Andhra Pradesh High Court - Amravati
Smt.C.H.Jhansiachary, vs The State Of Andhra Pradesh on 7 March, 2025
APHC010050872025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE SEVENTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 2854/2025
Between:
Smt.c.h.jhansiachary, and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. G ESWARAIAH Counsel for the Respondent(S):
1. GP FOR WOMEN DEV CHILD WELFARE The Court made the following Order:
The Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue writ, order or direction more particularly one in the nature of Writ of Mandamus declare the act of respondent No.2 to 4 in forcibly taking over the custody of child, that is Child Bharat Chandra Achary born on 04.12.2023 from the petitioners, as illegal, uncalled, arbitrary and in contravention of the provisions Hindu adoption and Maintenance 1969 and Juvenile Justice act, consequentially, direct the respondent No.2 to handover the child, that is Child Bharat Chandra Achary born on 04.12.2023 to the petitioners...."2
2. Brief facts of the case are that the petitioners 1 and 2 are legally wedded wife and husband, having been married on 11.12.2013. As they have no biological children, they were looking out the options for adoption. While so, one Pakala Bhavani approached the petitioners offering to give her child, who was just 12 days old in adoption stating that she delivered a pre-mature child in her 7th month of pregnancy and she is a single parent without any support and she is unable to take care of him due to financial constraints. Accordingly, the petitioners taken the child in adoption and admitted the child in Ramsaranya Hospital, Krishna Nagar, Visakhapatnam on 16.12.2023 and the child was discharged on 19.12.2023. The child's health was improving and the petitioners are enjoying watching the child growth. The petitioners also performed the Naming and Cradle Ceremony of the child. While things stood thus, all of a sudden, on 18.12.2024, the 4th respondent came to petitioners' house stating that they registered an FIR in Crime No.445 of 2024 against Pakala Bhavani, who gave the child in adoption and wanted to take the child Bharat Chandra Archary, born on 04.12.2023 with them. The 4th respondent took away the minor child from petitioners' custody on 18.08.2024. On 19.08.2024, the petitioners were allowed to take the child to the hospital for treatment. But the 4th respondent gave the child in the custody of respondents 2 and 3 on 20.08.2024. Aggrieved by the same, the petitioners filed W.P.No.21897 of 2024 before this Court and the same was dismissed as withdrawn for filing proper petition. The petitioners were prepared to provide 3 proper care and treatment to the child in a Super-Speciality hospital. Apart from that, the respondents 2 and 3 are threatening to give the child in adoption to third parties. Questioning the action of the respondents 2 to 4 in forcibly taking over the custody of the child from the petitioners, the present writ petition has been filed.
3. This Court, vide order, dated 06.02.2025, has passed the following order:
"Heard learned counsel for the petitioners and learned Government Pleader for Women Development and Child Welfare.
On perusal of the record, it appears that, earlier, the petitioners filed W.P.No.21897 of 2024 seeking for a direction to the respondents to show whereabouts of their baby and produce their baby Bharat Chandra Achary, son of Debi Prasad Achary and to handover the baby to them without any harassment, wherein the Division Bench of this Court has directed the 2nd respondent to take necessary steps to ensure that the infant is given proper treatment and medical aid and a report shall be filed relating to the treatment and medical aid given to the infant. Later, the petitioners have withdrawn the said writ petition. Again, the petitioners have filed this writ petition seeking a direction to the second respondent to hand over the infant, Bharat Chandra Anchary, to them on the grounds that the infant's health is in poor condition, and as such, it is essential for the petitioners to provide necessary treatment to the infant.
On hearing the submissions made by the learned counsel for the petitioners, the 2nd respondent shall take all necessary steps to ensure that the infant is given proper treatment and medical aid and a report relating to the treatment and medical aid given to the infant shall also be filed by the next date of hearing."
4. Heard Mr.G.Eswaraiah, learned counsel for the petitioners and learned Government Pleader for Women Development and Child Welfare, for the respondents.
5. On hearing, learned counsel for the petitioners while reiterating the contents urged in the writ petition, submits that, nobody given missing complaint in respect of petitioners' child against anyone and nobody came 4 forward claiming the child as their child till now. He further submits that the petitioners are financially well settled and can provide love, affection, good health, education and everything that a child requires from his parents. After taking the child in adoption, the petitioners have nurtured the child, given best care and brought him up to a certain extent. The petitioners have taken the pre-mature baby, who was born in the 7th month of pregnancy, in adoption, spent lakhs of rupees for the welfare of the child due to love and affection and the respondent authorities cannot give proper medication which the child is needed, due to lack of facilities with them. He further submits that, when the baby is in the custody of the home which is being managed by the State, particularly the respondents 2 and 3, the child fell sick. The home managed by the State is not in a position to give proper care to the child, as there are no proper facilities and infrastructure in the home. Therefore, learned counsel for the petitioners requests this Court to pass appropriate orders.
6. Per Contra, learned Government Pleader vehemently opposed for grant of any relief in the writ petition and submits that the petitioners have violated the Section 80 of the Juvenile Justice Act, 2015 which says that if any person or Organization offers or gives or receives any orphan/child for the purpose of adoption without following the provisions or procedures as provided in this Act, such person or organization shall be punishable with imprisonment of either description for term which may extend up to three years or fine of Rs.1 lakh or with both. He further submits that Section 81 of 5 the Juvenile Justice Act, 2015 says that the sale and procurements of children for any purpose provided that where such offence is committed by a person, the term of imprisonment shall not be less than three years and may extend up to seven years. The petitioners have violated the Sections 80 and 81 of the Juvenile Justice Act, 2015 and hence the respondents cannot hand over the custody of the child to the petitioners. He further submits that the petitioners are advised to enter their names in CARA (Central Adoption Resource Authority) portal for legalized Adoption as they have no children. Within six months, the petitioners may get any other child from CARA from anywhere in India. The child in the present writ petition may not be given to the petitioners even though they have applied in the CARA portal. He further submits that the child is not born to the petitioners or legally adopted child and not possible to handover the child to the petitioners, which attracts violation of Juvenile Justice Act and Rules. Therefore, learned Government Pleader prays to dismiss the writ petition.
7. On considering the submissions of both the learned counsels and upon perusing the entire material on record, this Court is of the opinion that, the petitioners are interested to adopt the child and approached this Court for the custody of the child. Hence, without touching the merits of the case, this Court deems it appropriate to dispose of the writ petition, directing the petitioners to adopt the prescribed procedure for the custody of the child with them, by having validity executed Adoption Deeds or by following legal 6 procedure of Juvenile Justice Act, 2015, which would allow them to retain their custody forever. Further, the respondents are directed to cooperate with the petitioners in complying with the proper procedure for adoption of the child by the petitioners.
8. The entire exercise shall be completed within a period of three (03) months from the date of receipt of a copy of this order.
9. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs.
10. As a sequel, miscellaneous applications pending, if any, shall stand closed.
__________________________ Dr. K. MANMADHA RAO, J Date : 07-03-2025 BMS