adjudicate the issue of adoption mooted by the appellants and aggrieved by the same appellants approach this Court.”

As we see, the Bench then observes in para 3 that, “Heard both sides. Section 2(2) of the Juvenile Justice (Care and Protection of Children) , 2015 reads as follows: “‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”

Furthermore, the Bench then mentions in para 4 that, “Section 2(23) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows: “Court’ means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”

What’s more, the Bench then added in para 5 that, “Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:

“ ‘relative’, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent.””

Going ahead, the Bench then points out in para 6 that, “According to the learned counsel for the appellants, being the brother’s child of the 2nd appellant, the child supposed to be adopted will come within the definition of ‘relative’ defined under Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 56(2) is also relevant which reads as follows:

“Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.””

Moving on, the Bench then also stated in para 7 that, “Next the learned counsel drew my attention to Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act) which deals with the appeals and reads thus:

“Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)”.”

To put things in perspective, the Bench then states in para 8 that, “So this is the proper forum for entertaining an appeal against the impugned order. The learned counsel drew my attention to the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2014 ( In short the rules). Rule 40(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 reads as follows:

“For all matters relating to adoption, these rules and guidelines issued from time to time by the State Government and notified by the State Government shall apply. In the absence of such rules the guidelines issued by the Central Adoption Resource Agency and notified by the Central Government under subsection (3) of Section 41 of the Act shall apply.””

As it turned out, the Bench then lays bare in para 9 that, “Rule 41(C) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 deals with the procedure for adoption reads as follows:

“The specialised Adoption Agency along with the prospective adoptive parent(s) shall file a petition in the Court having jurisdiction for obtaining the necessary adoption orders under the Act and these Rules within ten days from the acceptance of referral by prospective adoptive parent(s) and shall take necessary steps to get the process of legal adoption completed at the earliest.””

In addition, the Bench then points out in para 10 that, “The learned counsel also drew my attention to the Adoption Regulations, 2017. Regulation 4 of Adoption Regulations, 2017 deals with child eligible for adoption reads as follows:

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 parent(s) for adoption by the step-parent.””

Not stopping here, the Bench then notes in para 11 that, “Regulation 5(7) of Adoption Regulations, 2017 reads as follows:

“ The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.””

Interestingly enough, the Bench then further noted in para 12 that, “The learned counsel further drew my attention to Regulation 55 Adoption Regulations, 2017 reads as follows:

“Legal procedure:- 1)The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of Section 2 of the Act, shall file an application in the competent Court under sub-section 2 of Section 56 of subsection (1) of Section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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