Telangana High Court
Kandala Padma vs The State Of Telangana on 23 September, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION Nos.22020, 19623, 21108, 21980,
21981, 17040, 22026, 22429 AND 23727 OF 2024
COMMON ORDER:
W.P.No.22020 OF 2024 Heard Sri T.Surya Satish, learned counsel appearing on behalf of the petitioners, Smt. K.Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 5, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.6 and learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 7 & 8.
2. The petitioners approached the Court seeking prayer as under:
"....to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the Respondents 7 and 8 in forcefully and illegally taking custody of the minor child D. Maanvika from the Petitioners and handing over 2 SN, J WP_22020 of 2024 & batch the child to the 2nd and 3rd Respondents on the basis of FIR. No. 579 of 2024 dated 22.05.2024 and the allegations made therein as illegal arbitrary violative of the principles of natural justice violative of Articles 14, 20(1) of the Constitution of India and to pass..."
3. The case of the petitioners in W.P.No.22020 of 2024 as per the averments made by the petitioners in the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named D. Maanvika. The petitioners herein were unable to have biological children and thus they decided to adopt a baby. Thereafter, the petitioners were informed through a common friend of the petitioners that there is a '9' days old baby girl put up for adoption by their biological parents as the biological parents were not in a position to raise the child. Therefore, as per the Hindu rites and customs and with the consent of the biological parents the petitioners herein had adopted the baby on 30.03.2024 3 SN, J WP_22020 of 2024 & batch
b) While things stood thus, on 22.05.2024 the 8th respondent had contacted the petitioners and informed them to report to the Medipally Police Station in relation to the FIR No. 579 of 2024 dated 22.05.2024 along with the child D. Maanvika. Later, the 8th respondent forcefully took the child from the petitioners' custody stating that the petitioners had brought the minor child illegally. Thereafter, the child was kept under the custody of respondent Nos. 2 and 3. Aggrieved by the said action of respondent nos. 7 and 8, the present Writ Petition is filed.
W.P.No.21980 OF 2024
4. Heard Sri T.Surya Satish, learned counsel appearing on behalf of the petitioner, Smt.K.Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 5, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.6 and learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 7 & 8.
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SN, J WP_22020 of 2024 & batch
5. The petitioner approached the Court seeking prayer as under:
"....to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the Respondents 7 and 8 in forcefully and illegally taking custody of the minor child Kandala Uma Maheshwari from the Petitioner and handing over the child to the 2nd and 3rd Respondents on the basis of FIR.No. 579 of 2024 dated 22. 05. 2024 and the allegations made therein as illegal arbitrary violative of the principles of natural justice violative of Articles 14, 20(1) of the Constitution of India and to pass..."
6. The case of the petitioner in W.P.No.21980 of 2024 as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named K. Uma Maheshwari. The petitioners herein were unable to have biological children and thus they decided to adopt a baby.
Thereafter, the petitioners were informed through a common friend of the petitioners that there is a '2' days old baby girl 5 SN, J WP_22020 of 2024 & batch put up for adoption by their biological parents as the biological parents were not in a position to raise the child. Therefore, as per the Hindu rites and customs and with the consent of the biological parents the petitioners herein had adopted the baby on 15.11.2021.
b) While things stood thus, on 22.05.2024 the 8th respondent had contacted the petitioners and informed them to report to the Medipally Police Station in relation to the FIR No. 579 of 2024 dated 22.05.2024 along with the child K. Uma Maheshwari. Later, the 8th respondent forcefully took the child from the petitioners' custody stating that the petitioners had brought the minor child illegally. Thereafter, the child was kept under the custody of respondent Nos. 2 and 3. Aggrieved by the said action of respondent nos. 7 and 8, the present Writ Petition is filed.
W.P.No.21981 OF 2024
7. Heard Sri T.Surya Satish, learned counsel appearing on behalf of the petitioners, Smt.K.Mani Deepika, learned Government Pleader for 6 SN, J WP_22020 of 2024 & batch Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 5, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.6 and learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 7 & 8.
8. The petitioners approached the Court seeking prayer as under:
"....to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the Respondents 7 and 8 in forcefully and illegally taking custody of the minor child S. Rishika from the Petitioners and handing over the child to the 2nd and 3rd Respondents on the basis of FIR No 579 of 2024 dated 22. 05. 2024 and the allegations made therein as illegal arbitrary violative of the principles of natural justice violative of Articles 14 20(1) of the Constitution of India and to pass such other orders as are deemed fit and proper in the interest of justice equity and good conscience..."
9. The case of the petitioners in W.P.No.21981 of 2024 as per the averments made by the petitioners in 7 SN, J WP_22020 of 2024 & batch the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named S. Rishika. The petitioners herein were unable to have biological children and thus they decided to adopt a baby. Thereafter, the petitioners were informed through a common friend of the petitioners that there is a '20' days old baby girl put up for adoption by their biological parents as the biological parents were not in a position to raise the child. Therefore, as per the Hindu rites and customs and with the consent of the biological parents the petitioners herein had adopted the baby on 26.01.2024
b) While things stood thus, on 22.05.2024 the 8th respondent had contacted the petitioners and informed them to report to the MedipallyPolice Station in relation to the FIR No. 579 of 2024 dated 22.05.2024 along with the child S.Rishika. Later, the 8th respondent forcefully took the child from the petitioners' custody stating that the petitioners had brought the minor child illegally. Thereafter, the child was kept under 8 SN, J WP_22020 of 2024 & batch the custody of respondent Nos. 2 and 3. Aggrieved by the said action of respondent nos. 7 and 8, the present Writ Petition is filed.
W.P.No.22026 OF 2024
10. Heard Sri T.Surya Satish, learned counsel appearing on behalf of the petitioners, Smt.K.Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 5, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.6 and learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 7 & 8.
11. The petitioners approached the Court seeking prayer as under:
"....to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the Respondents 7 and 8 in forcefully and illegally taking custody of the minor child B. Sresta from the Petitioners and handing over the child to the 2nd and 3rd Respondents on the basis of FIR. No. 579 of 2024, dated 22. 05. 2024 and the allegations 9 SN, J WP_22020 of 2024 & batch made therein as illegal arbitrary violative of the principles of natural justice violative of Articles 14, 20(1) of the Constitution of India and to pass..."
12. The case of the petitioners in W.P.No.22026 of 2024 as per the averments made by the petitioners in the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named B. Sresta. The petitioners herein were unable to have biological children and thus they decided to adopt a baby. Thereafter, the petitioners were informed through a common friend of the petitioners that there is a 2 days old baby girl put up for adoption by their biological parents as the biological parents were not in a position to raise the child. Therefore, as per the Hindu rites and customs and with the consent of the biological parents the petitioners herein had adopted the baby on 22.01.2024
b) While things stood thus, on 22.05.2024 the 8th respondent had contacted the petitioners and informed them 10 SN, J WP_22020 of 2024 & batch to report to the Medipally Police Station in relation to the FIR No. 579 of 2024 dated 22.05.2024 along with the child B. Sresta. Later, the 8th respondent forcefully took the child from the petitioners' custody stating that the petitioners had brought the minor child illegally. Thereafter, the child was kept under the custody of respondent Nos. 2 and 3. Aggrieved by the said action of respondent nos. 7 and 8, the present Writ Petition is filed.
W.P.No.22429 OF 2024
13. Heard Sri T.Surya Satish, learned counsel appearing on behalf of the petitioners, Smt.K.Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 5, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.6 and learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 7 & 8.
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14. The petitioners approached the Court seeking prayer as under:
"....to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the Respondents 7 and 8 in forcefully and illegally taking custody of the minor child K. Jhanavi Sahasra from the Petitioners and handing over the child to the 2nd and 3rd Respondents on the basis of FIR. No. 579 of 2024 dated 22/05/2024 and the allegations made therein as illegal arbitrary violative of the principles of natural justice violative of Articles 14, 20(1) of the Constitution of India and to pass..."
