Telangana High Court
Manchinapalli Jangaiah vs The State Of Telangana on 10 November, 2022
Bench: A.Abhishek Reddy, Juvvadi Sridevi
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
AND
THE HON'BLE SMT JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.21493 of 2021
ORDER:{Per the Hon'ble Sri Justice A.Abhishek Reddy} The present writ petition is filed seeking to declare the action of the respondent No.4 - Chairperson, Women Development and Child Welfare Committee in taking custody of the infant baby boy viz., Lokesh from the petitioners, who are the adoptive parents, as illegal and arbitrary.
The learned counsel for the petitioners has stated that one Mrs.Pushpa, the natural mother of the child - Lokesh, had handed over the child - Lokesh to the petitioners herein on 07.01.2021 and the petitioners are taking due care and bringing up the child. It is further stated that it is nobody's case that the child is not being taken proper care of by the petitioners. Merely because the lapses in adoption procedure are being followed, the same does not entail the respondent No.4 to take action, more so, on an anonymous call received on the Helpline (Childline) No.1098. It is further stated that the guidelines for adoption 2 AAR,J & JS,J W.P.No.21493 of 2021 issued by the authorities do not have the sanction of law and cannot be termed as Rules or Acts, that they are merely guidelines for adoption. That the authorities have acted in a posthaste manner without there being any complaint from the biological mother of the child, and the same is without any jurisdiction. That the action of the respondent No.4 in taking the custody of the child from the petitioners is illegal, bad, arbitrary and against the principles of law.
Per contra, the learned Government Pleader appearing on behalf of the respondents has stated that based on an anonymous call received from Childline 1098 regarding the illegal adoption of a child in Kadmur Village, Pudur Mandal, Vikarabad District, the respondent No.4 authorities have proceeded to the said village and have taken the custody of the child. That Section 58 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act') deals with the procedure for adoption by Prospective Parents living in India and Section 80 of the Act deals with the punitive measures for adoption without following the prescribed procedures. That as per Section 81 of the Act, any 3 AAR,J & JS,J W.P.No.21493 of 2021 person who sells or buys a child for any purpose shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees. The learned Government Pleader has further stated that in the present case, the petitioners have not taken the adoption of the child as per the provisions of the Act or the Hindu Adoptions And Maintenance Act, 1956, and therefore, prayed this Court to dismiss the writ petition.
On 09.09.2021, this Court has passed the following order:
"In this case, it is to be seen that the assertion in the writ petition is that the natural mother handover the custody of infant boy to the petitioners, who are bringing up the child for the last nine months. Therefore, Sub-section (4) of Section 1 of the Act has no application. In similar circumstances, the Madras High Court in the case of Kokila v. Child Welfare Officer (2019 SCC OnLine Mad 9425), wherein notice was issued to the adoptive parents, which was quashed. Apart from law, the fact that the infant child is being brought up by the petitioners, is not disputed by the 4th respondent. The interest of the child is paramount in matters of such nature. Even under law, assertions made in the affidavit in favour 4 AAR,J & JS,J W.P.No.21493 of 2021 of the petitioners require consideration. Anyhow, taking all the factors into consideration, the matter requires further consideration and further monitoring. However, since the child (sic) is being bringing up by the petitioners for the last nine months, the custody of the child be restored to the petitioners forthwith, in the best interest of the child. However, the 4th respondent can seek for production of the child once in every week or as and when required to safeguard the interest of the child and have overall supervision. The 4th respondent shall also file a report regarding the same."
Learned counsel for the petitioners has filed a Memo dated 09.11.2022, wherein it is stated that pursuant to the order of this Court dated 09.09.2021, the custody of the child has been given to the petitioners and the petitioners are taking good care of the said child as parents. That the child is staying with them from child's birth and the contention of the respondents that the child was purchased or sold by the natural mother is a false one.
Admittedly, the respondent No.4, without verifying the facts of the case, has taken away the custody of the child, based on an anonymous call received on Childline 1098. The authority concerned, before taking the custody of the child, should had 5 AAR,J & JS,J W.P.No.21493 of 2021 verified whether the petitioners are taking good care of the child or not, whether any complaint has been received from the biological mother of the child or not. Admittedly, there is no allegation that the child is not being properly taken care of or that he has been subjected to abuse by the petitioners herein at any point of time. Merely because the adoption procedure has not been followed or that there is some lacuna in the adoption procedure, the same cannot entail the respondent No.4 to take the custody of the child from the petitioners.
Having regard to the above, and taking into consideration that the custody of the child has already been given to the petitioners herein pursuant to the interim order passed by this Court on 09.09.2021, this Court is of the opinion that the custody of the child should continue with the petitioners in the best interest of the child and the writ petition needs to be allowed.
Accordingly, the writ petition is allowed. It is made clear that the respondent No.4 shall not interfere with the custody of the child with the petitioners unless and until he receives any specific complaint from the natural/biological mother of the child 6 AAR,J & JS,J W.P.No.21493 of 2021 or that the child is not being properly taken care of or being abused in any manner. In case the respondent No.4 receives any such complaint against the petitioners, he shall take necessary action against them in accordance with law. It is also made clear that the petitioners shall take proper and necessary care of the child including his educational needs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
_______________________ A.ABHISHEK REDDY, J ______________________ JUVVADI SRIDEVI, J Date: 10.11.2022 va