Bombay High Court
Holy Cross Home For Babies By ... vs State Of Maharashtra Thr. ... on 29 August, 2017
Bench: V.M. Deshpande
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.95 OF 2017
1. Holy Cross Home for Babies
By its Superintendent Sister Terese Jose
Aged about 63 years, R/o C/o Holy Cross
Convent, Amravati-Camp, Amravati,
Taluka and District Amravati.
2. Mr. Mukund s/o Ashok Wagh,
Aged about 43 years, Occupation Business
R/o 1676/18/C Saptashrungi Nagar
Ugaon Road at Post Niphad
Taluka Niphad, District Nashik. ..... Applicants.
:: VERSUS ::
State of Maharashtra,
Through Chairman,
Child Welfare Committee
Amravati, District Amravati ..... Non-applicant.
================================================================
Shri Nidhi Singhvi, Adv. h/f Shri A.S. Kilor, Counsel for the
applicants.
Shri R.S. Nayak, Addl.P.P. for the State.
================================================================
CORAM : V.M. DESHPANDE, J.
DATE : AUGUST 29, 2017.
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ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel for the respective
parties.
2. A Miscellaneous Civil Application No.182 of 2016
was filed in the Court of learned District Judge at Amravati.
The said application was under Section 58(3) read with
Sections 56 and 57 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 for permission to adopt a
child. The said application is rejected by learned District
Judge-3 at Amravati on 17.6.2017 and applicant No.2 was
directed to hand over custody of child 'Kabir' to applicant
No.1 within a period of one month. Hence, both the applicants
approached to this Court in this criminal revision application.
3. Applicant No.1 is a Charitable Institute looking
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after destitute and orphans. Applicant No.2 was intending to
adopt a child. Therefore, applicant Nos.1 and 2 jointly filed
an application for obtaining necessary permission to adopt a
child as contemplated under Section 58(3) read with Sections
56 and 57 of the Juvenile Justice (Care and Protection of
Children) Act, 2015.
4. On 15.8.2016 a male child 'Kabir' was declared free
for adoption by the Child Welfare Committee at Amravati.
5. Learned Judge of the Court below found fault with
order dated 15.8.2016, declaring the said child legally free for
adoption, passed by the Child Welfare Committee at Amravati
since according to the reasoning, the meeting was held on
5.8.2016 whereas the Members of the Committee have signed
the same on 15.8.2016. Further, the Chairperson of the
Committee has not put date under his signature. Thus,
according to learned Judge of the Court below, it creates a
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doubt about holding of meeting dated 5.8.2016 and order
dated 15.8.2016 declaring child 'Kabir' legally free for
adoption.
6. This Court, while issuing notice in the matter,
granted the Stay of handing over custody of the minor child to
applicant No.1 by applicant No.2.
7. Chairperson of the Child Welfare Committee at
Amravati, Dr. Dilipkumar Haribhau Kale has filed his detailed
reply.
8. As per the said reply, on 11.1.2016 an unmarried
mother Sangita Chaudhari approached to Ish Daya Shishu
Bhavan, Missionaries of Charity at Amravati with her child
'Kabir', who was born to her on 4.1.2016, with an intention to
abandon the said child. As per the practice, the said
Missionaries of Charity directed the said unmarried mother to
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approach to the Child Welfare Committee at Amravati for
obtaining a consent since without consent of the Child
Welfare Committee, the said Missionaries do not keep custody
of any child. It is further stated in the reply that the Child
Welfare Committee complied all legal formalities and obtained
a bond from unmarried mother Sangita Chaudhari in respect
of custody of child 'Kabir' to Ish Daya Shishu Bhavan,
Missionaries of Charity at Amravati on 11.1.2016.
9. The reply further states that subsequently, Ish
Daya Shishu Bhavan, Missionaries of Charity at Amravati
stopped activities of keeping custody of abandoned child.
Therefore, the Child Welfare Committee handed over custody
of child 'Kabir' on 5.8.2016 to applicant No.1 after completing
all procedural formalities by the Child Welfare Committee at
Amravati.
10. On 15.8.2016, the Child Welfare Committee at
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Amravati passed an order under Rule 33(3)(c) of the Rules
made under the Act declaring said child 'Kabir' free for
adoption. The Chairman given an explanation that due to
mistake, only the date could not be mentioned. As per the
reply, it is clear that order dated 5.8.2016 is a distinct than
order dated 15.8.2016. Vide order dated 5.8.2016, custody of
child 'Kabir' was transferred by the Child Welfare Committee
under Rule 38(1) of the Rules from Ish Daya Shishu Bhavan,
Missionaries of Charity at Amravati in favour applicant No.1
whereas order dated 15.8.2016 shows that male boy was legally
free for adoption.
11. Even, the impugned order shows that the claim of
applicant No.2 for taking a boy in adoption was found to be a
genuine by learned District Judge herself. Further, the need
of applicant No.1 was also found to be a genuine and logical.
In that view of the matter and in view of the explanation
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given by the Chairperson of the Child Welfare Committee at
Amravati on oath that only due to mistake, date 15.8.2016
remained to be mentioned. By taking hyper technical view,
wisdom of the Child Welfare Committee cannot be questioned.
12. In that view of the matter and in view of the fact
that applicant No.2 is found to be genuinely adopting a male
child, in my view, the impugned order is required to be set
aside. Hence, I pass the following order:
ORDER
i) The criminal revision application is allowed.
ii) Order passed by learned District Judge-3 at
Amravati dated 17.6.2017 in Miscellaneous Civil
Application No.182 of 2016 is hereby quashed and
set aside.
iii) Order passed by the Child Welfare Committee
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at Amravati dated 15.8.2016 is upheld.
Rule is made absolute in the aforesaid terms. No
order as to costs.
JUDGE
!! BRW !!
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