15. The case of the petitioners in W.P.No.22429 of 2024 as per the averments made by the petitioners in the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named K.Jhanavi Sahasra. The petitioners herein were unable to have biological children and thus they decided to adopt a baby. Thereafter, the petitioners were informed through a common friend of the petitioners that there is a '20' days old baby girl put up for adoption by their biological parents as the biological parents 12 SN, J WP_22020 of 2024 & batch were not in a position to raise the child. Therefore, as per the Hindu rites and customs and with the consent of the biological parents the petitioners herein had adopted the baby on 20.05.2024
b) While things stood thus, on 22.05.2024 the 8th respondent had contacted the petitioners and informed them to report to the Medipally Police Station in relation to the FIR No. 579 of 2024 dated 22.05.2024 along with the child K. Jhanavi Sahasra. Later, the 8th respondent forcefully took the child from the petitioners' custody stating that the petitioners had brought the minor child illegally. Thereafter, the child was kept under the custody of respondent Nos. 2 and 3. Aggrieved by the said action of respondent nos. 7 and 8, the present Writ Petition is filed.
W.P.No.17040 OF 2024
16. Heard Sri Veera Babu Gandu, learned counsel appearing on behalf of the petitioners, Smt.K.Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of 13 SN, J WP_22020 of 2024 & batch respondent Nos.1 to 3, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.4, learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 5 & 6 and Sri Mohammad Abdul Mateen Qureshi, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.7 on record.
17. The petitioners approached the Court seeking prayer as under:
"....to issue writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No. 5 and 6 in taking forcibly custody of the child and handover to respondent No 2and3 as being illegal contrary to law arbitrary violative of Article 20 of the Constitution of India set aside the same and restore custody of the child G. PARNIKA REDDY and consequently direct the respondents No 2 to 3 to handover to adoptive child the petitioners herein in the interest of justice and pass..."14
SN, J WP_22020 of 2024 & batch
18. The case of the petitioners in W.P.No.17040 of 2024 as per the averments made by the petitioners in the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named G. Pranika Reddy. The petitioners herein were unable to have biological children and thus they decided to adopt a baby. Since the petitioners were unable to have biological children, they used to perform poojas at Yellamma Temple, Secunderabad and during these poojas, the petitioners herein got acquainted with one of the priests named Satyanarayana. Subsequently, the said priest informed the petitioners that there is one unmarried Woman named Anusha who gave birth to a baby girl and she was willing to give that baby girl for adoption.
Subsequently, the petitioners decided to adopt the baby and as per the Hindu rites and customs and with the consent of the biological parent, the petitioners herein had adopted the baby on 07.08.2022.
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b) While things stood thus, the 6th respondent had forcibly taken the petitioners' child (G. Pranika Reddy) from the custody of the petitioners and kept her under the custody of respondents 2 and 3 on the basis of FIR in Cr.No. 579/2024. Thereafter, the petitioners had requested the respondents to hand over the custody of the child since their process is pending before the 7th respondent. However, the same was denied by the respondents. Therefore, aggrieved by the action of the respondent Nos. 5 to 6, the present Writ Petition is filed.
W.P.No.23727 OF 2024
19. Heard Sri Veera Babu Gandu, learned counsel appearing on behalf of the petitioners, Smt. K.Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 3, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.4, learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 5 & 6 and Sri Mohammad Abdul Mateen Qureshi, 16 SN, J WP_22020 of 2024 & batch learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.7 on record.
20. The petitioners approached the Court seeking prayer as under:
"....to issue writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No. 5 and 6 in taking forcibly custody of the child and handover to respondent No 2 and 3 as being illegal contrary to law arbitrary violative of Article 20 of the Constitution of India set aside the same and restore custody of the child G PARNIKA REDDY and consequently direct the respondents No 2 to 3 to handover to adoptive child the petitioners herein in the interest of justice and pass..."
21. The case of the petitioners in W.P.No.23727 of 2024 as per the averments made by the petitioners in the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named Puli Bargav Ram.17
SN, J WP_22020 of 2024 & batch The petitioners herein were unable to have biological children and thus they decided to adopt a baby. The 1st petitioner herein is a toddy topper and one such customer of the 1st petitioner had informed him that that there is one unmarried college student who gave birth to a baby boy on 26.07.2022 and she was willing to give that baby boy for adoption. Subsequently, the petitioners decided to adopt the baby and went to Abdullapurmet to meet the biological mother and thereafter had taken the baby for adoption with the consent of the biological mother.
b) While things stood thus, the 6th respondent had forcibly taken the petitioners' child (Puli Bargav Ram) from the custody of the petitioners and kept him under the custody of respondents 2 and 3 on the basis of FIR in Cr.No. 579/2024. Thereafter, the petitioners had requested the respondents to hand over the custody of the child since their process is pending before the 7th respondent. However, the same was denied by the respondents. Therefore, aggrieved by the action of the respondent Nos. 5 to 6, the present Writ Petition is filed.
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SN, J WP_22020 of 2024 & batch W.P.No.19623 OF 2024
22. Heard Sri C.Ruthwik Reddy, learned counsel appearing on behalf of the petitioners, Smt. K. Mani Deepika, learned Government Pleader for Women Development and Child Welfare appearing on behalf of respondent Nos.1 to 4, , learned Assistant Government Pleader for Home appearing on behalf of respondent Nos. 5 & 6, learned Assistant Government Pleader for Revenue appearing on behalf of respondent No.7 and Sri Mohammad Abdul Mateen Qureshi, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.8 on record.
23 The petitioners approached the Court seeking prayer as under:
"....to issue a writ or order or direction more particularly a Writ of Mandamus declaring the action of the respondents Nos. 2 to 6 in not handing over the child namely Master Adavi Naga Venkata Dhruva who was forcibly taken into their custody on 28/05/2024 to the petitioners as bad arbitrary illegal 19 SN, J WP_22020 of 2024 & batch contrary to law and unconstitutional and consequently direct the respondents to handover the child Master Adavi Naga Venkata Dhruva to the petitioners forthwith and pass..."
24. The case of the petitioners in W.P.No.19623 of 2024 as per the averments made by the petitioners in the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of a minor child named Naga Venkata Dhruva. The petitioners herein were unable to have biological children and thus they decided to adopt a baby, as such the petitioners had approached the Child Welfare Department to adopt a child, but on enquiry the petitioners got to know that there is a lengthy procedure and it will take seVeeral years to get a child for adoption. Thus, the petitioners had started searching for a child for adoption through private channels and also expressed their intention of adoption of a child to their family doctor Dr. Shobha Rani. Subsequently, Dr. Shobha Rani informed the petitioners that there is a new born baby boy available for adoption and that there was an 20 SN, J WP_22020 of 2024 & batch unknown or unclaimed biological parent who gave birth to the boy and the baby was an illegitimate child. Subsequently, on 27.08.2024, the petitioners went to the clinic of Dr. Shobha Rani and adopted the baby boy and named him Naga Venkata Dhruva.
b) While things stood thus, on 28.05.2024, Respondent No. 6 had contacted the petitioners informing them to report to the Medipally -PS along with the adopted child Naga Venkata Dhruva. Upon reporting at the police station, the respondent no. 5 and 6 had forcefully took the child from the petitioners' custody and handed him over to respondent No.3 and 4. Moreover, the respondents had not traced out the biological parents of Naga Venkata Dhruva and there are no claims as such. Therefore, aggrieved by the action of the respondent Nos. 2 to 6, the present Writ Petition is filed. W.P.No.21108 OF 2024
25. Heard Smt. C.Rakee Sridharan, learned counsel appearing on behalf of the petitioners, Smt. K. Mani Deepika, learned Government Pleader for Women 21 SN, J WP_22020 of 2024 & batch Development and Child Welfare appearing on behalf of respondent Nos.1 to 3, learned Assistant Government Pleader for Home appearing on behalf of respondent No. 4 and Sri Mohammad Abdul Mateen Qureshi, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.8 on record.
26. The petitioners approached the Court seeking prayer as under:
"....to issue a writ order or direction more particularly one in the nature of a writ of Mandamus declaring the action of the respondent Nos. 3 and 4 taking forcible custody of the child as being illegal contrary to law arbitrary violative of Article 20 of the constitution of India set aside the same and restore custody of the child Perugu Bavya shree the biological child of Respondent nos. 5 and 6 and the adoptive child of the petitioners herein in the interest of justice and pass..."
