1. ) 1. HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) 2. ) 2. GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) 1. ) 1. NIESHAN A/L VIJAYAGOPAL (SIJIL KELAHIRAN : CH 77113) 2. ) 2. VIJAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) 3. ) JA

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN NO: PA-12B-15-09/2020 Dalam Perkara Akta Pengangkatan 1952 (Semakan tahun 2001) Dan Dalam Perkara NIESHAN A/L VIJAYAGOPAL Yang Akan Dikenali Sebagai NIESHAN HANESHPAL SINGH SAINI Dan Dalam Perkara mengenai Aturan 7 Kaedah 2 kaedah-Kaedah Mahkamah 2012 ANTARA . HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) . GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ..PERAYU-PERAYU DAN . NIESHAN A/L VIJAYAGOPAL (SIJIL KELAHIRAN : CH 77113) . VIJAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI GEORGETOWN DALAM NEGERI PULAU PINANG GUAMAN NO: PA-58-45-12/2019 Dalam Perkara Akta Pengangkatan 1952 (Semakan tahun 2001) Dan Dalam Perkara NIESHAN A/L VIJAYAGOPAL Yang Akan Dikenali Sebagai NIESHAN HANESHPAL SINGH SAINI Dan Dalam Perkara mengenai Aturan 7 Kaedah 2 kaedah-Kaedah Mahkamah 2012 ANTARA . HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) . GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ..PLAINTIF-PLAINTIF DAN . NIESHAN A/L VISAYAGOPAL (SIJIL KELAHIRAN : CH 77113) . VISAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...DEFENDAN-DEFENDAN) DIDENGAR BERSAMA DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN NO: PA-12B-16-09/2020 Dalam Perkara Akta Pengangkatan 1952 (Semakan tahun 2001) Dan Dalam Perkara DHAANYA VIJAYAGOPAL Yang Akan Dikenali Sebagai DHAANYA HANESHPAL SINGH SAINI Dan Dalam Perkara mengenai Aturan 7 Kaedah 2 kaedah-Kaedah Mahkamah 2012 ANTARA 1. HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) 2. GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ..PERAYU-PERAYU DAN 1. DHAANYA VIJAYAGOPAL (SIJIL KELAHIRAN : CJ52563) 2. VISAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) 3. JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI GEORGETOWN DALAM NEGERI PULAU PINANG GUAMAN NO: PA-58-46-12/2019 Dalam Perkara Akta Pengangkatan 1952 (Semakan tahun 2001) Dan Dalam Perkara DHAANYA VIJAYAGOPAL Yang Akan Dikenali Sebagai DHAANYA HANESHPAL SINGH SAINI Dan Dalam Perkara mengenai Aturan 7 Kaedah 2 kaedah-Kaedah Mahkamah 2012 ANTARA 1. HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) 2. GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ... PLAINTIF-PLAINTIF DAN 1s DHAANYA VIJAYAGOPAL (SIJIL KELAHIRAN : CJ52563) . VIJAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...DEFENDAN-DEFENDAN) DIDENGAR BERSAMA DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN SIVIL NO: PA-12A-22-09/2020 ANTARA . HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ..PERAYU-PERAYU DAN . DHAANYA VIJAYAGOPAL (SIJIL KELAHIRAN : CJ52563) . VIJAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...RESPONDEN-RESPONDEN (DALAM PERKARA SAMAN PEMULA PENGANGKATAN NO: PA-58-46-12/2019 ANTARA . HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ... PLAINTIF-PLAINTIF DAN . DHAANYA VIJAYAGOPAL (SIJIL KELAHIRAN : CJ52563) . VIJAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ..DEFENDAN-DEFENDAN) DIDENGAR BERSAMA DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN SIVIL NO: PA-12A-23-09/2020 ANTARA . HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) . GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ...PERAYU-PERAYU DAN . NIESHAN VIJAYAGOPAL (SIJIL KELAHIRAN : CH 77113) . VIJAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...RESPONDEN-RESPONDEN (DALAM PERKARA SAMAN PEMULA PENGANGKATAN NO: PA-58-45-12/2019 ANTARA . HANESHPAL SINGH SAINI (NO. K/P: 900413-08-5991) . GAYATRI A/P SIVANESAN (NO. K/P: 831224-07-5536) ...PLAINTIF-PLAINTIF [1] [2] [3] [4] DAN . NIESHAN A/L VIJAYAGOPAL (SIJIL KELAHIRAN : CH 77113) . VISAYAGOPAL A/L NADARAJAN (NO. K/P: 781117-02-5899) . JABATAN KEBAJIKAN MASYARAKAT TIMUR LAUT ...DEFENDAN-DEFENDAN) GROUNDS OF JUDGMENT Introduction These are 4 appeals arising from 2 suits in the Sessions Court pertaining to the same matter. They were heard together at first instance before the Sessions Court and, likewise, on appeal before the High Court. After hearing the respective parties’ submissions, | dismissed all 4 appeals. These are the grounds for my decisions. Background The background facts are as follows. The matter pertains to the applications to adopt 2 siblings: Nieshan a/l Vijayagopal (“Nieshan”) [d.o.b. 07.03.2010] and Dhaanya Vijayagopal (“Dhaanya”) [d.o.b. 31.01.2011]. The Plaintiffs/Appellants are the children’s mother, Gayathri a/p Sivanesan, and their step-father (Gayathri’s present husband), Haneshpal Singh Saini. As Gayathri is their mother, there is actually only one applicant seeking to adopt the children, that is Haneshpal. Nieshan and Dhaanya are Gayathri’s children from her previous marriage to Vijayagopal a/l Nadarajan, their father. He is the 2" [5] [6] [7] [8] [9] Defendant/Respondent. Not long after the children were born, the couple separated. Gayathri moved out with the children to stay with her parents. The marriage ended in a divorce in 2016. Gayathri was given custody of the children. Vijayagopal has reasonable access to them vide a court order dated 17/10/2016. Gayathri has since moved on with her life. She met and has been in a relationship with Haneshpal since 2017. They were married in 2019. Haneshpal has been the father figure to the children from the outset of their relationship. He now wishes to adopt the children as his own. Hence, the applications in the court below. Gayathri claims that Vijayagopal has been an absent father ever since they separated. Even with the court order dated 17/10/2016 granting him reasonable access to the children after their divorce, he has hardly visited the children. Originating Summons Haneshpal and Gayathri filed 2 originating summonses in the Sessions Court: one for the adoption Nieshan and the one for Dhaanya. One of the condition for adoption is that the parents must consent to the proposed adoption. In this case, Vijayagopal, the father, refused to give his consent. Notices of Application This moved the Plaintiff file a Notices of Application in each case for the Court to make an order to dispense with Vijayagopal’s consent. Sessions Court’s Decisions [10] The learned Sessions Court Judge dismissed the Notices of Applications to dispense with Vijayagopal’s consent. With that, the Originating Summonses were, as a matter of course, dismissed. Hence, the appeals to the High Court. Appeals [11] The references for the 4 Appeals with the corresponding the Originating Summons and Notices of Application are summarised as follows: Re. Nieshan: Originating Summons (Adoption) PA-58-45-12/2019 - Appeal for Originating Summons (Adoption) PA-12B-15-09/2020 - Appeal for Notice of Application (Dispensation of Consent) PA-12B-23-09/2020 Re. Dhaanya: Originating Summons (Adoption) PA-58-46-12/2019 - Appeal for Originating Summons (Adoption) PA-12B-16-09/2020 - Appeal for Notice of Application (Dispensation of Consent) PA-12B-22-09/2020 Consent [12] In an adoption application, there two main factors to consider. First, there is the parents’ consent to give up their child for adoption. This is reflected in section 6(a) Adoption Act 1952 [“AA”]: “6. Matters with respect to which Court to be satisfied The Court before making an adoption order shall be satisfied— (a) that every person whose consent is necessary under this Act, and whose _consent_is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; ...” [13] Giving up of a child for adoption is a serious matter with far reaching and permanent consequences. The parents’ connection to the child, the lineage, the custody, the relationship and all the de jure and de facto rights as a parent are erased and assumed by the adoptive parents. [14] The situation is no less serious when the parents are divorced, as is the case here. The only real difference is that Vijayagopal, instead of having full custodial rights, now has right to reasonable right of access to his children. Other than that, he is still every bit the father to his children. [15] That is why the consent of both parents is mandatory and of paramount importance. Sub-sections 5(1) Adoption Act 1952 [“AA”] provides as follows: “5. Consents to adoptions (1) Except as provided in this section, an adoption order shall not be made except with the consent of every person or body of persons who is a parent or guardian of the child in respect of whom the application is made or who is liable to contribute to the support of the child and an adoption order shall_not_be made upon the application of one of two spouses without the consent of the other of them: ...” [16] Vijayagopal has not consented to the adoption. He appointed a solicitor to resist the originating summonses and had _ himself appeared in the Sessions Court when