Intricacies in the process of adoption in India – Bombay High Court

 on 18 03 2021 on 19 03 1 18 99 Cri WP 143.21J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO.143 OF 20211.Kripal Amrik SinghR at Shri Guru Singh Sabha Gurudwara Four Bungalows AndheriMumbai 400 053.]]]]2.Balwinder Kaur Kripal SinghSabharwal R at Shri Guru SinghSabha Gurudwara FourBungalows AndheriMumbai 400 053.]]]]] … PetitionersVersus1.The State of Maharashtra]2.Child Welfare Committee MumbaiSuburban District having office at ChemburChildren’s Home Campus V.N.Purav Marg Opp. AnushaktiNagar Bus Depot Mankhurd Mumbai 400 088.]]]]]]]3.Durgamiti Dharmendra BahadurSaha @ Heera SahaR at 2 401 Amber Building Suresh Nagar SRA LokhandwalaRoad in front of RTO Office FourBungalows AndheriMumbai 400 053.]]]]]]] … RespondentsAJN on 18 03 2021 on 19 03 2 18 99 Cri WP 143.21J.odt…Mr. Raja Thakare senior counsel with Mr. Siddharth Jagushte i bMr. Akash Kavade for the petitioner. Mr. J.P. Yagnik A.P.P. for the State.Mr. Karansingh B. Rajput for respondent No.2. Ms. Aishwarya Sharma for respondent No.3.Ms. Rashmi Kamble CWC Member present in court.… CORAM: S.S. SHINDE & MANISH PITALE JJ. RESERVED ON : 01ST MARCH 2021.PRONOUNCED ON: 18TH MARCH 2021.JUDGMENT: J.odtgirl child was born on 08 01 2019. When it was found that thebiological mother of the child i.e. respondent No.3 herein was notwilling to take care of the girl child an intimation was given to aNon Governmental Organizationviz. Childline.Pursuant to such intimation a letter dated 17 01 2019 was sent onbehalf of the NGO Childline to respondent No.2 Child WelfareCommitteeconstituted under the Juvenile JusticeAct 2015J.odt4.On 14 02 2019 when persons from the said NGOChildlinevisited the house of respondent No.3 as per the direction given byrespondent No.2 CWC it was found that the girl child was givenaway by respondent No.3 to the petitioners for which respondentNo.3 had received an amount of Rs.20 000 . In this situation theNGOChildline sent written communication to respondent No.3to take appropriate action in the matter whereupon respondentNo.2CWC immediately directed the NGOChildline to report thematter to the police. Respondent No.2 CWC also sought thepresence of respondent No.3 before it but respondent No.3 did notrespond. 5.It is in this backdrop that on 18 06 2019 an FIR came to beregistered at Amboli Police Station being C.R. No.1119against petitioner No.1 and respondent No.3 for offence underSection 80 of the Juvenile Justice Act.6.On 28 06 2019 the girl child was produced beforerespondent No.2CWC by the police and respondent No.3 was alsopresent. Respondent No.3 admitted before respondent No.2 CWCthat she had received an amount of Rs.40 000 from the petitionersfor handing over the girl child. Respondent No.2CWC in thesecircumstances directed the girl child to be handed over to “VatsalyaTrust” a Special Adoptive Agency. AJN on 18 03 2021 on 19 03 5 18 99 Cri WP 143.21J.odt7.Respondent No.3 filed an application before respondentNo.2CWC for custody of the girl child. Petitioner No.1 also filedapplications for meeting the girl child and for celebrating herbirthday. Respondent No.2 CWC directed the NGO to submit aSocial Investigation Report as contemplated under the JuvenileJustice Act which was submitted on 24 12 2019. In this report itwas stated that respondent No.3 had initially stated that she wasimpregnated by her friend. Later she stated that she was raped byher employer. Respondent No.3 stated that she had handed overthe girl child to the petitioners out of goodwill and that they hadgiven her financial help of about Rs.20 000 for the treatment andgroceries. The said report recorded the fact that the petitionersrelied upon the aforesaid notarized Deed of Adoption for theirclaim in respect of the girl child. It was observed in the report thatrespondent No.3 was possibly suffering from mental illness. 