27. The case of the petitioners in W.P.No.21108 of 2024 as per the averments made by the petitioners in 22 SN, J WP_22020 of 2024 & batch the affidavit filed by the petitioners in support of the present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are the adoptive parents of three (03) year old girl child named Perugu Bhavya Sri. The petitioners herein were unable to have biological children and thus they decided to adopt a baby. Thereafter, the petitioners were informed through a reliable source that a one-week old baby with a partial physical disability was up for adoption as the biological parents were not financially sound and interested to raise the said child. Thus, the petitioners have adopted the said baby girl Perugu Bhavya Sri from her biological parents (i.e. the respondent Nos. 5 and 6) on 16.08.2022 through at Vasundara Hospital Kothapet, Vijayawada through Adoption deed dated 16.08.2022.Thus, under the premises of Vasundara Hospital, Kothapet, Vijayawada, the Biological parents/ Respondent No.5 and 6 handed over the child to the petitioners after giving 1,50,000/- to One Anuradha, who is said to be a nurse of the above-mentioned hospital premises.23
SN, J WP_22020 of 2024 & batch
b) While things stood thus, on 28.05. 2024, Respondent No. 4 had contacted the 1st petitioner and informed him to report to the Medipally -PS along with the adopted child Bhavya Sri. Later, the 4th respondent informed the petitioner that the execution of the adoption was not valid, and forcefully took the child from the petitioner's custody. Thereafter, from 29.05.2024, the child has been kept under the custody of respondent No.3 and since the child was in the custody, the petitioners had approached Respondent No.3 to visit the child but they denied the petitioners' request.
c) Further the petitioners made a representation dated 07.06.2024 for validation or the adoption proceedings but the Respondent No.3 had directed to execute adoption proceedings through Online website Cara. Com for valid Adoption and also informed that the petitioners cannot adopt the same child. Aggrieved by the said action of respondent nos. 3 and 4, the present Writ Petition is filed. PERUSED THE RECORD:
DISCUSSION AND CONCLUSION:-
DISCUSSION:-24
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28. Counter has been filed in W.P.No. 2181 of 2024 on behalf of respondent Nos. 1 to 6, relevant para Nos. 4, 5, 6 and 8 are extracted hereunder:-
4. In reply to para No.3 of the Writ Petitioners' affidavit, the petitioner was aware of the CARA portal and the Child Welfare Department's process for adopting a child.
Despite this knowledge, the petitioner chose to pursue the adoption through private channels, resulting in the procurement of the child from Dr.Shobha Rani (Accused in Crime No.59/2024). The petitioner never approached the respondent No.2 in the Writ Petition. This action constitutes a violation of Section 81 & 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by the petitioner.
"Sec 81, Sale and procurement of children for any purpose:
Any 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. Provided that where such offence is committed by a person having actual charge of the child, including employees of a hospital or nursing home or maternity home, the term of imprisonment shall not be less than three years and may extend up to seven years."25
SN, J WP_22020 of 2024 & batch "Sec 87, Abetment:
Whoever abets any offence under this act, if the act abetted is Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with the punishment provided for that offence.
Explanation: An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.
5. In reply to Para No. 4 of the Writ Petitioners' affidavit, it is observed that the child falls under the "Abandoned" category of "Child in need of care and protection". CNCP category as per Sec 2(14) (vi) "Who does not have parents and no one is willing to take care of and protect or who is abandoned or surrendered". Despite the Biological parents' whereabouts being untraceable since the child birth mentioned in Writ Petition and the minor child Rishika hasn't been registered in CARA portal (CARINGS) under schedule I & II. The criteria for adoption of a child under rule 4 of Adoption Regulations, 2017 explain as "The following shall be eligible for adoption, namely:
(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee.26
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(b) a child of a relative defined under clause (52) of section 2;
(c) child or children of spouse from earlier marriage, surrendered by the biological parents for adoption by the step-parent.
Due to the reasons mentioned above, the Child Rishika is ineligible for the adoption process because the Child Rishika hasn't been declared Legally free for adoption by Child Welfare Committee nor registered in CARINGS (Child Adoption Resource Information and Guidance System) the required procedures have not been followed. Moreover Petitioner's adherence to Adoption Rituals and Procedures is denied and they are put to strict proof thereof.
6. In reply to Para No 5 and 6 of the Writ Petitioners' affidavit, the documents obtained in regard to the child Rishika by the Writ Petitioner are considered bogus/invalid unless a registered deed was executed by both the biological parents and the adoptive parents. As per Sec 16 of Hindu Adoption and Maintenance Act 1956 states that "Presumption as to registered documents relating to adoption. Whenever any document registered 27 SN, J WP_22020 of 2024 & batch under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
8. In reply para No. 9 of the Writ Petitioners' affidavit, it is noted that although the petitioner began taking care of the child, they are ineligible for the adoption process because they failed to register on the CARA portal as per "Rule 5 of Adoption Regulations 2017:-
Eligibility criteria for prospective adoptive parents:
(1) The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, they shall not have any life threatening medical condition and they should not have been convicted in criminal act of any nature or accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital status and whether or not they have biological son or daughter, can adopt a child subject to the following, namely:28
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(a) The consent of both the spouses for the adoption shall be required, in case of a married couple;
(b) a single female can adopt a child of any gender:
(c) A single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption.
(4) The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility of prospective adoptive parents for children of different age groups as under:
Age of Child Maximum Maximum age of
composite age of single
prospective prospective
adoptive parents adoptive parent
(couple)
Up to 2 years 85 years 40 years
Above 2 and up to 90 years 45 years
4 years
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Above 4 and up to 100years 50 years
8 years
Above 8 and up to 110 years 55 years
18 years
Provided that the minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-
five years.
(5) In case of a couple, the composite age of the prospective adoptive parents shall be counted. (6) The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent. (7) Couples with two or more children shall only be considered for special needs children as specified in clause (25) of regulation 2, and hard to place children as stated in clause (13) of regulation 2 unless they are relatives or step- children.
(8) The prospective adoptive parents have to revalidate their Home stu report after a period of three years.
(9) The seniority of the prospective adoptive parents who have not received a single referral within three years shall be counted from their 30 SN, J WP_22020 of 2024 & batch date of registration except those who have crossed composite years of one hundred ten years.
Identical pleas have been put-forth by the respondents in all the counter affidavits as extracted above in the batch of present '9' Writ Petitions.
29. The pleas put-forth in the counter affidavit filed on behalf of the respondent Nos. 1 to 6 i.e., The State of Telangana, represented by its Principal Secretary, Women Development and Child Welfare Department Secretariat/ respondent No.1, The child Welfare Project Director/respondent No.2, The Integrated Child Protection Services (ICPS)/respondent No.3, The Central Adoption Resource Agency/respondent No.4, Child Welfare Committee/ respondent No.5 and The District Collector, Medchal-Malkajgiri District/respondent No.6 in all present batch of '9' writ petitions are as follows:-
i) The Children are not forcibly taken away from the writ petitioners, the petitioners had chosen to pursue the adoption 31 SN, J WP_22020 of 2024 & batch through private channels and did not follow the procedure of CARA portal and Child Welfare Committees process for adopting a child.
ii) The petitioners failed to approach the 2nd respondent.
iii) The action of the petitioners in adopting the children constitutes violation of Section 81 and 87 of the Juvenile Justice (Care and Protection of Children )Act, 2015.
iv) There is no registered deed executed by both the biological parents and adoptive parents.
v) The children fall under the "Abandoned" category of children " in need of care and protection".
vi) The children have not been legally free for adoption by respective Child Welfare committees.
vii) The children are not registered in Children Adoption Resources Information and Guidance System.
viii) The children are ineligible for the adoption process since they failed to register on the CARA portals as per Rule 5 of Adoptions Regulations, 2017.32
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ix) The case under Section 81, 87 and 88 of Juvenile Justice (Care and Protection of Children )Act, 2015 had been registered against few of the petitioners.
x) The adoption involved monetary transactions and purchase of children which is in clear violation of Section's 16, 9(1) (4) and (5) of the Hindu Adoptions and Maintenance Act, 1956.
30. The learned Government Pleader for Women Development and Child Welfare appearing on behalf of the respondent Nos. 1 to 6 in all the present batch of '9' Writ Petitions placing reliance on the averments made in the counter affidavits filed thereunder and on the basis of the submissions extracted above contend that all the Writ Petitioners in the batch of Writ Petitions are not entitled for the relief as prayed for thereunder.