the matter was heard at first instance to register his objection. Welfare [17] Second, there is the welfare of the child (s.6(b) AA). This is reflected in section 6 Adoption Act 1952 [“AA”] which reads as follows: “6. Matters with respect to which Court to be satisfied The Court before making an adoption order shall be satisfied— (b) that the order if made will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child; ...” [18] In Sean O’Casey Patterson v Chan Hoong Poh & Ors [2011] 3 CLJ 722, the Federal Court acknowledged this ‘welfare principle’ as one of the factors to consider in adoption cases in the following passage: 10 [83] According to Halsbury’s Laws of England, 4th edn, reissue (Mackay edition), para 443 the term, “welfare principle” is a set of factors used when “a court determines any question with respect to the upbringing of a child or the administration of a child’s property or the application of any income arising from it, the child’s welfare must be the court’s paramount consideration”. In the English Children Act 1989, under the heading ‘welfare of the child’ is a set of factors that must be taken into account when deciding on such cases. These are for example: the wishes of the child; his feelings; his age; his sex and his background and the capabilities of the parties involved. Thus, this term “welfare principle” relates to certain factors to be considered and their priority during deliberation in such cases. [56] And in respect of the welfare of the child, we would adopt what was stated by Chan Sek Keong JC (as he then was) in the Singapore case of Tan Siew Kee v. Chua Ah Boey [1987] 1 LNS 1h The expression ‘welfare’ under section 3 of the Guardianship of Infant Act (Cap 122, 1985 Ed.) is to be taken in its widest sense. It means the general well-being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, comfort and security also go to make up his wellbeing. A loving parent with a stable home is conducive to the attainment of such well-being. It is not to be measured in monetary terms.” 11 [19] Presently, the children are living with and are well cared for by Gayathri and Haneshpal. Dispensation with Consent [20] The law does recognise that there are exceptional circumstances where the consent of one or both of the parents can justifiably be dispensed with by order of court. The proviso to section 5(1) AA reads as follows: “5. Consents to adoptions Provided that the Court may dispense with any consent required by this section if satisfied- ...” Relied on 2 Limbs [21] Given the gravity of parent’s loss in an involuntary surrender of their child for adoption, the dispensation with parental consent should only be granted where circumstances that would overtop the loss. The Plaintiffs, in their application for dispensation of Vijayagopal’s consent, have urged this court to do to so under 2 limbs of the proviso in section 5 AA: “(a) in the case of a parent or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child; ... (c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or...” 12 [22] The Plaintiffs say that Vijayagopal’s failure to regularly visit and keep abreast of the children’s well-being was tantamount to ‘neglect’. At the same time, they emphasised how Haneshpal has filled in the father figure role. They say that, in the circumstances, it was ‘unreasonable’ for Vijayagopal to withhold consent. Court's View [23] | am not able to agree with the Plaintiff's proposition, My reasons are as follows. Neglect [24] The term ‘neglect’, as with ‘abandonment’ and ‘persistent ill- treatment’, in proviso (a) in section 5 AA means much more than just being an inadequate father. [25] ‘Neglect’ infers that the child is under the parent’s ward. It means that the parent, having primary ward, has made no provisions for the child either personally or through a care provider (helper or family member) resulting in the child being in a state of neglect. Consent Not Unreasonably Withheld [26] There are no fixed definition as to when consent is being unreasonably withheld. It is, nevertheless, accepted that it should be assessment broadly encompassing all aspects of the child and all that may affect the child. One of the key aspects, as the Plaintiffs’ submit, is the child’s welfare. [27] This view was shared by the High Court in Re Baby M (An Infant) [1994] 1 LNS 195 which held as follows: 13 “... the question is whether in considering the welfare of the child, the mother is