8.On 03 01 2020 respondent No.2CWC passed an orderrejecting the aforesaid applications of petitioner No.1 andrespondent No.3. Respondent No.3 filed a second applicationseeking custody of the girl child before respondent No.2 CWC wherein she claimed for the first time that she was physically andfinancially capable of taking care of the girl child. Petitioner No.1addressed a letter to respondent No.2 expressing that he had noobjection to the custody of the girl child being given to respondentAJN on 18 03 2021 on 19 03 6 18 99 Cri WP 143.21J.odtNo.3. In the interregnum the petitioners had filed a writ petitionbefore this court seeking custody of the girl child and at this stage petitioner No.1 expressed his willingness to withdraw the said writpetition. On 22 12 2020 this court passed an order in the aforesaidwrit petition being Writ Petition No.39919 permitting thepetitioners to withdraw the writ petition with liberty to file freshpetition. Thereafter the petitioners filed the present writ petitionon 02 02 2021 for a writ of habeas corpus and a direction torespondent No.2CWC to handover custody of the girl child tothem.9.In the present writ petition the petitioners have relied uponthe notarized Adoption Deed executed in their favour byrespondent No.3. It was stated that the petitioners had notcommitted any offence under Section 80 of the Juvenile Justice Actand to support this contention they relied upon Section 56(3)thereof which states that nothing in the Juvenile Justice Act shallapply to adoption of children made under the provisions of theHindu Adoption and Maintenance Act 1956J.odtpetition. By order dated 18 02 2021 advocate was appointed torepresent respondent No.2 CWC and the petitioners were allowedto have access to the girl child through video conferencing between4.00 p.m. and 6.00 p.m. on 24 02 2021. Thereafter the writpetition was finally heard on 01 03 2021. 11.Mr. Raja Thakare learned senior counsel appearing on behalfof the petitioners submitted that the writ petition deserved to beallowed because in the present case respondent No.3 i.e. thebiological mother of the girl child had willingly given the child inadoption to the petitioners by executing the aforesaid AdoptionDeed. It was submitted that the requirements for a valid adoptionas per the provisions of the Hindu Adoption Act were fully satisfiedin the facts and circumstances of the present case and therefore byoperation of Section 56(3) of the Juvenile Justice Act Section 80thereof did not apply in the case of the petitioners and therefore the registration of FIR against petitioner No.1 was whollymisplaced. It was further submitted that once it was found that thepetitioners had validly adopted the girl child there was nojurisdiction with respondent No.2CWC to have proceeded to takeaway the custody of the girl child. It was submitted that therefore the petition deserved to be allowed and respondent No.2 CWCought to be directed to hand over the custody of the girl child to thepetitioners. In order to support his contention learned seniorcounsel placed reliance on the judgment of the Hon’ble SupremeAJN on 18 03 2021 on 19 03 8 18 99 Cri WP 143.21J.odtCourt in the case of Mst. Param Pal Singh through Father v.National Insurance Company & Ors.112.Mr. Rajput learned counsel appointed to appear on behalf ofrespondent No.2CWC submitted that in the present case theprovisions of the aforesaid Act squarely applied particularly for thereason that the girl child in the present case was a child in need ofcare and protection as defined under Section 2(14) of the JuvenileJustice Act. It was submitted that the documents available on recordincluding the rozanamas of the proceedings before respondentNo.2 CWC clearly demonstrated that the girl child was sold by thebiological mother i.e. respondent No.3 to the petitioners and thatsuch an act could not be covered up on the basis of the saidpurported Adoption Deed. It was submitted that respondent No.2 CWC was clearly empowered to take all necessary steps for thesafety and security of the said girl child who was in need of her careand protection as per the provisions of the Juvenile Justice Act.Learned counsel stressed upon the objects and reasons of theJuvenile Justice Act which pertain to principles and proceduresrequired in the case of children in need of care and protection so asto ensure proper care protection development treatment and socialre integration of such children keeping in view the best interest ofthe children. 