31. The learned Assistant Government Pleader for Home appearing on behalf of the respondent Nos. 5 & 6 placing reliance on the counter filed by the SHO, Medipally P.S., Rachakonda Commissionerate in W.P.No. 19623 of 2024 contends that the identical 33 SN, J WP_22020 of 2024 & batch pleas as put-forth in the said counter affidavit apply in all the present Writ Petitions in so far as the said respondent is concerned in the present batch of Writ Petitions and the main pleas put-forth are as under:-
i) A complaint had been lodged with the 6th respondent in W.P.No. 19623 of 2024 on 22.05.2024 stating that one Dr. Shobha Rani and other have sold the child to needy people by receiving amounts and in pursuance to the said complaint Cr.No.579 of 2024 had been registered under Sections 370, 372, 373 read with 34 IPC and Sections 81, 87 and 88 of the Juvenile Justice (Care and protection of Children ) Act, 2015 against the said Dr. Shobha Rani.
ii) The investigation is under process after examination of some more witnesses accused would be arrested.
iii) The 6th respondent called the petitioners for the purpose of investigation, only the child was handed over to the Child Welfare Committee, Medchal-Malkajgiri District vide letter No.579/Cr/MK-4/RKD/2024, dated 29.05.2024 of the 6th respondent.
iv) Unless investigation is finalized the petitioners cannot have the custody of the baby boy.34
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v) The petitioner No.2 in W.P.No.19623 of 2024 confessed that he purchased baby boy/Master Adavi Naga Venkata Dhruva and paid Rs. 4 lakhs to the accused No.1 and the said baby boy was rescued from the petitioners and handed over to the Child Welfare Committee, Medchal, Malkajgiri District vide letter No.579/Cr/MK-4/RKD/2024, dated 29.05.2024 of the 6th respondent.
Based on the aforesaid submissions, learned Assistant Government Pleader appearing on behalf of the respondent Nos. 5 & 6 contends that all the Writ Petitions need to be dismissed.
32. The averments made in the counter affidavit filed by the CARA/respondent No.7 along with the State of Telangana Represented by its Principal Secretary Department of Women and Child Welfare Secretariat Hyderabad/respondent No.1, The Child Welfare Committee/respondent No.2, Directorate of Women Development and Child Welfare Department/respondent No.3 in W.P.No. 21108 of 2024 in brief are as under:-
35
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i) The biological parents of child Bhavya Shree are non-hindus as names are mentioned as Nazma Mohammed Aneef,
ii) The adoption of the said child was in violation of the Sections 81 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by the petitioners in W.P.No. 21108 of 2024, since the natural parents respondent Nos.5 and 6 there under offered their child for adoption and that the petitioners paid an amount of Rs. 1,50,000/- to one Anuradha, who is said to be a Nurse at Vasundara Hospital, Kothapet, Vijayawada and the petitioners had purchased the said infant from the Nurse Anuradha who is accused No.10 in Cr.No.579 of 2024.
iii) The child i.e., Bhavya Shree is a abandoned child and comes under the category of child "in need of care and protection" and the said child is ineligible for adoption process since she has not been declared legally free for adoption by the Child Welfare Committee, nor the child is registered under Child Adoption Resources Information and Guidance System.36
SN, J WP_22020 of 2024 & batch
iv) The required procedure of adoption had not been followed.
v) The documents obtained by the writ petitioners are invalid as the adoption deed is void.
vi) Rule 4 and 5 of the Adoptions Regulations, 2017 had not been followed.
vii) The respondent Nos. 1 to 3 acted in strict compliance with the provisions of Juvenile Justice Act and Adoption Regulation-2022
viii) The petitioner made online application for 7th respondent for adoption after the infant child/Bhavya Shree was rescued by the respondent no.4.
The learned counsel representing CARA based on the aforesaid pleas contended that the Writ Petitions need to be dismissed, since CARA guidelines had not been followed.
CONCLUSION:-
33. A bare perusal of the proceedings of the S.I. of Police, P.S.Medipally, Rachakonda Commissionarate vide letter No.579/Cr/MK-4/RKD/2024 addressed to the Child Welfare Committee, Medchal-Malkajgiri 37 SN, J WP_22020 of 2024 & batch District filed as material document on record clearly indicates that a request has been made by the S.I. of P.S.Medipally, Rachakonda Commissionarate for providing shelter, care and protection to the children mentioned in the letter, dated 29.05.2024, on the ground that the said children i.e., '4' male children and '10' female children had been rescued during the course of investigation on 28.05.2024 in pursuance to a case that was registered on 22.05.2024 in Cr.No. 579 of 2024 under Sections 370, 372, 373 read with Section 34 IPC and Sections 81, 87 and 88 of the Juvenile Justice ( Care and protection of Children ) Act, 2015.
34. It is the specific case of the respondent Nos. 7 & 8 in W.P.No.19623 of 2024 appearing on behalf of SHO, P.S.Medipally, Rachakonda Commissionerate, Medchal- Malkajgiri District that in view of the fact that the adoptions were not as per mandatory procedure of the Hindu Adoptions and Maintenance Act, 1956, and in pursuance to the complaint, dated 22.05.2024, and during the course of investigation, it came to light that the children were 38 SN, J WP_22020 of 2024 & batch purchased by paying amounts and since the same involved monetary transactions, there was a clear violation of Sections 81, 87, 88 of Juvenile Justice ( Care and protection of Children ) Act, 2015 and in view of the fact that enquiry was still pending and in the interest of welfare of children, the children were placed under the custody of respective child welfare committees to provide shelter, care and protection and accordingly, the custody of the children was handed over to the respective child welfare committees and hence, there is no illegality in the action of the SHO, P.S. Medipally, Rachakonda Commissionarate.
Few relevant provisions for adjudication of the present batch of Writ Petitions.
The Juvenile Justice ( Care and Protection of Children) Act, 2015 came into force on 15.01.2016 with a main objective to provide a framework for the care, protection, treatment, development and rehabilitation of child "in need of care and protection" and to protect the rights of the child who are in conflict with law and ensure that they are treated in a manner that is 39 SN, J WP_22020 of 2024 & batch consistent with a principles of justice, dignity and reformation in addition to other objectives.
i) Section 2(1) "abandoned child"- means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry;
ii) Section 2(ii) "adoption" -means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child;
iii) Section 2(12) "child" -means a person who has not completed eighteen years of age;
iv) Section 2(13) "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
v) Sections 2(40), "observation home" means an observation home established and maintained in every district or group of districts by a State Government, either by itself, or through a voluntary or non-governmental organisation, and 40 SN, J WP_22020 of 2024 & batch is registered as such, for the purposes specified in sub-section (1) of section 47;
vi ) Section 2(42) "orphan" means a child-
(i)who is without biological or adoptive parents or legal guardian; or
(ii)whose legal guardian is not willing to take, or capable of taking care of the child;
vii) Section 2 (56) "special home" means an institution established by a State Government or by a voluntary or non- governmental organisation, registered under section 48, for housing and providing rehabilitative services to children in conflict with law, who are found, through inquiry, to have committed an offence and are sent to such institution by an order of the Board;
viii) Section 2 (58) "sponsorship" means provision of supplementary support, financial or otherwise, to the families to meet the medical, educational and developmental needs of the child;
ix) Section 2(60) "surrendered child" means a child, who is relinquished by the parent or guardian to the Committee, on account of physical, emotional and social 41 SN, J WP_22020 of 2024 & batch factors beyond their control, and declared as such by the Committee;
(x) Section-56(3) of HAMA Act:- Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956.
(xi) Section 80- Punitive measures for adoption without following prescribed procedures.--If any person or organisation offers or gives or receives, any orphan, abandoned or surrendered child, for the purpose of adoption without following the provisions or procedures as provided in this Act, such person or organisation shall be punishable with imprisonment of either description for a term which may extend up to three years, or with fine of one lakh rupees, or with both: Provided in case where the offence is committed by a recognised adoption agency, in addition to the above punishment awarded to the persons in-charge of, and responsible for the conduct of the day-to-day affairs of the adoption agency, the registration of such agency under section 41 and its recognition under section 65 shall also be withdrawn for a minimum period of one year. 42
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xii) Section 81- Sale and procurement of children for any purpose.--Any 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: Provided that where such offence is committed by a person having actual charge of the child, including employees of a hospital or nursing home or maternity home, the term of imprisonment shall not be less than three years and may extend up to seven years
xiii) Section 87-Abetment--Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with the punishment provided for that offence. Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.
