Sachin Anatrao Thakre And Another vs The Union Of India And Others
2021 Latest Caselaw 7360 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD
                           WRIT PETITION NO. 6314 OF 2020
1.       Sachin s/o Anantrao Thakre,
         Age : 34 years, Occu.: Government service,

2.       Manisha w/o Sachin Thakre,
         Age : 34 years, Occu.; Housewife
         R/o.: At post : Shirajgaon Deshmukh,
         Tal.: Khamgaon, District : Buldhana,
         Presently R/o.: Tahsil Quarter No.1,
         Tahsil Hniwas, Khamgaon,
         Tq. Khamgaon, Distric t: Buldhana ...          PETITIONERS
                 VERSUS
1.       The Union of India,
         Through the Secretary,
         Department of Women and Child Development,
         1, Canning Lane ( Pandit Ravi Shankar Shukla Lane),
         Near Bhatiya Vidya Bhavan Bus Stop,
         Kasturba Gandhi Marg,
         New Delhi - 110 [email protected]
2.       Central Adoption Resource Authority,
         Through the Member Secretary and CEO,
         Or through the Director,
         Ministry of Women and Child Development,
         West Block 8, Wing 2, 1st Floor, R. K. Puram,
         New Delhi - 110 006 (India)
         [email protected]
3.       The State of Maharashtra,
         Through the Secretary,
         Women and Child Development Department,
         3rd Floor, New Administrative Building,
         Madam Kama Road, Hutatma Raiguru Chowk,
         Mumbai - 400 032. Maharashtra, India.
4.       The State Adoption Resource Agency,
         Through The Commissioner,
         2nd Floor, Women and Child Development
         Commissionerate, 28, Queens Garden,
         Near Old Circuit House, Pune-411 001.
         [email protected]




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5.       District Women and Child Development Officer,
         Age : Office of the District Woman and Child
         Development, Administrative Building,
         Office of the District Collector,
         Ground Floor, Jalna- 431203
6.       District Women and Child Development Officer,
         Office at Plot No.9, Jadhav Building,
         Khokadpura, Aurangabad.
7.       The Chairman,
         Child Welfare Committee,
         c/o.: Observation Home, Sant Gadge Nagar,
         Ambad Road, Jalna, Tal. & Dist. : Jalna.
8.       The Chairman,
         Child Welfare Committee,
         C/o.: Observation Home, N-12, HUDCO,
         Near HUDCO Corner, Aurangabad
9.       SAKAR,
         (Society for Adoption, Knowledge,
         Awareness and Research)
         Through the Superintendent / Manager,
         "Ajmera Complex", Plot No. 177, Jyoti Nagar,
         Maini Road, Jyoti Nagar, Aurangabad-431005
         (M.S.) India
         Email [email protected]
         Website-www.sakar.org.in                ...         RESPONDENTS
                                      ....

Mr. Bipinchandra K. Patil, Advocate for petitioners.
Mr. A.G. Talhar, Assistant Solicitor General for respondent nos.1 & 2.
Mr. K.N. Lokhande, AGP for respondent nos. 3 to 6.
Mrs. K.N. Gondhalekar & Ms. Priya Gondhalekar, Advocates for
respondent no.9.
                                      ....


                          CORAM :   S. V. GANGAPURWALA &
                                    SHRIKANT D. KULKARNI, JJ.

                 JUDGMENT RESERVED ON         : 9th APRIL, 2021
                 JUDGMENT PRONOUNCED ON: 7th MAY, 2021





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                                         ...
JUDGMENT :(PER SHRIKANT D. KULKARNI) :

1. Rule. Rule made returnable forthwith. Heard finally with consent of

all the parties at admission stage.