1(2013) 3 SCC 409.AJN on 18 03 2021 on 19 03 9 18 99 Cri WP 143.21J.odt13.Learned counsel appearing for respondent No.2 CWC laidmuch stress on the reports submitted by the NGO and theobservations made by the representatives of the NGO regarding thebackground in which respondent No.3 had given birth to the girl child and the manner in which she had accepted money for handingover the said girl child to the petitioners. On this basis it wassubmitted that reliance could not be placed on the notarizedAdoption Deed as proper procedure for adoption of the girl childought to have been undertaken by the petitioners. On this basis itwas submitted that the FIR was correctly registered againstpetitioner No.1 and respondent No.3 and that in the face of suchcriminal proceedings the present writ petition did not deservefavourable consideration. It was also submitted that the girl childcould not be said to be in illegal detention and therefore thepresent writ petition is not maintainable. Learned counsel placedreliance on the judgment of the Hon’ble Supreme Court in the casesof Exploitation of Children in Orphanages in State of Tamil Nadu in Re. v. Union of India & Ors. 2 and S. Vanitha v. DeputyCommissioner Bengaluru Urban District & Ors.314.Ms. Sharma learned counsel appeared on behalf ofrespondent No.3 and supported the contentions raised on behalf ofthe petitioners. We have also heard Mr. Yagnik learned A.P.P.appearing for the State. 2(2017) 7 SCC 57832020 SCC OnLine SC 1023AJN on 18 03 2021 on 19 03 10 18 99 Cri WP 143.21J.odt15.The petitioners in this writ petition are seeking a writ ofhabeas corpus and a consequent direction that the aforesaid girl child be handed over by respondent No.2CWC to them. Such awrit at the behest of the petitioners would be maintainable on thebasis that the custody of the child with respondent No.2CWC isillegal and that they are entitled to custody of the child. In order toreach findings on the said aspect it is necessary to refer to thedocuments on record as also the relevant provisions of the JuvenileJustice Act.16.The documents placed on record particularly the documentsbrought on record by respondent No.2 CWC show that respondentNo.3 i.e. the biological mother of the child immediately after thechildbirth had expressed her opinion that she was not interested intaking care of the girl child. This is evident from the writtencommunications submitted by the NGO to respondent No.2CWCand the visits of the representatives of the NGO. This is asignificant aspect of the present matter because the moment there ismaterial to show that the child is in a situation where her needs arenot likely to be taken care of by the parents such a child is in needof care and protection as defined under the provisions of theJuvenile Justice Act. Section 2(14)(v) of the Juvenile Justice Actreads as follows:AJN on 18 03 2021 on 19 03 11 18 99 Cri WP 143.21J.odt“2. Definitions. In this Act unless the contextotherwise required xxxxxx(14)“child in need of care and protection” means achild xxxxxx(v)who has a parent or guardian and suchparent or guardian is found to be unfit orincapacitated by the Committee or theBoard to care for and protect the safetyand well being of the child or”17.In the present case respondent No.3 i.e. the biological motherof the child had expressed her opinion immediately after the birth ofgirl child leading to the NGO and its representatives reporting thematter to respondent No.2 CWC. The reports sought byrespondent No.2 CWC from the NGO elaborately brought onrecord the unwillingness of respondent No.3 to take care of thechild thereby indicating that the said child was clearly a child inneed of care and protection as defined in the above quotedprovision of the Juvenile Justice Act. Consequently respondentNo.2CWC had the power and responsibility to take necessaryaction in the context of the said girl child. It is for this reason thatthe visits to the house of respondent No.3 were arranged so as toensure that respondent No.3 was taking care of the said child. 18.But on one such visit of representatives of the NGO the factabout respondent No.3 having given away the girl child to thepetitioners stood revealed. Respondent No.3 stated that she hadAJN on 18 03 2021 on 19 03 12 18 99 Cri WP 143.21J.odtgiven away the child and that she had received amounts from thepetitioners. This prima facie appeared to be a case of the child beingsold and therefore respondent No.2 CWC was justified in takingconsequent action in the matter. A perusal of the rozanamas of theproceedings before respondent No.2 CWC show that respondentNo.3 herself stated before respondent No.2 CWC on 28 06 2019that she had received an amount of Rs.40 000 from the petitionersand that she had given the girl child to them. For this reason theaforementioned FIR dated 18 06 2019 came to be registered againstpetitioner No.1 and respondent No.3 under Section 80 of theJuvenile Justice