35. A bare perusal of the above referred provisions and the record in all the writ petitions clearly indicates that none of the children in any of the writ petitions fall 43 SN, J WP_22020 of 2024 & batch under the category of abandoned child as defined under Section 2(1) of the Act, nor Orphan child as defined under Section 2 (42) of the Act nor surrendered child as defined under section 2(60) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Juvenile Justice (care and protection of Children) Act, 2015 is intended for "child in conflict with law and child in need of care and protection". The children in all the subject matters in all the present writ petitions are neither children in conflict with law as explained under Section 2(13) of the Juvenile Justice (care and protection of Children) Act, 2015 nor they are the children in need of care and protection as explained under Section 2 (14) the Juvenile Justice (care and protection of Children) Act, 2015 ( referred to and extracted above) hence, this Court opines that the application of the said Act and invoking the provisions under the said Act is totally unwarranted and uncalled for in so far as the petitioners are concerned even as per the clear admission made in the counter affidavits filed on behalf 44 SN, J WP_22020 of 2024 & batch of the Respondent Nos. 1 to 6, that the children are abandoned children.
36. A bare perusal of the Sections 80, 81 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (referred to and extracted above) clearly indicate that the said sections refer in particular to three categories of children i.e., orphan, abandoned and surrendered children and the petitioners herein do not fall in any of the said three categories, even as per their definitions has spell out under Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
37. Section 2(14) of Juvenile Justice (Care and Protection of Children) Act, 2015 extracted hereunder:-
(i)who is found without any home or settled place of abode and without any ostensible means of subsistence; or
(ii)who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or
(iii)who resides with a person (whether a guardian of the child or not) and such person-45
SN, J WP_22020 of 2024 & batch
(a)has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b)has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c)has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
(iv)who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or
(v)who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or
(vi)who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or
(vii)who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or
(viii)who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or 46 SN, J WP_22020 of 2024 & batch
(ix)who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
(x)who is being or is likely to be abused for unconscionable gains; or
(xi)who is victim of or affected by any armed conflict, civil unrest or natural calamity; or
(xii)who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;
38. Section 2 (14)(v) of Juvenile Justice (Care and Protection of Children) Act, 2015 is extracted hereunder:-
(v)who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child;
39. Section 31 of the Juvenile Justice (care and protection of Children) Act, 2015 is extracted hereunder:-
"guardian" in relation to a child, means his natural guardian or any other person having, in the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognised by the 47 SN, J WP_22020 of 2024 & batch Committee or, as the case may be, the Board as a guardian in the course of proceedings;
40. A bare perusal of Section 2 (14) and Section 2 (14)(v) and Section 31 of the Juvenile Justice (care and protection of Children) Act, 2015 (referred to and extracted above) clearly indicates that a child can be said to be "in need of care and protection" provided child falls in either of the Clauses (i) to (xii) in the present case none of the children as borne on record fall in the clauses (i) to (xii) of Section 2(14) nor there is any material on record indicating a declaration by the Committee or Board as stipulated under Section 2(14)(v) of the Juvenile Justice (Care and Protection of Children) Act, 2015 that the parent/guardian of the corpus is unfit or incapacitated, so as to invoke the provisions of the Juvenile Justice (care and protection of Children) Act, 2015. Admittedly, the action of the respondent No.5 in proceeding against the petitioners is without any Authority or jurisdiction. 48
SN, J WP_22020 of 2024 & batch
41. A bare perusal of Section 56(3) (referred to and extracted above) clearly indicates that Sub section (3) of Section 56 categorically excludes the adoptions made under HAMA Act.
42. Learned Government Pleader for Women Development and Child Welfare, and the other learned counsel appearing on behalf of the respondents failed to convince this Court in so far as tracing the power or Authority of the respondents or the relevant provisions of law which enable the respondents to take custody of the children from the petitioners herein.
43. All the identical pleas put-forth in the counter affidavit filed by the official respondent No.1 (referred to and extracted above) and the pleas put-forth by the other respondents had in fact been considered by the Hon'ble Division Bench of Bombay High Court in its judgment dated 22.07.2024 in Leelendra Deju Shetty & Anr. Vs. The State of Maharashtra & Ors in Criminal Writ Petition No.2487 of 2024 and batch. 49
SN, J WP_22020 of 2024 & batch In the said batch of three Criminal Writ Petitions filed seeking issuance of writ of habeas corpus directing the concerned Child Welfare Committee and in turn, "Baal Asha Trust", to produce the child as it is the case of the each of the petitioner in the said three Criminal Writ Petitions that the detention of the child in "Baal Asha Trust" by Child Welfare Committee is illegal and unauthorized in law. In the said three Criminal Writ Petitions, the prayer sought for was that the custody of the child should be handed over by the Child Welfare Committee and Baal Aasha Trust to them so that, the child is not deprived of protection and care which the petitioners are ready to offer. The relevant para Nos. 17, 21, 22, 23, 26, 27, 28 and 29 of the said judgment are extracted hereunder:-
"17. The Child Welfare Committee constituted under Chapter V of the Act is empowered to exercise the powers and discharge the duties conferred in relation to the child in need of care and protection and the functions and responsibilities of the Committee include to take cognizance of and receive the children produced before it and conduct an inquiry on all the issues regarding the safety and well-being of the child. It is 50 SN, J WP_22020 of 2024 & batch pertinent to note that the Child Welfare Committee would exercise its power only in relation to the children in need of care and protection, as defined in Section 2(14) Under Chapter VI, when such a child is produced before the Committee (CWC), by any person, including any police officer or special juvenile police unit, public servant, Childline Services or any voluntary or NGO or a Child Welfare Officer or Probation Officer, any social worker or by the child himself, the procedure prescribed therein shall be adopted.
Upon production of the child or receipt of the report, the Committee shall hold inquiry and pass an appropriate order sending the child to children's home or fit facility or fit person, and for speedy social investigation by a social worker or Child Welfare Officer or Child Welfare Police Officer, with a proviso that all children below six years of age, who are orphan, surrendered or appear to be abandoned shall be placed in a Specialised Adoption Agency, where available.
21. From reading of the scheme of the enactment, which we have highlighted above, it is evidence that the category of children, who can be given in adoption, must be the one who are in need of care and protection and this term has a definite connotation. The sub- categorisation in this larger category is the children, 51 SN, J WP_22020 of 2024 & batch who are orphan or abandoned and the legislature had deemed it fit to even define these terms.
An 'abandoned child' is defined in Section 2(1) as a child deserted by his biological or adoptive parents or guardians, M.M.Salgaonkar 19/29 WP-2487-14+2. Odt and who has been declared as abandoned by the Committee after due inquiry.
Similarly, the 'orphan' is also defined in Section 2(42) to mean a child, (i) who is without biological or adoptive parents or legal guardian; or (ii) whose legal guardian is now willing to take, or capable of taking care of the child. Section 2(60) defines 'surrendered child' to mean a child, who is relinquished by the parent or guardian to the Committee, on account of physical, emotional and social factors beyond their control, and declared as such by the Committee.
22. With this categorisation being in place, it is to be ascertained as to whether the children for whose production the Petitioners have approached this Court for issuance of writ in the nature of habeas corpus, would fall within the category of 'children in need of care and protection'.
Learned Amicus Curiae Ms.Singhania, apart from submitting that the children are being placed in 52 SN, J WP_22020 of 2024 & batch the custody of Baal Asha Trust, as per the directions of Child Welfare Committee, has urged that the three children involved, would fall within the category of 'abandoned' or 'orphan' children and this inference is drawn by her, by submitting that the biological parents of the respective child have refused to take their care and in a sense, when the natural parents have sold them for a consideration, which is the accusation in the FIR or given them in adoption, without following the appropriate procedure, have deserted them, and, therefore, they are the children who would fall within the scope of 'children in need of care and protection'.
