Telangana High Court
The Child Welfare Project Director vs B Santosh on 28 November, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
WRIT APPEAL Nos.1193, 1228, 1257, 1260, 1265,
1266, 1267, 1268 and 1277 of 2024
COMMON JUDGMENT:(Per the Hon'ble the Chief Justice Alok Aradhe) Mr. Mohammed Imran Khan, learned Additional Advocate General for the State of Telangana appears for the appellants.
Mr. T.Surya Satish, learned counsel for respondents No.1 and 2 in W.A.Nos.1265, 1266, 1267 and 1268 of 2024 and for the respondent No.1 in W.A.No.1277 of 2024.
Ms. C. Rakee Sridharan, learned counsel for respondents No.1 and 2 in W.A.No.1228 of 2024.
Mr. V. Umakanth Reddy, learned counsel represents Mr. C. Ruthwik Reddy, learned counsel for respondents No.1 and 2 in W.A.No.1193 of 2024.
Mr. G. Veera Babu, learned counsel for respondents No.1 and 2 in W.A.Nos.1257 and 1260 of 2024. 2
Ms. K. Mani Deepika, learned Government Pleader for Women Development and Child Welfare for respondents No.3 and 4 in W.A.Nos.1228, 1257 and 1260 of 2024; for respondents No.3, 4 and 6 in W.A.No.1267 of 2024; for respondents No.3, 4 and 6 in W.A.Nos.1265, 1266 and 1268 of 2024; for respondents No.3, 4 and 5 in W.A.No.1193 of 2024 and for respondents No.2, 3 and 5 in W.A.No.1277 of 2024.
Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appears for Central Adoption Resource Agency.
2. With the consent of the learned counsel for the parties, the appeals are heard finally.
3. These intra court appeals emanate from the common order dated 23.09.2024 passed by the learned Single Judge and involve a common issue. Therefore, these appeals were heard analogously and are being decided by this common judgment. However, the common issue with regard to validity of the action of the police authorities in 3 taking away the custody of the minor children from the respondents No.1 and 2 in W.A.Nos.1193, 1228, 1257, 1260, 1265, 1266, 1267 and 1268 of 2024 and the respondent No.1 in W.A.No.1277 of 2024, who claim to be adoptive parents, is without any authority of law, arises for consideration in different factual backdrop. Therefore, we briefly refer to the facts in each appeal.
4. In W.A.No.1265 of 2024, it is the case of the respondents No.1 and 2 that they are the adoptive parents of one minor girl child, namely D.Maanvika, who is aged about three years. It is their case that respondents No.1 and 2 were informed through a common friend that a nine days old baby girl is available for adoption. The aforesaid respondents therefore adopted the child on 30.03.2024, in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as, "the 1956 Act"). In W.A.No.1277 of 2024, the respondent No.1 claims that she has adopted a two days old baby girl, namely K.Uma Maheshwari, from her biological parents on 15.11.2021, as they were not in a position to bring up the 4 child. In W.A.No.1267 of 2024, the respondents No.1 and 2 assert they learnt through a common friend that a twenty days old baby girl, namely S.Rishika, is put up for adoption. Therefore, the said respondents adopted the said child on 26.01.2024 from her biological parents.
5. In W.A.No.1266 of 2024, the respondents No.1 and 2 claim to be adoptive parents of a minor child, namely B.Sresta. It is their case that they adopted the aforesaid two days old baby girl on 22.01.2024 from the biological parents. In W.A.No.1268 of 2024, the case of the respondents No.1 and 2 is that they have adopted a minor girl child, namely K.Jhanavi Sahasra, on 20.05.2024 from her biological parents and are her adoptive parents. In W.A.No.1260 of 2024, the respondents No.1 and 2 claim to have adopted a girl child namely, G.Parnika Reddy, from the biological parents on 07.08.2022.
6. In W.A.No.1257 of 2024, the respondents No.1 and 2 claim that they have adopted a baby boy, namely Puli Bargav Ram, from the biological parents. In W.A.No.1193 of 2024, the respondents No.1 and 2 claim to have adopted 5 a minor baby boy, namely Adavi Naga Venkata Dhruva, from his biological parents and claim to be the adoptive parents of the aforesaid child. In W.A.No.1228 of 2024, the respondents No.1 and 2 claim to be adoptive parents of a girl child, namely Perugu Bhavya Sri. It is asserted that the aforesaid respondents have adopted the girl child on 16.08.2022 from her biological parents, namely respondents No.5 and 6 in the said writ appeal. According to the respondents No.1 and 2, an adoption deed has been executed and the biological parents handed over the aforesaid child to the respondents No.1 and 2 on payment of Rs.1,50,000/-.