2. Factual Matrix :-

i) The petitioners are husband and wife. They blessed with one

son namely Dewanshu. In an unfortunate accident, they lost their son,

who was 4 & 1/2 years of age. The destiny did not stop there. The

petitioners approached to the doctors to take a chance of pregnancy. The

doctors after examining petitioner no.2 informed that she has lost her

capacity to have biological child.

ii) On 22.11.2019, Samaj Bhan Teem Social Group, a local NGO

received information about abandonment of a child on road at

Ghansawani. It is informed that the child was with a woman, who has no

source of income. She is residing alongside of road and unable to nurture

her son. The child is in bad health. The child was malnourished. On

receiving such information from the villagers that the woman never takes

care of her child. That the mother has practically abandoned the child

and sometimes never returned back. Informed to the petitioners about the

same. In good faith, the child was given into the custody of the

petitioners on 23rd November, 2019 by Samaj Bhan Teem, a NGO.

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       iii)    On 13/01/2020, the mother of the child was searched and

produced before the Child Welfare Committee at Jalna. On the said date,

the mother of the child shown her inability to look after her son and

executed surrender deed. By taking into consideration welfare of the

child on 13/01/2020 after completing necessary legal formalities the child

was admitted in the institution at Jalna and on the same day custody of

the child was given to the petitioners on Foster Care Order. Thereafter,

the petitioners have taken utmost care of the child including medical

treatment and now he is healthy.

iv) The petitioners were not aware about the legal procedure of

adoption. After getting the knowledge of adoption, the petitioners have

decided to file petition before the District Court at Jalna. Unfortunately,

the petitioners could not file the same due to COVID-19 pandemic.

v) On 28/08/2020 the petitioners received a phone call from

Member of the Child Welfare Committee, Jalna. The petitioners were

instructed to remain present in the office of CWC at Jalna along with the

child on 31/08/2020.

vi) Accordingly, the petitioners remained present along with the

child on 31/08/2020 before the Child Welfare Committee at Jalna. The

child Dewanshu, who was approximately 17 months was taken back from

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the custody of the petitioners and admitted in the society for Adoption,

Knowledge, Awareness and Research Institute at Aurangabad, known as

SAKAR, Aurangabad.

vii) Feeling aggrieved by the impugned decision by the CWC at

Jalna, the petitioners have approached this court by invoking writ

jurisdiction under Article 226 of the Constitution and sought custody of

the child again coupled with prayer to adopt the child as per the

provisions of law.

3. Heard Mr. Bipinchandra Patil, learned advocate for the petitioners,

Mr. Talhar, learned Assistant Solicitor General for respondent nos. 1 & 2,

Mr. K. N. Lokhande, learned AGP for respondent nos.3 to 6, Mrs. A.V.

Gondhalekar and Ms. Priya Gondhalekar, learned advocates for

respondent no.9.

4. Respondent nos. 7 and 8 though served, did not respond and

marked absent.

5. Perused the Foster Care order dated 13/01/2020 passed by the

Child Welfare Committee, Jalna and documents produced along with list

at page no.22. We have also perused copy of affidavit in reply filed on

behalf of respondent nos. 3 and 6, copy of release deed dated

13/01/2020, copy of institutionalization order dated 13/01/2020, copy of

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the Foster Care order dated 13/01/2020 passed by CWC, Jalna and

affidavit in reply filed on behalf of respondent no.9 with list of documents

at page no.75.

6. Mr. Patil, learned advocate for the petitioners vehemently submitted

that impugned action of the CWC, Jalna of removal of the child Devanshu

17 months old, from the custody of the petitioners after a long period, is

erroneous and against the principles of justice, equity and good conscious.

The CWC has passed order without giving notice, intimation and without

following due procedure of law. The impugned action is bad in law. Mr.