23. We are unable to subscribe to the view expressed as above, as we have noticed that the Act of 2015 has defined the term 'abandoned child' as the one who is deserted either by his biological parents or adoptive parents or guardians and when a child is given by the biological parents in the custody either of adoptive parents or guardians, definitely the child is not 'abandoned'. Further, 'orphan' is a child, who is without biological or adoptive parents or legal guardian or whose legal guardian is not willing to take, or capable of taking care of the child, but all the three children, in respect of whom the writ of habeas corpus is filed would not even come within the fold of this term. In addition, 53 SN, J WP_22020 of 2024 & batch 'surrendered child' is the one who is relinquished by the parent or guardian to the Committee, on account of physical, emotional and social factors beyond their control, and definitely, parting with a child, though for a consideration paid to a third party or through some middleman, also would not bring the child within the purview of 'surrendered child'.
26. However, in the present Petition before us, since we have concluded that the children involved do not fall category of 'children in need of care and protection', the custody being handed over to Respondent No.3 by CWC cannot be justified, as CWC itself does not get any power to deal with these children, who are neither 'abandoned' nor 'orphans'.
In addition, one important factor, which must be borne in mind is that the Petitioners, though without adhering to the procedure formulated in law, were handed over the custody of the minor children by the biological mothers and there is no application by the biological mothers or biological parents, seeking custody of their children. Worth it to note that the FIR has not arraigned the Petitioners as accused and at this stage, we need not go into the legality or otherwise of the Adoption Deeds, as we have already noted that the said documents do not satisfy the compliance of 54 SN, J WP_22020 of 2024 & batch HAMA in totality, but like in the case of Shettys, biological mother is dead, whereas in one of the case, the biological mother is arrested.
Since we are restricting ourselves, at this stage, only for consideration of prayer for issuance of writ of habeas corpus, as it is contention of the Petitioners that the custody of the minor children, has been handed to Respondent No.3 by the CWC, by assuming jurisdiction over the said children merely on the pretext that an FIR was registered, wherein the Petitioners are not arraigned as accused, but is based on an allegation that there is some racket, which is operating for trafficking of the children.
One most important aspect, which we must consider is the offence, which has been invoked in the subject FIR i.e. Section 370 read with Section 34 of IPC. Prima facie Section 370 would be attracted in case of trafficking of a person, since it contemplates that whoever for the purpose of exploitation transfers or receives a person by using threat or by using force or any form of coercion or by abduction or by practicing fraud or deception or by any inducement, the offence of trafficking is said to be committed.
Explanation appended to the said Section clearly spell out that the expression 'exploitation', shall include any 55 SN, J WP_22020 of 2024 & batch act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Prima facie, at this stage, we do not find that the prosecution alleges that the children are either transferred or received by any of the mode specified under Section 370 and it is for the purpose of exploitation, as understood in the said Section. Similarly, as far as Sections 81 and 83 of the Act of 2015 are concerned, Section 81 punishes an act of a person, who sells or buys a child for any purpose, but the proviso clarify that such offence is committed by a person having actual charge of the child, including employees of hospital or nursing home or maternity home and this, therefore, would not cover a biological mother/parents or any person acting on their behalf. Similarly, Section 83 of the Act of 2015 is also invoked and we fail to find any justification in invoking this Section, which prescribe the punishment for use of a child by militant group or its outfit declared by the Central Government.
Though the learned A.P.P. Ms.Deshmukh would invoke sub-section (2) of Section 83, according to us, it is not the case of the prosecution in the FIR that the children were used for illegal activities, either individually or as a gang.56
SN, J WP_22020 of 2024 & batch Very fairly, the prosecution has dropped Section 85, though it was initially invoked.
27. The learned counsel Mr.Arshil Shah has placed reliance upon various orders passed by this Court and we have taken note of these orders, where in the backdrop of an FIR registered in a similar fashion, by way of interim order, keeping the welfare of the child in mind, the petitioners, who approached the Court for issuance of habeas corpus, were permitted to take temporary custody of the child and this was in the case of Harishbhai C. Limbachiya & Anr. Vs. State of Maharashtra & Ors. (Writ Petition No.1489 of 2017) and also in case of Petrik francis Rodrigues & Anr. Vs. State of Maharashtra & Ors. (Writ Petition No.334 of 2017).
In addition, a decision from Telangana High Court, which has thrown light on this aspect, is also placed before us, being in the case of Kommuri Sriniwas & Anr. Vs. The State of Telangana, through Principal Secretary, Women Development and Child Welfare, Secretariat, Hyderabad & Ors. (Writ Petition No.9591 of 2020).
The petitioner before the Court assailed the action of the second respondent-Child Development Project Officer, in taking forcible custody of the child and sending to Shishu Gruha, Sangareddy as 57 SN, J WP_22020 of 2024 & batch illegal and arbitrary and seeking direction to release the child to the care and protection of the petitioners, who was adopted by them, by performing the rituals of 'Datta Homam'.
The second respondent, on marking appearance, stake its case that the officials received information that respondent Nos.5 and 6 have sold the child for money to the petitioners and they were counselled to keep the child, but on home inquiry, it was revealed that respondent Nos.5 and 6, on account of their poverty, sold the child to the petitioners through a middleman for Rs. Three Lakhs. The ICDS staff rescued the child and admitted in Shishy Gruha, Sangareddy and FIR came to be registered under the provisions of the J.J.Act.
The biological parents of the child adopted a stand that they had agreed to give the child in adoption to the petitioner before the child was delivered and in presence of all the family members and the relatives, the baby was handed over and was taken care of. It is in this background, reference was made to the decision in the case of Lakshmi Kant Pandey Vs. Union of India, to submit that the issue is no longer res integra and the law is well settled to the effect that the adoptions made under HAMA Act are outside the purview of the Juvenile Justice Act and CARA regulations."58
SN, J WP_22020 of 2024 & batch
28. We are fortified by the aforesaid observations in concluding that since all the three children before us cannot be termed as 'orphan' or 'abandoned' and, they do not fall in the category of the children in need of care and protection, as defined in Section 2(14) of the Act of 2015, the orders passed by CWC handing over their custody to Respondent No.3 is illegal, as CWC was not competent to exercise jurisdiction over the said children and transfer the children to Respondent No.3-Baal Asha Trust.
Since the biological parents are not coming forward to claim custody of these children and on the other hand, since we have noticed that the Petitioners were having custody of these children and, particularly, the Petitoner-NVS Rajesh and the Petitioner-Azharuddin Naushad Shaikh allegedly adopted the girl and boy child respectively aged, six days old and they have taken them in their embrace and, since then the infants have been part of their family.
29. We leave it open to the Petitioners to adopt the prescribed procedure for continuing the custody of the child with them, by having validly executed Adoption Deeds or by following any other legal procedure, which would allow them to retain their custody forever.
In any case, if the children are put in the care of Respondent No.3, and in case if they are below two years of age, then it is imperative for the CWC to 59 SN, J WP_22020 of 2024 & batch declare them free for adoption and, therefore, taking into consideration the paramount interest of the children, who are presently in custody of the respective Petitioners, we are satisfied that the case is made out by the Petitioners in all the three Petitions for issuance of writ in the nature of habeas corpus, for directing Respondent No.2-Child Welfare Committee and Respondent No.3-Baal Asha Trust, Mahalaxmi to hand over the custody of the children to the respective Petitioners within a period of 24 hours of uploading of this judgment and order.
By making the Rule absolute, we allow the Petitions, by directing Respondent No.2-Child Welfare Committee and Respondent No.3-Baal Asha Trust to act as under:-
(a) To hand over the custody of child, Ms.Kartika to the Petitioners, Mr.Leelendra Deju Shetty and Smt.Shashiprabha Leelendra Shetty in Writ Petition No.2487 of 2024.
The CARA guidelines as well as the definitions of the 'abandoned' and 'orphan' child were specifically reproduced along with the adoption procedure to be adopted in the backdrop of the definition of the term 'child in conflict with law'.
On having a conspectus of whole scheme and the CARA guidelines, the following observations resulted in handing over the child to the petitioners (adoptive parents) and the observation reads to the following effect :-
60
SN, J WP_22020 of 2024 & batch ".......In the light of the clear analysis and categorical declaration of law by the Supreme Court as well as the High Court of Delhi, High court of Kerala 5 AIR 1984 SC 469 and the High Court of Punjab and Haryana, in the absence of there being unimpeachable and absolute material for the respondent authorities to say that the adoption claimed by the petitioners to be sham and not acceptable, is totally unreasonable and arbitrary and without there being any basis. The understanding of the authorities that 2017 Regulations would apply with respect to every adoption and the adoptions can be made only under the 2017 Regulations is only on account of misinterpreting the provisions and on account of the improper understanding of the width and scope of the Juvenile Justice Act and Regulations vis-à-vis provisions of HAMA.