Act. The girl child was taken back from the custodyof the petitioners and she was handed over to Vatsalya Trust whichis a recognized Special Adoptive Agency.19.The petitioners have based their claim on the allegedvoluntarily giving away in adoption of the child by respondent No.3and the consequent “Adoption Deed” executed between the parties.A perusal of the said document dated 22 01 2019 shows that it ismerely a notarized document. It was strenuously contended onbehalf of the petitioners that adoption of the girl child in the factsand circumstances of the present case was absolutely valid and thattherefore the petitioners were entitled to avail of protection underthe specific provision under the Juvenile Justice Act i.e. Section56(3) thereof. The petitioners claimed that the child was adoptedunder the Hindu Adoption Act and that therefore the provisions ofAJN on 18 03 2021 on 19 03 13 18 99 Cri WP 143.21J.odtthe Juvenile Justice Act would not apply to the present case therebyshowing that the entire proceedings before respondent No.2 werenot in accordance with law and that therefore the writ petitionought to be allowed.20.We have considered the aforesaid notarized document purported to be an Adoption Deed as also the contentions raised onbehalf of the petitioners by relying upon Section 56(3) of theJuvenile Justice Act. We find that the said document nowhereindicates that the adoption is under the provisions of the HinduAdoption Act. Nothing is sought to be placed on record to indicatethat the requirements of the Hindu Adoption Act pertaining to avalid adoption were complied with in letter and spirit. It is onlyafter the aforesaid FIR stood registered against petitioner No.1 thatsuch a stand has been taken for the first time before this court. Weare of the opinion that by merely executing a notarized documentpurporting to be an Adoption Deed the petitioners cannot claimthat they have a right to hold custody of the girl child. This isparticularly in the backdrop of the fact that respondent No.3 i.e. thebiological mother of the girl child herself specifically conceded firstly before the representatives of the NGO when they visited herhome on the instructions of respondent No.2 CWC that she hadgiven away the girl child and received Rs.20 000 and secondly when she appeared before respondent No.2 CWC and stated thatshe had received Rs.40 000 from the petitioners and given awayAJN on 18 03 2021 on 19 03 14 18 99 Cri WP 143.21J.odtthe girl child. 21.Although respondent No.3 claimed that the amount wasgiven to her for her treatment and groceries the material on recordindicates that the child was given away to the petitioners inexchange of money. This is particularly so because the NGO hadreported to respondent No.2 CWC on 17 01 2019 itself thatrespondent No.3 was not inclined to take care of the girl child andthat there was necessity to take appropriate steps in the interest ofthe girl child. It is thereafter that on 22 01 2019 the aforesaidpurported Adoption Deed was executed the document was merelynotarized and the girl child was given away by respondent No.3 tothe petitioners upon accepting money from them. These factsclearly indicate that respondent No.2 CWC was indeed justified intaking action in the matter in terms of the Juvenile Justice Act.There is no doubt in our minds that the child was indeed a child inneed of care and protection as defined in Section 2(14)(v) of theJuvenile Justice Act. Respondent No.2 CWC has acted in terms ofthe mandate of the Juvenile Justice Act and in pursuance of theobjects and reasons for enactment of the said legislation which is toensure proper care protection development treatment and socialre integration of such children by keeping the best interest of thechildren in mind. 22.A perusal of the provisions of the Juvenile Justice Act wouldAJN on 18 03 2021 on 19 03 15 18 99 Cri WP 143.21J.odtshow that respondent No.2 CWC under Section 30 of the JuvenileJustice Act is required to ensure proper enquiry in respect of suchchildren who are in need of care and protection to ensure theirsafety and well being. 