1 wp11002.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 11002 OF 2010 1. Mr. Premanand s/o Janardan Bagwe, Age: 48 years, Occ: Service, R/o. B-202, Harshgiri Co-operative Housing Society, Rawalpada, Dahisar (E), Mumbai - 68. 2. Mrs. Priyanka w/o Premanand Bagwe, Age: 45 years, Occ: Housewife, R/o. B-202, Harshgiri Co-operative Housing Society, Rawalpada, Dahisar (E), Mumbai - 68. 3. JEEVAN ASHA CHARITABLE TRUSTS, ASHA SHISHU GRUH, An approved and registered Institution, Soloman Michael Kasbekar, Age: 35 years, having the orphanage at Rangnath Maharaj Nagar, Parbhani - 431 401. ..PETITIONERS -VERSUS- The State of Maharashtra, throgh the Secretary, Women & Child Development Department, Mantralaya, Mumbai. ..RESPONDENT ..... Mr. B.K. Patil, Advocate for petitioners. Mr. D.R. Korde, A.G.P. for respondent. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 20th January, 2011. 2 wp11002.10 ORAL JUDGMENT : Heard finally with consent by making Rule returnable forthwith. 2. Heard Mr. B.K. Patil, Advocate for petitioners and Mr. D.R. Korde, A.G.P. for respondent State of Maharashtra. 3. Petitioner Nos. 1 and 2 before this Court are parents who intend to adopt female child Jagruti alias Gauri. The child was found abandoned and was entrusted to Government recognized "Shelter Home" run by petitioner No.3. The intimation in this respect was given to Chairman of Child Welfare Committee, Parbhani by Selu Police Station on 11-05-2007. Chairman and two members of Child Welfare Committee, Parbhani have thereafter issued Destitute Declaration. Mr. Patil, Advocate also pointed out that alongwith petition, there is a copy of application for adoption submitted by petitioner Nos. 1 and 2 with necessary particulars with Home Study Report dated 02-02-2009 submitted by Ms. Vandana Patil, Social Worker, attached to Adoption Co-ordinating Agency, Mumbai. He points out that child is already in custody of petitioner Nos. 1 and 2 under Foster Care Agreement as per provisions of Section 42 read with Rule 36 of the Juvenile Justice 3 wp11002.10 (Care and Protection of Children) Act 2000 and Rules, 2007. He has also invited attention to Home Study Reports submitted by Ms. Vandana Patil on 12-08-2009 and 22-07-2010, in effort to show to this Court that petitioner Nos. 1 and 2 are looking after child properly and she is developing normally. He has also informed the Court that her performance in Nursery School is excellent. 4. By placing reliance upon unreported judgment of this Court in Writ Petition Nos.1347 of 2007, 3095 of 2007, 3999 of 2007 and 4717 of 2007, learned Counsel contends that in identical situation, this Court has found direction given by District Court to approach it after two years for adoption permission unsustainable. He has invited attention to Division Bench Judgment of this Court in case of Aniruddha M. Raikar & Anr. vs. Indian Council for Social Welfare & Anr. reported in 2007(5) Bom.C.R. 776 particularly Para 7(i) and Annexure-A with Judgment of Hon'ble Apex Court in the case of Lakshmi Kant Pandey vs. Union of India, reported in A.I.R. 1984 S.C. 469, to show the relevant circumstances to be looked into in this respect by any Court. He has also pointed out that earlier Division Bench Judgment of this Court in Javid Ghorashian vs. State of Maharashtra and another reported in AIR 2002 Bombay 1 in Para-13 made reference to some such circumstances. 4 wp11002.10 5. In this background, it is contention in present matter that application under Section 9(4) of Hindu Adoption and Maintenance Act, 1956 was filed by petitioners as per legal advise and as they wanted child in adoption, they sought that petitioner No.3 should be first appointed as guardian of that minor and then sought permission to take female child in adoption from said guardian. The exercise undertaken by Adhoc District Judge-1 Parbhani in impugned order dated 30-03-2010 is unsustainable. Adhoc District Judge-1 after appointment of Superintendent of petitioner No.3 as guardian ought to have granted necessary permission for adoption. He invites attention to consideration of some of the relevant circumstances in its order by that Court. He, therefore, prays for a direction to that Court to consider the application as filed further and to issue appropriate direction in relation to prayer for permission to adopt as made before it. 6. Learned A.G.P. has not disputed the legal argument as raised by other party. He also points out guidelines in respect of adoption issued by the Central Adoption Resource Authority in 2004 and Chapter-V from Rule 33 onwards in Juvenile Justice (Care and Protection of Children) Rules, 2007 (supra) considers the procedure to be followed for adoption. He also does not 5 wp11002.10 dispute that child Jagruti alias Gauri is already with petitioner Nos. 1 and 2 as per provisions of Rule 36 for pre-adoption foster care. 7. This Court in its unreported judgment dated 06-12-2007 in Writ Petition No.1347 of 2007 (supra) in identical circumstances found that other prayer in application needed to be looked into and the Court below was therefore, directed to dispose of those proceedings by considering prayers made therein. Here, child is in custody of petitioner Nos.1 and 2 since 12-02-2009 and as per police report dated 11-05-2007, she was found abandoned on 10-05-2007. Thus, her age as on today, not more than four years. 8. Looking to her age at which she had gone to stay with petitioner Nos.1 and 2 and her present age, it is obvious that adoption at the earliest, if possible, will be necessary in the interest of all. Petitioner Nos. 1 and 2 have also filed medical certificates to show that there is no possibility of any child being born to them in future. However, all these facts needs to be considered by Adhoc District Judge-1 Parbhani while disposing of application as filed before it finally. Unfortunately that has not been done. 6 wp11002.10 9. In this situation, the impugned judgment dated 30-03-2010 delivered by Adhoc District Judge-1 Parbhani to the extent it directs present petitioners to approach it after two years for seeking child in adoption, is quashed and set aside. The prayer for permission to take in adoption made by petitioners is restored to its file and to that extent proceedings in Civil M.A. (RJE) No.53 of 2009 are also restored by its file. Said Court shall look into all relevant aspects as indicated above, satisfy itself about propriety or otherwise of the proposed adoption and pass appropriate final orders in the matters. 10. As the matter pertains to adoption and considering tender age mentioned above, it will be proper if further orders in this respect are passed by that Court as early as possible and in any case, by 31-03-2011. 11. Petitioners are directed to appear before that Court on 31-01-2011 and to communicate this order to it and to abide by its further instructions in this matter. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE sut/Jan11/wp11002.10