Yet another contention of the learned counsel for the respondent No.4 that the adoption deed claimed by the petitioners is not registered and thus the same would have no validity is also liable to be rejected. What all Section 16 of the HAMA Act declares is the effect of registration of adoption deed, and the weight that is required to be given to the same when the same is legally challenged. A close scrutiny of the provisions of HAMA Act 61 SN, J WP_22020 of 2024 & batch does not disclose there being any set procedure, or a ritual or a necessity of a written deed for a valid adoption to come into existence. These aspects of the matter are also no longer res integra and it is not necessary for this Court to reproduce the same, as the same are available in various legal journals.
The restrictive scope of Juvenile Justice Act, and inapplicability of the same to the adoptions made under the HAMA Act were noticed and elaborately dealt by a Division Bench of Kerala High Court and the Punjab and Haryana High Court, apart from the clear and ample guidance provided in the judgment of the Supreme Court in M/s Shabnam Hashmi v. Union of India. Further the Delhi High court in PKH v.Central Adoption Resource Authority in categorical terms held that a Hindu child who is offered and accepted in adoption under Hindu Adoptions and Maintenance Act, 1956, by no stretch of imagination, can be termed as a surrendered child.
In those circumstances, this writ petition is allowed and the respondent no.2 is directed to handover the child to the petitioners (adoptive parents) in the presence of respondents 5 and 6 (biological parents). No 62 SN, J WP_22020 of 2024 & batch costs. Miscellaneous petitions, if any pending, shall stand closed."
(b) To hand over the custody of child, Master Ayaan to the Petitioners, Mr.Azharuddin Naushad Shaikh and Smt.Sabanaz Azharuddin Shaikh in Writ Petition(St)No.11398 of 2024.
(c) To hand over the custody of child, Ms.Rehanika to the Petitioners, Mr.NVS Rajesh and Smt.M.V.Puja Laxmi Kameshwari in Writ Petition (St)No.10984 of 2024."
44. A bare perusal of the observations of Division Bench of the Bombay High Court in Leelendra Deju Shetty & Anr. Vs. The State of Maharasthra & Ors., dated 22.07.2024 (referred to and extracted above) and the application of the said principles laid down in the said judgment to the facts in the present batch of writ petitions clearly indicate that in view of the fact that none of the children in the present writ petitions fall under the category of orphan, abandoned or surrendered children, they admittedly do not fall in the category of the child in need of care and protection as defined in Section 2(14) of Juvenile Justice (Care and Protection of Children) Act, 2015, and hence, this Court 63 SN, J WP_22020 of 2024 & batch opines that the respective Child Welfare Committees acting upon the instructions of the concerned police is without any Authority of law.
45. The judgment relied upon by the learned Government Pleader for Women Development and Child Welfare reported in (2014) 4 SCC 1 in Shabnam Hashmi Vs. Union of India and Others in fact supports the case of the petitioners in view of the fact that vide the said judgment it is held that the aspiring parents who intend to adopt children, without being inhibited by their personal laws, are entitled to adopt a child in terms of the provisions of the Juvenile Justice Act.
46. Another judgment relied upon by the learned Government Pleader for Women Development and Child Welfare reported in (2022) 13 SCC 458 in Contagion of COVID-19 Virus in Children Protection Homes, IN RE Contagion only pertains to issuance of certain directions pertaining to collection of information relating to children who have either been abandoned, 64 SN, J WP_22020 of 2024 & batch lost both parents, or lost one parent and the said judgment also has no application to the facts of the present case in all the batch of the present writ petitions.
47. The facts in all these batch of writ petitions as borne on record indicate the minor children being placed in the custody of the petitioners, or by their biological parents or by the person projecting as their caretaker/guardian. The children continue to be in the care and protection of the petitioners from the date of the alleged adoption Deeds and form part and parcel of their families. Due to the registration of the subject FIR's, the children were separated from them despite the fact that they had taken care of them very well and had showered all their love and affection upon them and were emotionally attached to them. The children were taken away from the custody of the petitioners without Authority of law and were produced before the respective Child welfare Committees (CWC) which in turn housed them in Child Protection Services (ICPS) 65 SN, J WP_22020 of 2024 & batch on the pretext that the Adoption Deeds are not valid in the eye of law, and it was suspected that there is child trafficking racket which is involved and since the FIR's had been registered against few of the petitioners and the same are under investigation.
48. In each of the case, the petitioners specifically contend that they are financially sound and are in a good position to take care of the needs of the children and would ensure proper education to be imparted and assure to provide good atmosphere, so as to bring up the children as good human beings and good citizens of the country.
49. In most of the present batch of '9' Writ Petitions FIRs had been registered against the petitioners under Sections 370, 372, 373 read with 34 IPC, Sections 81, 87 of Juvenile Justice (Care and Protection of Child) Act, 2015, 88 Juvenile Justice (Care and Protection of Child) Act, 2000. This Court opines, Section 370 read with Section 34 IPC would be attracted in case of trafficking of a person and the Explanation appended 66 SN, J WP_22020 of 2024 & batch to the said Section clearly spell out that the expression "Exploitation" shall include any Act of physical exploitation or any form of Sexual Exploitation, Slavery or practices similar to Slavery, Servitude, or the forced removal of organs. The material on record in all the '9' Writ Petitions indicates that prosecution has not alleged that the children are either transferred or received by any of the mode specified under Section 370, for the purpose of exploitation as explained in the said Section.
50. A bare perusal of the subject FIR's do not indicate the ingredients so as to constitute the offences under Sections 372 and 373 IPC as well.
51. A bare perusal of Section 81 and 87 of the Juvenile Justice (Care and Protection of Child) Act, 2015 indicates that Section 81 stipulates punishment for an act of a person, who sells or buys a child for any purpose, but the proviso thereto clearly clarifies that such offence as having been committed, by a person having actual charge of a child including employees of 67 SN, J WP_22020 of 2024 & batch hospital or nursing home, or maternity home and this, therefore, would not cover a biological mother/parents or any person acting on their behalf. Similarly, Section 87 of the Juvenile Justice (Care and Protection of Child) Act, 2015 is also not applicable in the present case
52. The Apex Court in the judgment reported in Lakshmikant Pande Vs. Union of India reported in AIR 1984 SC 469 had laid down certain guidelines promoting inter-country adoption.
53. The Kerala High Court in the judgment reported in 1999 SCC Online ker 5 in Philips Alfred Malvin Vs. Y.J.Gonsalvis and Others held that the Hindu law, Mohammedan law and Canon law recognized adoption.
54. A Division Bench of this Court at Hyderabad in its recent judgment, dated 16.05.2024 passed in W.P.No. 13338 of 2024 in an habeas corpus petition filed for taking custody of the corpus namely Jeevika Gupta, who is aged about 2 years and 9 months, by contending that petitioner No.1 is the person, who has taken the 68 SN, J WP_22020 of 2024 & batch corpus in adoption by way of Deed of Adoption dated 27.07.2021 and thereafter, the specific grievance of the petitioner thereunder was that on 28.04.2024 around 4:30 pm two members claiming to be "Bal Rakshaks"
came with two constables and entered the house of petitioner No.1 forcibly and took the child from his custody. At para No.7, 8 and 9 of the said judgment, it is observed as under:-
7. Before dealing with the contentions of both sides, it is apt to refer to Section 2 (14) (v) and Section 31 of Act of 2015, on which reliance is placed by the learned counsel for the respondents-State, which are reproduced as under:
"Section 2: Definition (14) child in need of care and protection" means a child--
(i)...
(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or Section 31: Production before Committee (1) Any child in need of care and protection may be produced before the Committee by any of the following persons, namely:--69
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(i) any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer of District Child Protection Unit or inspector appointed under any labour law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-
governmental organisation or any agency as may be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing home, hospital or maternity home:
Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.
(2) The State Government may make rules consistent with this Act, to provide for the manner of submitting the report to the Committee and the manner of sending and entrusting the child to childrens home or fit facility or fit person, as the case may be, during the period of the inquiry."