23.Clausestoof Section 30 enumerate the functionsand responsibilities of respondent No.2 CWC . We are of theopinion that in the present case respondent No.2 CWC acted infurtherance of such functions and responsibilities placed upon itunder the Juvenile Justice Act. Therefore respondent No.2 CWCwas justified in sending the girl child to the Special AdoptiveAgency in this case “Vatsalya Trust”.24.It is relevant to note here that as per Section 1(4) of theJuvenile Justice Act notwithstanding anything contained in anyother law in force the provisions of the said Act shall apply to allmatters concerning children in need of care and protection. Thesaid non obstante clause makes it abundantly clear that therespondent No.2 CWC has acted as per the mandate of law.25.Once we have reached the conclusion that in the present case the girl child was indeed in need of care and protection and thatrespondent No.2 CWC proceeded correctly on that basis itbecomes clear that the order dated 03 01 2020 was passed inexercise of powers of respondent No.2 CWC under the provisionsAJN on 18 03 2021 on 19 03 16 18 99 Cri WP 143.21J.odtof the Juvenile Justice Act. Even otherwise Section 101 of theJuvenile Justice Act provides for appeal that can be filed by anyperson aggrieved by an order passed by CWC. The petitionerscould have proceeded under the said provision if at all they had anygrievance in respect of the said order dated 03 01 2020 passed byrespondent No.2 CWC. Since the order passed by the respondentNo.2 CWC is in accordance with law and pursuant to the said order the girl child is in custody of the CWC it cannot be said that she isin improper or illegal custody. Hence the present writ petition forhabeas corpus must fail.26.Insofar as the judgment on which reliance was placed bylearned senior counsel appearing for the petitioners we find that thesaid judgment of the Hon’ble Supreme Court in the case of Mst.Param Pal Singhis clearly distinguishable on facts. In thesaid case an adopted person was claiming compensation under theprovisions of the Workmen’s Compensation Act 1923 in respect ofthe death of his adoptive father in an incident during the course ofemployment. The Hon’ble Supreme Court held that the adoptedson was entitled to the amount of compensation for the reason thatthe biological father of the said person had filed an affidavit of proofof adoption and he had offered himself for cross examination.Evidence was led on the issue of adoption and it was found that theoral evidence on record proved the ceremony performed when theadoption took place. It becomes clear that in the said case not onlyAJN on 18 03 2021 on 19 03 17 18 99 Cri WP 143.21J.odtwas there an Adoption Deed but there was evidence led before theWorkmen’s Compensation Commissioner Labour Court in theform of documentary and oral evidence to prove the factum ofadoption. In the present case such exercise has not beenundertaken before any competent court or authority and therefore the petitioners cannot rely upon the ratio of the said judgment insupport of their contention. 27.On the other hand learned counsel appearing for respondentNo.2 CWC correctly relied upon the judgments of the Hon’bleSupreme Court in the cases of Exploitation of Children inOrphanagesand S. Vanitha of the JuvenileJustice Act. The Hon’ble Supreme Court has made reference toDirective Principles of State Policy enumerated in the Constitutionof India while emphasizing upon the role of institutions establishedunder the provisions of the Juvenile Justice Act and the manner inwhich courts and all concerned institutions need to give effect to theprovisions of the Juvenile Justice Act. 28.In this backdrop we are of the considered opinion that sincethe girl child in the facts and circumstances of the present case is inAJN on 18 03 2021 on 19 03 18 18 99 Cri WP 143.21J.odtneed of care and protection which respondent No.2 CWC isproviding in terms of the provisions of the Juvenile Justice Act theprayers made on behalf of the petitioners cannot be granted. Wehave arrived at this conclusion keeping the best interest of the girl child as being of paramount significance. Hence we find that thereis no merit in the writ petition. Accordingly the writ petition isdismissed.29.We appreciate the sincere efforts taken by Mr. Karansingh B.Rajput the learned appointed advocate for respondent No.2 CWCand we quantify his fees at Rs.10 000 .30.The High Court Legal Services Committee Mumbai isdirected to pay the said amount to the appointed advocate Mr.Karansingh B. Rajput within four weeks from the date of receipt ofthis order.(MANISH PITALE J.) (S. S. SHINDE J.)AJN 