Patil submitted that welfare of the child should be paramount

consideration. For 10 months the child was with petitioners. They are

attached with the child. The child has been taken away, which has caused

mental trauma to the petitioners. The CWC has not considered the object

of Juvenile Justice (Care and Protection of Children) Act, 2015, National

Charter for Children 2003 and National Policy for adoption. Mr. Patil

submitted that the CWC has not considered the Chapter 7 of the Juvenile

Justice Act, 2015. He submitted that the petitioners are ready to complete

all the legal formalities for adoption of a child as per CARA guidelines and

as per the provisions of Juvenile Justice Act 2015. He submitted that the

CARA has powers to relax certain conditions for adoption procedure. The

child, Devanshu may be given into the custody of the petitioners, which is

in the best interest of the child.

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7. Mr. A.G. Talhar, learned Assistant Solicitor General of India

appearing for respondent nos.1 and 2 submitted that the procedure laid

down under the Juvenile Justice Act, 2015 and Rules thereunder need to

be strictly followed. He submitted that Section 35 provides surrender of a

child. In the case at hand said mandatory provision is not followed.

Sections 31 and 32 provide how child is to be produced before CWC. He

submitted that Section 44 of the JJ Act also provides provision of foster

care before a child is given in adoption, child should be free as

contemplated under Section 38 of the JJ Act. He submitted that in the

present case provisions of the JJ Act and Rules made thereunder are not

followed while giving custody of a child to the petitioners. He submitted

that it is a clear case of breach of mandatory provisions of JJ Act and Rules

made thereunder by the petitioners and Specialized Adoption Agency. In

that background the petitioners are not entitled to get back custody of the

child.

8. Mr. K. N. Lokhande, learned AGP for the State / respondent nos. 3

to 6 submitted that the petitioners have obtained the custody of the child

directly from local NGO namely Samaj Bhan Organization. Said act is in

violation of Section 31 of the Juvenile Justice Act. The child ought to have

produced before the CWC. The proper procedure is not followed. The

petitioners have not followed the CARA guidelines, which are mandatory

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for adoption of a child. Mr. Lokhande invited that in Suo Motu Public

Interest Litigation No. 2 of 2020, as per the directions of this court, the

inmates admitted in Marwadi Charitable Trust, Jalna, Child Care

Institution, (CCI) and Specialized Adoption Agency (SAA) three inmates,

who were given in Foster Care including Devanshu, now they are in the

custody of respondent no.9 SAKAR. He submitted that CWC, Jalna has

given the child in Foster Care on the basis of release deed in gross

violation of Juvenile Justice Act, 2015. The CWC has not followed the

Juvenile Justice Act. The CWC, Jalna has also not followed the rules of

Maharashtra Juvenile Justice (Care and Protection of Children) Rules,

2018 for adoption of a child by the foster family.

9. The CWC has passed the order of Foster Care simply on the basis of

social investigation report, which is also incomplete. There is no home

study report to assess the suitability of the petitioners of foster parent. Mr.

Lokhande submitted that local NGO namely Samaj Bhan Organization and

the present petitioners are involved in illegal adoption process for personal

gain without protecting best interest of the child. He submitted that at

present the child Devanshu is admitted in SAKAR (Specialized Adoption

Agency), Aurangabad by the order of CWC, Aurangabad and said

institution is taking good care of the child. He submitted that the

petitioners have no right to select or to take custody of the child before

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registration of a child on the portal. In conclusion, Mr. Lokhande, learned

AGP submitted that the petitioners are not entitled to get back custody of

the child. The petition devoid any merit and liable to be dismissed.

10. Mrs. Gondhalekar, learned advocate for respondent no.9 invited our

attention to the provisions of the Juvenile Justice Act and Rules. She

submitted that procedure of handing over of a child is prescribed in

Juvenile Justice Act, 2015 and Rules made thereunder. It is mandatory

that any child in need of care and protection must be produced before the

CWC without delay. The child Devanshu was falling in the definition of

child in need of care and protection. Even then, the child was not

produced before CWC but custody of the child was handed over to the

petitioners in gross violation of provisions of Juvenile Justice Act and

Rules. Local NGO- Samaj Bhan Organization has no legal right to hand

over the custody of the child to the petitioners. Neither the police station

nor CWC, Jalna was informed about the child in need of care and

protection by Samaj Bhan Organization or the petitioners and thereby

given total goodbye to the provisions of Juvenile Justice Act and Rules

made thereunder. The mandatory rules are not followed while giving

custody of a child under Foster Care Agreement. The CARA guidelines are

not followed. She submitted that the child is now in safe hands of

Specialized Adoption Agency - SAKAR. The procedure for adoption and

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CARA guidelines are mandatory. The child Devanshu cannot be given

back into the custody of the petitioners.