8. A conjoint reading of aforesaid makes it clear that a child can be said to be 'in need of care and protection' provided the parent, who has a 70 SN, J WP_22020 of 2024 & batch custody of said child is found to be 'unfit' or 'incapacitated' by Committee or the body to care for and protect the safety and well being of the child. Thus, finding of Committee is sine qua non whether parent is 'unfit' or 'incapacitated'. Putting it differently, unless the Committee takes a decision that the parent/guardian of the corpus is 'unfit' or 'incapacitated', the child cannot be said to be "in need of care and protection".
9. Despite our repeated query, the learned counsel for the State could not show us any enabling provision pursuant to which respondent Nos.2 and 3 could have forcibly taken the corpus from the custody of petitioner No.1. In absence of showing any enabling provision, we are unable to countenance the action of the respondents in taking the custody of the child. Resultantly, we are of the opinion that the child was taken from the custody of petitioner No.1 without any authority of law. Thus, the respondents are directed to forthwith return the child/corpus to petitioner No.1. The learned counsel for the State is directed to communicate this order to respondent Nos.2 and 3 during the course of the day. This order will not come in the way of respondents to proceed against petitioner No.1 if law so permits. So far the claim of compensation is concerned, in this Writ Petition; we are not inclined to enter into the said aspect. In order to decide the aspect 71 SN, J WP_22020 of 2024 & batch of compensation various ingredients are required to be looked into. We are only inclined to give liberty to the petitioner to avail appropriate remedy under the civil law for the purpose of compensation.
55. A learned Single Judge of this Court in a judgment dated 05.01.2021 in W.P.No. 9591 of 2020 in Kommuri Srinivas and another Vs. The State of Telangana through Principal Secretary Women Development and Child Welfare, Secretariat Hyderabad and Others considered the following questions in the said case
i) Whether the action of the respondents in taking away the child is valid and sustainable ?
ii) Whether the adoption claimed by the petitioners and the respondent Nos. 5 & 6 is liable to be ignored ?
iii) Whether in the facts of the said case the provisions of Juvenile Justice Case, and CARA guidelines applied and over right the Hindu Adoptions and Maintenance Act (HAMA) (1956).
The above referred questions in the said judgment were answered as under:-
72
SN, J WP_22020 of 2024 & batch At the outset, it may be mentioned the applicability or inapplicability of the Juvenile Justice Act and CARA guidelines is no longer res integra. The Hon'ble Supreme Court after tracing the history of enactment of Juvenile Justice Act, and the Rules made there under, and after analyzing the judgments rendered up to the date in Anokha case, in paragraph 8, had noted the matters relating to adoptions and categorized them into three classes viz., (i) children who are orphaned or destitute or whose biological parents cannot be traced;
(ii) children whose biological parents are traceable but have relinquished them or surrendered them for adoption, and (iii) children living with their biological parents. The above classification though was made in the context of adoptions of children to outside country couples, the classification would throw light with respect to the scope and ambit of the Juvenile Justice Act and CARA guidelines. In the same judgment, the Supreme Court further held that the third category was expressly excluded from consideration in Lakshmi Kanth Pandey's case further recognizing the right of the biological parents to give their child in adoption to foreign parents. Observations made in the said judgment would squarely apply even with respect to the adoptions within the country so long as the adoptions are being made among the consenting parties and subject to their personal laws. In other words, the judgment of the Supreme Court is categorical and in unequivocal terms 73 SN, J WP_22020 of 2024 & batch laid down that the CARA guidelines apply to "aforesaid observations only pertain to children who have been or are sought to be relinquished or surrendered for adoption in general to a placement agency or other institution where there is no contact between them and the adoptive parents at all and not to cases where the child is living with his/her parent/parents and is agreed to be given in adoption to a particular couple who happen to be foreign."
.....................
As a matter of fact, the Regulation 9, Chapter 3 under the Heading - Adoption Procedure for Resident Indians, is restrictive in its application to the Adoption of Orphans, Abandoned or Surrendered children. The very Juvenile Justice Act in Sub Section 3 of Section 56 categorically excludes the adoptions made under HAMA Act.
In the light of the clear analysis and categorical declaration of law by the Supreme Court as well as the High Court of Delhi, High court of Kerala and the High Court of Punjab and Haryana, in the absence of there being unimpeachable and absolute material for the respondent authorities to say that the adoption claimed by the petitioners to be sham and not acceptable, is totally unreasonable and arbitrary and without there 74 SN, J WP_22020 of 2024 & batch being any basis. The understanding of the authorities that 2017 Regulations would apply with respect to every adoption and the adoptions can be made only under the 2017 Regulations is only on account of misinterpreting the provisions and on account of the improper understanding of the width and scope of the Juvenile Justice Act and Regulations vis-à-vis provisions of HAMA.
Yet another contention of the learned counsel for the respondent No.4 that the adoption deed claimed by the petitioners is not registered and thus the same would have no validity is also liable to be rejected. What all Section 16 of the HAMA Act declares is the effect of registration of adoption deed, and the weight that is required to be given to the same when the same is legally challenged. A close scrutiny of the provisions of HAMA Act does not disclose there being any set procedure, or a ritual or a necessity of a written deed for a valid adoption to come into existence. These aspects of the matter are also no longer res integra and it is not necessary for this Court to reproduce the same, as the same are available in various legal journals.
The restrictive scope of Juvenile Justice Act, and inapplicability of the same to the adoptions made under the HAMA Act were noticed and elaborately dealt by a Division Bench of Kerala High Court and the Punjab and 75 SN, J WP_22020 of 2024 & batch Haryana High Court, apart from the clear and ample guidance provided in the judgment of the Supreme Court in M/s Shabnam Hashmi v. Union of India5. Further the Delhi High court in PKH v. Central Adoption Resource Authority6 in categorical terms held that a Hindu child who is offered and accepted in adoption under Hindu Adoptions and Maintenance Act, 1956, by no stretch of imagination, can be termed as a surrendered child.
In those circumstances, this writ petition is allowed and the respondent no.2 is directed to handover the child to the petitioners(adoptive parents) in the presence of respondents 5 and 6 (biological parents). No costs. Miscellaneous petitions, if any pending, shall stand closed.
56. Taking into consideration:-
i) The aforesaid facts and circumstances of the case.
ii) The averments made in the counter affidavit filed by the respondent No. 1 to 6 in W.P.No. 2181 of 2024 (referred to and extracted above).
iii) The submissions made by all the learned counsel on record.76
SN, J WP_22020 of 2024 & batch
iv) The view of the Courts in the various judgments on the subject issue ( referred to and extracted above).
v) The fact as borne on record that none of the children involved in the present batch of writ petitions fall in the category of children "in need of care and protection".
vi) Duly considering the objectives of the Juvenile Justice (Care and Protection of Children) Act, 2015.
vii) The fact as borne on record that there is no application by the biological mothers or biological parents seeking custody of their children in the batch of '9' Writ Petitions.
viii) The fact as borne on record and referred to even in the counter affidavits that few of the petitioners had filed online applications to the CARA for adoption.
ix) In the light of the discussion and conclusion at para Nos. 28 to 55 as arrived at as above This Court opines that the custody of the children handed over to the respective child welfare committees 77 SN, J WP_22020 of 2024 & batch is without any justification since the said committees do not get any power to deal with these children who are neither orphans or abandoned or surrendered children.
This Court opines that the respondents herein who are duty bound to function and act legally acted in excess of their legal Authority without jurisdiction, hence they are subject to the controlling jurisdiction of this Court under Article 226 of the Constitution of India. All the present Writ Petitions are allowed as prayed for. It is however observed that it is open to the petitioners to adopt the prescribed procedure for continuing the custody of the children with them, if they so desire by having validly executed Adoption Deeds or by following any other legal procedure which would allow them to retain their custody forever as observed by the Division Bench of Bombay High Court, in its judgment dated 22.07.2024 in Leeelendra Deju Shetty & Anr. Vs. The State of Maharashtra & Ors. & batch. However, there shall be no order as to costs. 78
SN, J WP_22020 of 2024 & batch Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
___________________________ MRS. JUSTICE SUREPALLI NANDA Date: 23.09.2024 CC furnished by today (b/o) ktm