- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.916 OF 2009 Smt. Kisabai Tulsiram Lokhande .... Petitioner Vs. State of Maharashtra & Ors. .... Respondents Shri P.M. Havnur for the Petitioner. Ms P.H. Kantharia, Addl. Public Prosecutor, for the State. Shri Vinod Joshi for Respondent No.4. S/Shri A.P. Mundargi with S.V. Kotwal for Respondent No.5. S/Shri P.K. Dhakepalkar, Senior Counsel, with Jaydeep Deo for Respondent No.6. CORAM: BILAL NAZKI & A.R. JOSHI, JJ. RESERVED ON : AUGUST 10, 2009 PRONOUNCED ON: NOVEMBER 4, 2009 ORDER (Per Bilal Nazki, J.): 1. The petitioner is the grand-mother of two female children who have been given in - 2 - adoption by some of the respondents to foreigners. The petitioner claims that the children have been given in adoption without her consent and, therefore, respondent Nos.2 and 3 should be directed to register a case against the other respondents under Sections 420, 468, 471, 365, 372, 188, 344, 201, 317 and 120-B of the Indian Penal Code. 2. At the outset, it may be said that the orders relating to adoption are not challenged in this petition and have not been challenged in any forum. Therefore, this Court would have to see whether the facts, as mentioned in the petition, disclose a case for registration of a FIR by the police. 3. The petitioner claims that her two grand-daughters named Komal and Ashwini were born on 17-7-1994 and 5-7-1999 respectively. Their mother has been missing since last four - 3 - years and their father died while they all were residing at Plot No.88, Budhwar Peth, Taluka Karad, District Satara. The petitioner sells vegetables and as she could not educate the grand-children due to her financial condition, she placed them in a remand home at Karad for the purpose of getting them educated. According to the petitioner, the remand home at Karad wrote to Child Welfare Committee, Satara for rehabilitation and the Child Welfare Committee admitted the grand-children to Preet Mandir. The said Preet Mandir conspired with the Child Welfare Committee, Satara, the Adoption Co-ordination Agency and the Central Adoption Resource Agency and an advertisement was issued in "Dainik Alkya" on 3-9-2004 to facilitate declaration that the children were destitute. Although the respondents knew that the petitioner was the grand-mother of the children and her details were available at the remand home, they issued the advertisement with - 4 - the sole purpose of giving in adoption the minor children. The petitioner is an illiterate person and does not read any newspaper. She complains that certain provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act") were flouted while giving the children in adoption. 4. Replies have been filed but we will deal first with the affidavit filed by Dr. (Mrs.) Bharati Anil Patil, the respondent No.5 herein and the Chairperson of the Child Welfare Committee at the relevant point of time. She has stated that on 3-7-2004 the Committee had visited the Observation Home at Karad and during this visit the petitioner along with her two grand-daughters approached them. The petitioner gave two applications requesting that the girls be admitted in the Observation Home at Karad. It was mentioned in these - 5 - applications that the father of the girls had expired and the mother was missing. It was also mentioned that the petitioner did not have her own house and was residing in a hutment and was selling vegetables for her livelihood. The Superintendent of the Observation Home gave his recommendations on the applications in that behalf. It was also pointed out that Ashwini was subjected to the offence of outraging of her modesty by one unknown person and, therefore, for security and well-being of these minors they be admitted in the Observation Home. As Ashwini was only five years old and there were no facilities to keep a child of such tender age in the Observation Home at Satara, it was desirable that the said girl be admitted in Preet Mandir at Pune. The Committee accepted the recommendations of the Superintendent. As both the sisters wanted to stay together, they were initially kept in the Observation Home at Satara. The petitioner had - 6 - also given her consent for the stay of the children in the Observation Home or in any other Institute in Maharashtra. In August, 2004 the Members of the Preet Mandir, Pune informed the Committee that there was a possibility of these girls being given in adoption in good families and for the said reason asked the Committee to give its no objection that the girls were free for adoption. The Committee was required to make inquiries to locate the mother of both the girls as the petitioner had expressed her inability to look after the girls. The affidavit further states that the Committee was interested in the welfare of both the girls and it did not want to come in the way of their adoption in good families. The Committee, however, decided to make efforts to find the whereabouts of the mother or any other relative of the girls who would be willing to take charge of these girls. The Preet Mandir showed - 7 - its willingness to publish an advertisement in a newspaper so that if any relative of the girls wanted to contact the Committee, they could do so. Accordingly, Preet Mandir issued an advertisement with photographs of the girls to that effect in the Daily Dainik Aikya, Satara, on 3-9-2004. The Committee considered the case report and the other circumstances relating to both these girls. The Committee also took into consideration the fact that the petitioner was hardly earning Rs.50/- per day and was not having even a home and, therefore, she could not secure the future of the girls. The Committee also took note of the fact that the father of the girl had died and the mother was not traceable. The grandmother, who was 65 years of age, was not even able to protect Ashwini from being subjected to molestation. The Committee thought that if the girls were given in adoption to a good family, they would be able to lead a normal and secured life. In - 8 - these circumstances, ultimately the children were given in adoption and the decision was taken in the best interest of the children. 5. The respondent No.4 has stated in its affidavit that CARA is monitoring the development of the children even after their adoption and in the case of Komal and Ashwini (the children without frontiers), the foreign agency has sent post placement reports of the siblings and the reports say that the children are happy and are bonded with their adoptive parents. They are going to school and adapting to the school environment; they are friendly, normal and having positive evolution. CARA has also received the adoption decree of Komal and Ashwini. 6. We have also been shown the reports pertaining to these children. The reports show that the children are vaccinated up-to-date and - 9 - their health is good. Initially they were treated for anemia and parasites as they were suffering from these two problems when they reached Spain. Their intellectual development is adequate for their age and they are bright and like to learn new things. Both of them are learning the language fast. They are both extrovert and mix easily with others and their schooling is normal. The conclusion drawn is that the adaptation by both the girls is good and quick; they are happy and creating tight bonds with their parents, who are constantly aware of the girls and their evolution. 7. The petitioner claims that even for an abandoned child, a two months waiting period is necessary before the child can be given in adoption in terms of Section 41(5)(b) of the Act. The learned counsel for the petitioner submits that although the children had not been surrendered for adoption, but even if it is - 10 - presumed to be a case of surrender, even then in terms of Section 41(5)(b) a period of two months had to be given to the petitioner to reconsider her decision. The learned counsel for the respondents submits that an advertisement was issued in the newspaper as the petitioner had not given an address at which she could be contacted or communicated. Even the photographs of the children were published in the local newspaper along with the advertisement so that if anybody had any objection, he/she could come forward with such objection. He submits that it is only after five years from adoption that the petitioner has come forward with ulterior motive. She was never interested in the welfare of the children and she had not even the capacity to take care of the children. 8. We have earlier said that we are not going into the legality or otherwise of the - 11 - adoption because the adoption is not challenged in the petition. Since the petitioner had herself surrendered the children and all the necessary formalities as provided under the law were complied with by the respondents and even an advertisement along with the photograph was also issued in the local newspaper before the children were given in adoption, we do not find that the action of the respondents in giving the children in adoption invites any criminal action. The complaint to the police made by the petitioner does not disclose any cognizable offence in the factual matrix of the case. However, if the petitioner is aggrieved by the decision of the respondents in giving her minor grand-daughters in adoption, she is at liberty to challenge the said decision in appropriate - 12 - forum. With these observations, the petition is disposed of. (BILAL NAZKI, J.) (A.R. JOSHI, J.)