7. One Manyam Sai Kumar, who is a News Reporter in a news channel, namely SR News (hereinafter referred to as, "the complainant"), filed a complaint on 22.05.2024 in Medipally Police Station, Rachakonda, in which it was stated that he received an intimation on 17.05.2024 that one Shobha Rani is running a clinic a Rama Krishna Nagar Colony, Peerzadiguda, Hyderabad. It was stated in the said complaint that she is selling children to needy people. The 6 complainant shared the information amongst his colleagues and decided to conduct a sting operation. The complainant, therefore, made a phone call to Shobha Rani and asked if children are available. Thereupon, the complainant was informed that a girl child is available for Rs.5.00 lakhs whereas a boy is available for a sum of Rs.6.00 lakhs. According to the complaint, the aforesaid Shobha Rani shared photographs of two baby girls and one boy on the whatsapp number of the complainant. The complainant was asked to attend the clinic on 18.05.2024 and was instructed to meet one Saleem. The complainant after discussion selected a girl child for an amount of Rs.4,50,000/- and informed Shobha Rani that on 20.05.2024 he will pay the advance amount. The complainant was asked to come on 22.05.2024. Thereafter, the complainant lodged the First Information Report in Medipally Police Station. On the basis of the complaint, the First Information Report, namely F.I.R.No.579 of 2024, for offences under Sections 370, 372, 373 read with Section 34 of the Indian Penal Code, 1860, Sections 81 and 87 of the 2015 Act and Section 88 of the 7 Juvenile Justice (Care and Protection of Children) Act, 2000, was registered.
8. On the basis of the aforesaid complaint, the Station House Officer, Medipally Police Station, conducted the search and recovered fifteen children on 22.05.2024. The Station House Officer produced the children before the Child Welfare Committee (hereinafter referred to as, "the Committee") under the 2015 Act.
9. Thereafter, the adoptive parents who were petitioners in nine different writ petitions before the learned Single Judge filed the writ petitions in which a declaration was sought that the action of the Commissioner of Police, Rachakonda, and Station House Officer, Medipally Police Station, in forcibly and illegally taking the custody of the minor children from the writ petitioners and handing them over to the Child Welfare Project Director and Integrated Child Protection Services, Sishuvihar, Hyderabad, on the basis of the First Information Report, is illegal, arbitrary and violative of Articles 14 and 20(1) of the Constitution of India.
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10. The learned Single Judge by the common order dated 23.09.2024 has allowed the writ petitions and, inter alia, has held that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as, "the 2015 Act") do not apply to the fact situation of the cases and it has been further held that the action of the police authorities in taking the custody of the children in question from the respondents No.1 and 2 in W.A.Nos.1193, 1228, 1257, 1260, 1265, 1266, 1267 and 1268 of 2024 and the respondent No.1 in W.A.No.1277 of 2024, who claim to be adoptive parents of the children in question is illegal and without any authority of law. The learned Single Judge has also granted the liberty to the writ petitioners to adopt the procedure prescribed for continuation of the custody of the children with them by validly executed adoption deeds or by following any other procedure which would allow them to retain the custody of the children forever. Hence, these appeals.
11. Learned Additional Advocate General submitted that the respondents No.1 and 2 in W.A.Nos.1193, 1228, 1257, 9 1260, 1265, 1266, 1267, 1268 of 2024 and the respondent No.1 in W.A.No.1277 of 2024, who were the writ petitioners in the writ petitions before the learned Single Judge have neither validly adopted the minor children under the 2015 Act nor under the 1956 Act. It is further submitted that the State is bound to protect the children who were in need of care and protection and therefore, the Station House Officer took the custody of the children and produced them before the Committee. It is submitted that since 22.05.2024, the minor children are in the custody of the Committee.
12. It is, however, fairly submitted that the Committee is required to take action in terms of the provisions of the 2015 Act. However, the same was not taken, as the matter was sub judice. It is further submitted that suitable action in terms of the 2015 Act with regard to custody of the children shall be taken. It is also stated that the applications of those adoptive parents seeking adoption of the minor children shall also be decided expeditiously within a time limit which may be fixed by this Court. 10
13. Learned counsel for respondents No.1 and 2 in W.A.Nos.1265, 1266, 1267 and 1268 of 2024 and for the respondent No.1 in W.A.No.1277 of 2024 submitted that none of the Sections under which the First Information Report has been registered, are attracted to the fact situation of the case. It is further submitted that for adoption of a child neither Datta Homam nor adoption deed is necessary. It is pointed out that the minor children have been adopted by the adoptive parents in accordance with the 1956 Act. It is contended that the Police cannot take the custody of the children until and unless the issue of adoption either under the 1956 Act or the 2015 Act is decided. Learned counsel also furnished the details of the qualifications of the parents, who are the writ petitioners, and has placed reliance on the Division Bench decisions of the Telangana High Court and Bombay High Court in Arun Kumar Gupta v. State of Telangana 1 and Leelendra Deju Shetty v. State of Maharashtra 2 respectively. 1 2024 SCC OnLine TS 882 2 2024 SCC OnLine Bom 2363 11
14. Learned counsel for the respondents No.1 and 2 in W.A.No.1228 of 2024 has submitted that the aforesaid respondents had impleaded the biological parents as the respondents No.6 and 7. It is further submitted that the minor child is neither an orphan nor a surrendered child. It is submitted that the minor girl child is also not an abandoned child. Therefore, the provisions of the 2015 Act do not apply to the fact situation of the case. It is pointed out that in the enquiry carried out by the police authorities as well as social investigation carried out under the provisions of the 2015 Act, it has been found that the respondents No.1 and 2 are taking care of the child. It is further submitted that the respondents No.1 and 2 have validly adopted the child under the 1956 Act and the order passed by the learned Single Judge does not call for interference in this intra court appeal.