11. The Juvenile Justice (Care and Protection of Children) Act, 2015

(hereinafter referred to as 'JJ Act' for brevity) came into force with effect

from 31/12/2015. The Government of India has also framed JJ Act, 2015

Models Rules 2016 and the Adoption Regulations, 2017. The State is

empowered to frame its own rules by invoking Section 110 of the JJ Act.

In exercise of the powers conferred by Sub-Section (1)(2) of Section 110

of the JJ Act, (2) of 2016 and all other powers enabling in that behalf the

Government of Maharashtra has framed the Rules known as the

Maharashtra State Juvenile Justice (Care and Protection of Children)

Rules 2018 effective from 13th March, 2018.

12. The above referred Act, Rules and Regulations governed the field of

adoption in India. Adoption is a process other than the birth process,

which creates parents and child relationship. It is a social and legal

process by which a child of one set of parents becomes the child of another

set of parents. Adoption as defined is the process through which the

adopted child is permanently separated from the biological parents and

becomes the legitimate child of the adoptive parents with all rights,

privileges and responsibilities that are attached to the relationship. JJ Act

introduced expression "child in need of care and protection."

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13. Section 68 of the JJ Act relates to Central Authority known as

Central Adoption Resource Authority to promote in-country adoptions and

to facilitate inter-state adoptions in coordination with State Agency. CARA

also perform the function of inter-country adoptions. Chapter 8 of JJ Act,

2015 deals with adoption. Section 56 relates to adoption. Section 57

relates to eligibility of a prospective adoptive parents. Section 58 provides

procedure for adoption by adoptive parents living in India. Section 61

provides court procedure for adoption. Section 67 deals with State

Adoption Resource Agency. The new guidelines issued by the Central and

State Government simplify entire process of adoption and bring in greater

transparency and clarity in the process. The following is broadly the

process followed for adoption:

"a) Parents register online on CARINGS (Child Adoption Resource Information and Guidance System) and select the preferred Adoption Agency for HSR (Home Study Reporty) and State

b) Required documents have to be uploaded within 30 days of registration.

c) Specialized Adoption Agency (SAA) conducts Home Study Report (HSR) of the PAPs and uploads it on CARINGS within 30 days from the date of submission of required documents on CARINGS.

d) Suitability of PAPs is determined (if not found suitable, PAPs informed with reasons for rejection)

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e) PAPs reserve one child, as per their preference from up to 6 children.

f) PAPs visit the adoption agency within 15 days from the date of reservation and finalize.

g) If the child is not finalized within stipulated time, the PAPs come down in the seniority list.

h) On acceptance of the child by the PAPs, SAA completes the referral and adoption process (on CARINGS)

i) PAPs take the child in pre-adoption foster care and SAA files petition in the court and the adoption Court order is issued.

j) Post-adoption follow-up report is conducted for a period of two years.''

14. Now coming to the fact of the case on hand :

Child, Dewanshu was found abandoned on 22/11/2019 by local

NGO Samaj Bhan group. The child was not produced before the CWC at

Jalna within a period of 24 hours as per Section 31 of the JJ Act, 2015 by

the local NGO Samaj Bhan group, but was given in custody of the

petitioners on same day viz. 22.11.2019 by said Samaj Bhan Group. Child

Dewanshu (then 7 months old) was produced before the CWC, Jalna on

13/01/2020 by local NGO Samaj Bhan Group.