unnecessarily withholding consent. In Re W (an infant) 2, Lord Hailsham LC approved the following statement made by Davies LJ in Re B (an infant) 17 at p 1012, where his Lordship said: ... from nearly all the judgments ... it is apparent that one of the matters which should be taken into consideration is the welfare of the child. Perhaps it would be more accurate to say that one of the matters which a parent ought reasonably to take into consideration in deciding whether or not to withhold consent should be the prospects and outlook for the child if adopted as compared with those if unadopted; these prospects would include material and_ financial prospects, education, general surroundings, happiness, Stability of the home and the like. Lord Hodson observed (at p 73): 'l cannot improve on this statement which is, | think, consistent with an equally valuable statement of Lord Denning MR in Re L (an infant).' Further, Lord Hailsham LC in Re W (an infant) 2 said (at p 55): But, although welfare per se is not the test, the fact that a reasonable parent does not pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent would take it into account. It is decisive in those cases where a reasonable parent must so regard it. (Emphasis added.)” 14 Finding [28] The Plaintiffs have sought to characterise Vijayagopal as an absent father and Haneshpal as the ever present and good step-father. That may be true. However, it is also not unexpected given that Gayathri has custody of the children and has remarried Haneshpal. [29] Vijayagopal, on the other hand, does not have custody over the children. He attributes his lack of contact with the children to Gayathri frustrating his earlier attempts to see the children to a point where he simply gave up. [30] Enough said on the blame game. The issue here in not about the vindication of either party. It is about Haneshpal’s proposed adoption of the children. On this, the law (the proviso to section 5 AA) is clear that it will take a whole lot more than Vijayagopal being an inadequate father to justify involuntarily depriving him of being the father to his children. [31] More particularly, Vijayagopal cannot be said to have ‘neglected’ the children in the context of the proviso (a) to section 5 AA as he does not have ward over the children. We have also heard how well the children’s welfare have taken care of by Gayathri and Haneshpal — they are not in a state of ‘neglect’. [32] It is also apparent that the children’s quality of life is set. It is not going to diminish just because the adoption does not go through. In the premise, | don’t see how the withholding of consent by Vijayagopal can be said to be ‘unreasonable’ in terms of its effect on the children’s welfare and in the larger context proviso (c) of section 5 AA. 15 Agree with Sessions Court Judge [33] I, therefore, find myself in agreement with the learned Sessions Court Judge’s (“SCJ”) decision not to dispense with the father’s consent, dismissing the Notices of Application, and, as a matter of course, dismissing of the Originating Summons. [34] | am mindful that the SCJ arrived at her decision for what appears to be a different reason. She held that the Court cannot dispense with Vijayagopal’s consent because it would be inconsistent with his rights to reasonable access to the children under an existing court order in the divorce proceedings. [35] This was just an oblique way of saying the same thing: that there is, in the circumstances, no justification for involuntarily depriving Vijayagopal of his rights as father — in particular, his right to reasonable access to his children as a divorced father — under the proviso to section 5 AA. Decision [36] For the above reasons, | dismissed all 4 appeals. Dated 28'" September 2021 WON K CHONG Judicial Commissioner High Court of Malaya, Penang 16 PEGUAM-PEGUAM Bagi Pihak Perayu-Perayu: Razeena Rahumathullah Tetuan Lim, Ho, Cheong & Lok, Peguambela & Peguamcara No. 48-1 & 50-1, Lorong Usahaniaga 1, Taman Usahaniaga 1, Taman Usahaniaga, 14000 Bukit Mertajam, Pulau Pinang Bagi Pihak Responden Kedua: Albert a/l Antoni Tass Tetuan Albert & Associates Peguambela & Peguamcara No. 1F, Tingkat Atas, Lebuh Penang, 10200 Georgetown, Pulau Pinang Bagi pihak Jabatan Kebajikan Masyarakat Daerah Timur Laut: Halimahton binti Hashim / Mohamad Mahathir Jabatan Kebajikan Masyarakat Daerah Timur Laut Kompleks Masyarakat Penyayang, Jalan Utama,10460 Georgetown, Pulau Pinang 17