Summary: Adoption is a miraculous and a kind act of an individual which protects the life of another human being. The intention in itself plays a major role in every sector. Sometimes with a good intention people adopts, however sometimes with a wrongful intention which ultimately results in a criminal offense. Thus the process of adoption deals with a lot of intricacies, one such case is being dealt with by the Bombay High Court. In the case of Kripal Amrik Singh &amp; Ors. V. State of Maharashtra &amp; Anr., [CRIMINAL WRIT PETITION NO.143 OF 2021], the facts of the case initiates when the is a writ petition seeking a writ of habeas corpus and a direction to respondent Nos.1 and 2 to release minor child – “Bhavreet @ Bhavnoor Kaur” and for handing over her custody to the petitioners. The petitioners say that they adopted the said child when she was about two weeks old and that the actions taken against them by respondent Nos. 1 and 2 were not justified in the facts and circumstances of the case. The important facts, in this case, are that the aforementioned girl-child was born on January 8, 2019. When it was discovered that the biological mother of the child, respondent No. 3 herein, was unable to care for the girl-child, notice was given to Childline, a non-governmental agency. In response to this notification, respondent No.2 – Child Welfare Committee (“CWC”), established under the Juvenile Justice (Care and Protection of Children) Act, 2015 (“Juvenile Justice Act”), received a letter dated 17/01/2019 on behalf of the NGO – Childline. The fact that respondent No. 3 was unwilling to care for the child was stated in this letter, and she had agreed to either place the girl-child for adoption or keep her in an Ashram. The biological mother, respondent No. 3, was also mentioned in the letter as having the possibility of selling the girlchild. Respondent No.2-CWC took notice of the matter after receiving the written correspondence and ordered respondent No.3 to appear before it with the girl-child once a month. Respondent No.2-CWC also directed the aforementioned NGO to supervise respondent No.3’s activities by visiting her once a month. However, it appears that on January 22, 2019, respondent No.3 signed a notarized Adoption Deed in which the girl-child was allegedly given in adoption to the petitioners herein. The girl-child was given to the petitioners on this basis, and she was taken to Punjab. The petitioner claimed that by signing the Adoption deed, they assumed responsibility for the boy. It was argued that the conditions for a legal adoption under the Hindu Adoption Act were entirely met in the facts and circumstances of the case, and that, as a result of Section 56(3) of the Juvenile Justice Act, Section 80 thereof did not apply in the case of the petitioners, and that, as a result, the filing of the FIR against petitioner No. 1 was wholly inappropriate. It was further submitted that once it was found that the petitioners had validly adopted the girl-child, there was no jurisdiction with respondent No.2–CWC, to have proceeded to take away the custody of the girl-child. The respondent No.2 i.eCWC argued that the provisions of the aforementioned Act squarely applied in the present case, especially because the girl-child in question was a child in need of care and security, as specified by Section 2(14) of the Juvenile Justice Act. Respondent No. 3, the biological mother of the boy, voiced her opinion shortly after the birth of the girl-child, prompting the NGO and its members to report the matter to respondent No. 2-CWC. The reports obtained by respondent No.2-CWC from the NGO detailed respondent No.3’s refusal to care for the boy, showing that the child was obviously a child in need of care and protection as described in the above-mentioned section of the Juvenile Justice Act. The court had however held that “In this backdrop, we are of the considered opinion that since the girl-child, in the facts and circumstances of the present case, is in need of care and protection, which respondent No.2-CWC is providing in terms of the provisions of the Juvenile Justice Act, the prayers made on behalf of the petitioners cannot be granted. We have arrived at this conclusion keeping the best interest of the girlchild as being of paramount significance. Hence, we find that there is no merit in the writ petition. Accordingly, the writ petition is dismissed.” “We appreciate the sincere efforts taken by Mr. Karansingh B. Rajput, the learned appointed advocate for respondent No.2-CWC and we quantify his fees at Rs.10,000/-.”