15. Biological mother of the child was produced before CWC Jalna on

13/01/2020. It is stated that she denied to take responsibility of the child

and executed release deed on 13/01/2020 before CWC Jalna and on that

basis CWC has placed the child in foster care with the petitioners.

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16. The welfare of a child shall be the paramount consideration while

giving the child in adoption.

17. On going through the pleadings and affidavits of the parties it is

evident that local NGO Samaj Bhan organization has given custody of

child Dewanshu directly to the petitioners on the same day it was found

abandoned by said local NGO. It is not clear whether said local NGO is

duly registered under the Maharashtra Public Trust and J.J. Act and Rules.

Section 31 of the J.J. Act provides that any child in need of care and

protection shall be produced before the CWC without any loss of time

within a period of 24 hours excluding the journey time. In the case at

hand, above said local NGO has violated Section 31 of the Act by not

producing the child before CWC Jalna. Child Dewanshu was found

abandoned on 22/11/2019 and he was produced for the first time before

CWC Jalna on 13/01/2020 by causing inordinate delay. Further it is

evident that mother of the child seems to have executed a release deed in

respect of her child in presence of CWC Jalna on 13/01/2020. The release

deed dated 13/01/2020 is not according to the provisions of the JJ Act

and Rules and same is not in prescribed format. Section 35 of the Act

provides that CWC needs to complete the process of enquiry and

counselling of the parents, who wish to surrender the child before CWC.

After completion of inquiry and counselling of said parents, if CWC

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satisfies then only parents shall execute a surrender deed. In the case at

hand biological mother has executed a release deed instead of surrender

deed, which is against the provisions of JJ Act, 2015. Further more it is

evident that CWC has completed the process of institutionalization and

surrender of said child hurridely and given the said child in foster care to

the petitioners on the basis of release deed on the same day in gross

violation of JJ Act, 2015. The institutionalization order passed by CWC

dated 13/01/2020 is defective in the eye of law.

18. Further it is evident that CWC has not conducted proper enquiry in

respect of parents of the child who intend to surrender the child before

CWC. In the case at hand biological mother of the child stated to be 50

years old. On the date of execution of release deed the child was 7

months old. It was necessary for the CWC Jalna to verify the documents

of biological mother and verify the circumstances which compelled the

mother to surrender the child. What is family background of the

biological mother, what are the antecedents etc., seem to have not verified

by CWC though Act casts duty on it.

19. Further it is evident that child is given in temporary custody of the

petitioners on the basis of foster care agreement on 13/01/2020 i.e. on

the very day of release deed allegedly executed by the mother. According

to the Rule 25 read with Rule 46 of JJ Act Rules 2018 the CWC shall take

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decision related to placement of a child for foster care. The children in

age group of 6 and above may be considered for placement in foster care

in the circumstances mentioned in sub-Rule 1 of Rule 46. The child to be

given in foster care must be legally free for adoption. Such child shall be

provided a permanent family through adoption as per adoption

regulations. In case at hand CWC Jalna has given the child in foster care

to the petitioners for a period of 90 days by its order dated 13/01/2020

which is contrary to Rule 46(v) of the Rules 2018.

20. The question poses how CWC Jalna has given the custody of a child

to the petitioners without completing the process of surrender as

contemplated under Section 35 of the Act, 2015 and Rule 19(22) of Rules

2018. The order of foster care passed by CWC is before expiry of 2

months from the date of surrender and violative of above said provisions

of JJ Act and Rules.

21. Further it is evident that CWC has passed the order of foster care

simply on the basis of social investigation report, which is also incomplete.

There is no medical report to certify that child is fit to be given in foster

care. There is no home study report to assess the suitability of the

petitioners as a foster parent. Section 55 of the Act, 2015 casts duty on

CWC to declare the parents as fit for foster care. The CWC has not

followed due procedure.