15. Learned counsel for the respondents No.1 and 2 in W.A.Nos.1257 and 1260 of 2024 has submitted that no complaint has been received from the biological parents of the minor children.
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16. The learned counsel for the respondents No.1 and 2 in W.A.No.1193 of 2024 has submitted that the child was an illegitimate child, which has been adopted under the provisions of the 1956 Act and the action of the police authorities in taking the custody of the minor child from the respondents No.1 and 2 is illegal.
17. By way of rejoinder, the learned Additional Advocate General has submitted that the decisions relied on by the learned counsel for the respondents No.1 and 2 in Arun Kumar Gupta (supra) and Leelendra Deju Shetty (supra) relate to writ petitions which were filed by the biological parents seeking a writ of habeas corpus and therefore has no application in the facts and circumstances of the case. It is further submitted that under Section 31 of the 2015 Act, the children have been produced before the Committee.
18. We have considered the submissions made on both sides and have perused the record.
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19. The sole issue which arises for consideration in these appeals is whether the action of the police authorities in taking away the custody of the minor children from the writ petitioners who claim to be adoptive parents is sans any authority of law.
20. The 2015 Act is enacted to consolidate and amend the law relating to children alleged and found to be in conflict with law and for the benefit of children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach. Section 2(1) of the 2015 Act defines the expression "abandoned child", whereas Section 2(14) deals with the expression "child in need of care and protection". Section 2(42) defines the expression "orphan". The aforesaid definitions, which are relevant for the purposes of the controversy in these appeals, are reproduced below:
"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;14
(14) "child in need of care and protection" means a child--
(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 the provisions of this Act or 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--
(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 15
(vi) who does not have parents and no one is willing to take care of, and protect or who is abandoned or surrendered;
(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
(ix) who is found vulnerable and has been or is being or 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; (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;"
21. It is pertinent to note that the 2015 Act is a welfare legislation and its provisions are required to be liberally interpreted. From a careful scrutiny of Section 2(14) of the 16 2015 Act which defines the expression "child in need of care and protection", particularly Section 2(14)(vi), it is evident that the same includes the child who does not have parents and no one is willing to take care of and protect or who is abandoned or surrendered. In the instant cases, admittedly, the biological parents of the children in question were not willing to take care of the children. Therefore, in our opinion, the children in question are covered by Section 2(14) of the 2015 Act. However, we may hasten to add that the aforesaid finding has been recorded only for the purposes of dealing with the contention of the respondents No.1 and 2 that the provisions of the 2015 Act do not apply to the fact situation of the case and shall not bind any authority and shall not preclude it from deciding the issue with regard to the applicability of the 2015 Act.
22. Chapter VI of the 2015 Act deals with the production of child before the Committee. The police officer dealing with any child in need of care and protection is required to produce him/her before a Child Welfare Committee without any loss of time but within a period of twenty four hours. 17 It is not in dispute that the Station House Officer, Medipally Police Station, has produced the children in question before the Committee.
23. However, thereafter the Committee is required to conduct an enquiry in terms of Section 36 of the 2015 Act and to pass an order under Section 37 of the said Act regarding a child in need of care and protection. The aforesaid provisions of law which prescribe an enquiry and an order to be passed by the Committee have not been completed by the Committee. The Committee, in case of an orphan or an abandoned child has also to take an action to declare a child legally free for adoption under Section 38 of the 2015 Act. The procedure prescribed in Sections 36, 37 and 38 of the 2015 Act has not been followed by the appellants. However, the aforesaid aspect of the matter has not been appreciated by the learned Single Judge.
24. The common order dated 23.09.2024 passed by the learned Single Judge in W.P.No.22020 of 2024 and batch is set aside.
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25. The children in question are in the custody with the Committee since 22.05.2024. Therefore, presently in the obtaining factual matrix of the case, we are not inclined to disturb the custody of the children on account of non- compliance of Sections 36, 37 and 38 of 2015 Act. It is stated before us that social investigation has been completed.
26. However, it is necessary to issue the following directions:
(1) The Committee shall pass an order in terms of Section 37 of the 2015 Act within a period of two weeks from the date of receipt of copy of the order passed today.
(2) Some of the adoptive parents have filed an application seeking adoption of the children. The competent authority is directed to decide the application seeking adoption within a period of four weeks from the date of receipt of copy of order passed today.
(3) Needless to state that the custody of the children shall be subject to outcome of the aforesaid directions.19
Accordingly, the appeals are disposed of. Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ ALOK ARADHE, CJ ______________________________________ J.SREENIVAS RAO, J 28.11.2024 Note: Issue C.C by tomorrow.
(By order) vs