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22. Once a child is produced before the CWC, the JJ Act, 2015,

Maharashtra Juvenile Justice (Care and Protection of Children) Rules,

2018 and guidelines of Central Adoption Resource Agency need to be

followed strictly to protect best interest of a child.

23. Further it is pointed out by learned Advocate for respondent no.9

Manager SAKAR that Specialized Adoption Agency (Smt. Rajkunvar

Rameshchandra Bang Shishu Gruha, Jalna) did not upload the

information of the child (CNCP) on CARA, CARINGS platform and even

not uploaded the information on National Tracking System for missing

and vulnerable children though it is mandatory as per the JJ Act, 2015.

24. It is pointed out by Mrs. Gondhalekar, learned advocate for

respondent no.9 that as per Rule 25(13) of the Rules 2018, the age of

foster parents should be above 35 years of age, but the age of the

petitioners is admittedly below 35 years and contravened Rule 25(13).

Mrs. Gondhalekar further pointed out that Rules 25((9) to 25 (16) are not

followed by CWC, Jalna / respondent no.7 and directly passed final order

of foster care of Dewanshu. It is clear-cut violation of the provisions of JJ

Act and Rules.

25. It is pointed out by Mrs. Gondhalekar, learned advocate that

Regulation no.7 of Adoption Regulation, 2017 deals with procedure

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relating to surrender of child. The said procedure is not adhered to by

CWC, Jalna. She submitted that Chapter-3 of Adoption Regulations, 2017

describes "adoption procedure for resident Indians". Regulation 10 relates

to referral of a child from Specialized Adoption Agency through Child

Adoption Resources Information and Guidance System (CARINGS) to

prospective adoptive parents. This regulation itself stipulates the seniority

of the prospective adoptive parents, the seniority is calculated from the

date of uploading of documents and completion of registration process in

CARINGS. The petitioners are required to follow the procedure and must

stand in the queue as a prospective adoptive parent to complete the

adoption procedure.

26. Mr. Patil, learned counsel for the petitioners has relied upon certain

citations in support of his argument, which are considered with the facts

of the case on hand

i) In case of Sivarama K. and others vs. The State of Kerala and

others, 2020(1)KLT, 294, the writ petition was filed to produce a child. It

was a writ of habeas corpus. In that case the biological parents had given

their child in adoption to the adoptive parents after fulfilling all the

provisions of the Hindu Adoption and Maintenance Act, 1956, that too,

after executing a registered adoption deed. The facts of the cited case and

the facts of the case at hand are quite distinguishable and as such said

decision is not anyway helpful to the petitioners.

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       ii)     In case of Aniruddha M. Railkar Vs. Indian Council for Social

Welfare reported in AIR Bombay R 2007 page 471, the Division Bench of

this Court was pleased to quash and set aside the order passed by the

Family Court, Pune rejecting the petitioners prayer for adoption of an

Indian child Shubham. On going through the citation, it is noticed that

CARA had given clearance for adoption and in that background the

parents who are foreign nationals of Indian origin residing in the U.S.A.

allowed to complete the adoption procedure. The facts of the case on hand

are quite different.

iii) Mr. Patil, learned advocate further placed his reliance in the

case of Harishbhai C. Limbachiya and another vs. State of Maharashtra

and others ( Writ Petition No. 1489 of 2017) decided by the Division

Bench at principle seat on 31 st August, 2017. On going through the same,

we noticed that it was a writ of habeas corpus. The Division Bench was

pleased to pass interim order regarding custody of the minor child to the

petitioners. It is not a final order and does not render any assistance to

the petitioners.

iv) Mr. Patil, learned advocate for petitioners further relied upon in

case of Petrik Francis Rodrigues and another vs. State of Maharashtra and

others, (Criminal Writ Petition No. 334 of 2017) decided by the Division

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Bench at principle seat on 14/02/2017. Again it was a case of writ of

habeas corpus and by way of interim order and taking into consideration

welfare of the minor child, interim custody was handed over to the

petitioners. It is not a final order.

v) In Suo Moto Writ Petition (Civil) No.4 of 2020 , decided on

03/04/2020 by the Supreme Court, it is held by taking into situation

COVID-19 pandemic, interest of the children should be looked into.

Interest of these children all of whom fall within the ambit of Juvenile

Justice (Care and Protection of Children) Act, 2015 should be protected

and to prevent the same, certain directions are issued.

27. Having regard to the stock of citations (supra) relied upon by Mr.

Patil, learned advocate for the petitioners, none of them supports to his

case.

28. We found merit in the argument advanced by the learned Assistant

Solicitor General, AGP and Mrs. Gondhalekar for respective respondents.

The case at hand is a classic example of breach of provisions of JJ Act,

2015 and Rules 2018 which deals with adoption of child who is termed as

child in need of care and protection. The child Dewanshu was in the

custody of the petitioners for a period of 7 months on the basis of foster

care agreement but that foster care agreement is found to be in breach of

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provisions of JJ Act and Rules. The CWC, Jalna by blatant violation of

mandatory provisions of JJ Act, 2015 and Rules 2018 seem to have given

custody of a child to the petitioners by way of foster care agreement. The

entire process is found to be defective in the eye of law.

29. We understand the feelings and emotions of petitioners. We also

understand the petitioners' may have developed attachment with the child

Dewanshu. At the same time, we cannot overlook mandatory provisions

of JJ Act, 2015 and Rules 2018, which provides welfare of a child before

giving a child in adoption. This Court allowed the petitioners to move

Relaxation Committee of Central Adoption Resource Authority and

directed CARA to consider the case of the petitioners having regard to its

peculiar facts. However, the Relaxation Committee vide its decision dated

11.02.2021 communicated that the present case does not come under the

preview of the Relaxation Committee constituted under the provision of

the Adoption Regulations Act 2017, which is passed on the JJ Act 2015.

30. In case of S. Vanitha (Smt. Vs. Deputy Commissioner, Bengaluru

Urban District and Others, reported in 2020 SCC online SC 1023, the

Hon'ble Supreme Court has emphasized upon the necessity to protect the

rights of the children so as to give purposeful interpretation to the

definition of child in need of care and protection under Section 2 (14) of

the JJ Act, 2015.

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31. In this background, we are of the considered opinion that the male

child in the facts and circumstances of the present case, is in need of care

and protection and proper procedure is not followed while giving the

custody to the petitioners on the basis of foster care agreement. The

petitioners are resident of Khamgaon, District Buldana. Local NGO Samaj

Bhan is from Jalna. The question poses how Samaj Bhan a local NGO

came to know that the petitioners are issueless and they want to adopt a

child. How a local NGO made contact with the petitioners on 22.11.2019

and handed over the custody of the abandoned child directly to the

petitioners also a suspicious circumstance. In SMPIL No. 2 of 2020

(Registrar (Judicial) Vs. Union of India and others), this Court has issued

certain directions and in pursuance of directions issued by this Court, the

District Women and Child Development Officer, Jalna has filed F.I.R.

bearing No.0577 of 2020 dated 18.12.2020 against the members of Child

Welfare Committee, Jalna and Directors of Marwadi Charitable Trust,

Jalna regarding illegalities committed in the process of adoption. In the

above background, the entire process of giving interim custody of child on

execution of foster care agreement in this case is highly tainted. There is

no application of provisions of JJ Act 2015 and Rules 2018.

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In view of the above, the prayers made by the petitioners cannot be

granted. We arrived at this conclusion by keeping the best interest of the

male child as being paramount consideration.

32. In view of above, we find that there is no merit in the writ petition.

Accordingly, the writ petition is dismissed. Rule is discharged. No order

as to costs.

   (SHRIKANT D. KULKARNI)                         (S. V. GANGAPURWALA.)
          JUDGE                                           JUDGE



S P. Rane