Mahesh Lavankush Dubey And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 7369 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD
                         WRIT PETITION NO. 7896 OF 2020
 1.       Mahesh s/o Lavnkush Dubey,
          Age : 44 years, Occu.: Service,
 2.       Mohini w/o Mahesh Dubey,
          Age : 43 years, Occu.; Housewife
          R/o.: N-9, H-24/1, H-Sector,
          Shrikrushna Nagar,
          CIDCO, Aurangabad                             ... PETITIONERS
                  VERSUS
 1.       The State of Maharashtra
          Through the Secretary,
          Ministry of Women and Child Development
          Department Mantralaya,
          Mumbai-32
 2.       The District Collector,
          Jalna, District : Jalna
 3.       The District Collector,
          Aurangabad, District : Aurangabad
 4.       The Child Welfare Committee,
          Jalna, District : Jalna
 5.       The Superintendent Late Rajkunwar
          Rameshchandra Bang Shishugrah,
          Sneh Sadan, Mantha-Ambad Bypass
          Maa Rani Sati Nagar, behind
          Vyankatesh Nagar, Saraswati Chowk,
          Jalna
 6.       SAKAR (Society for Adoption, Knowledge,
          Awareness and Resource) Ajmera Complex,
          Plot No. 177, Jyoti Nagar,
          Aurangabad.
 7.      Central Adoption Resource Authority (CARA).
         SARA, 2nd floor, Commissionerate Women
         and Child Development,
         28 Queens Garden
         Near Old Circuit House, Pune              ... RESPONDENTS
                                    ....

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 Mr. S.N. Pagare, Advocate for petitioners.
 Mr. K.N. Lokhande, AGP for respondent nos. 1 to 4.
 Mr. S.E.Siddiqui, Advocate for respondent no.5.
 Mrs. A.V. Gondhalekar & Ms. Priya Gondhalekar, Advocates for
 respondent no.6.
 Mr. A.G. Talhar, Assistant Solicitor General for respondent no.7.
                                     ....

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

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

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

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

consent of all the parties at admission stage.

2. The petitioners are husband and wife. They are childless. They

have decided to adopt a child when doctors opined that there is no

chance to have a child from their wedlock. The petitioners

approached respondent no.5 / The Superintendent Late Rajkunwar

Rameshchandra Bang Shishugrah, Sneh Sadan, Jalna in search of

adoption of a child. They met with the officials of the said institution

and disclosed their intention to adopt a baby child. Respondent

no.5 / institution agreed for the adoption and accordingly the

petitioners were asked to execute Foster Care Agreement.

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Accordingly, the petitioners had executed Foster Care Agreement on

25/10/2019. As per the Foster Care Agreement, custody of an orphan

baby namely Poonam was handed over to the petitioners on

29/10/2019. As per the Foster Care Agreement, during the period of

foster care of child, it was agreed to complete legal formalities under

the provisions of Law of Adoption by filing necessary adoption

petition before the District Court at Jalna. It was agreed that custody

of the child would be temporary with the petitioners in view of Foster

Care Agreement.

3. Respondent no.5 / institution has also decided to seek police

verification of the background of the petitioners' family for adoption

purpose. According to the petitioners, the baby child was under their

care and custody from 29/10/2019 to 30/12/2019. They had taken

utmost care during the said period and raised the child with love and

affection. The petitioners received a call from respondent no.5 /

institution instructing to hand over the custody of the child

immediately. Accordingly, the petitioners handed over the custody of

the bay child on 30/12/2020 to respondent no.5 / institution.

According to the petitioners, it was obligatory on the part of

respondent no.5 / institution to guide the petitioners to complete

legal procedure of adoption. Respondent no.5 / institution did not

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follow due procedure of adoption while handing over the custody of

the child to the petitioners. The petitioners are financially sound and

capable to take care of the child. They have also registered their

names on the Government Portal 'CARA' for adoption of their child

and same is acknowledged by CARA by which the petitioners were

instructed to upload all the requisite documents within 30 days and

the petitioners have complied with the same. The petitioners received

the response from CARA. The petitioners were instructed to contact

the agency i.e. respondent no.5 / institution, who is running

orphanage under the Maharashtra Charitable Foundation at Jalna.

4. Accordingly, the petitioners approached respondent no.5 /

institution. Home study of the petitioners was conducted and same

was approved by Specialized Adoption Agency. The petitioners were

advised for further instructions. According to the petitioners, they

have been orally informed that their names are incorporated in the

waiting list for adoption and it would take at least 2 years for

adoption of a child. They have been informed that as per their turn,

the child would be made available. According to the petitioners, they

would not get the custody of the child Poonam, who was under care

and custody of the petitioners from 29/10/2019 to 30/12/2019.

According to the petitioners, the child is presently under the care of

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charitable institution namely SAKAKR / respondent no.6. In the

above premise, the petitioners are seeking directions to respondent

nos. 2 to 7 to hand over the custody of the baby child Poonam by

initiating legal proceedings for adoption and till completion of

procedure, custody of the child may not be given to other parents,

who are on the wait list of CARA.

5. Heard Mr. S.N. Pagare, learned counsel for the petitioners, Mr.

A.G. Talhar, learned A.S.G. for respondent No.7, Mr. K.N. Lokhande,

learned A.G.P. for respondent Nos.1 to 4 / State, Mr. S.I.Siddiqui,

learned counsel for respondent No.5 and Mrs. A.V. Gondhalegar and

Ms. Priya Gonhalekar, learned Advocates for respondent No.6.

6. Perused the copy of Foster Care Agreement, copy of

communication dated 0712.2019 and copies of e-mails produced by

the petitioners. We have also gone through the affidavit filed on

behalf the State in connected writ petition Nos. 6314 of 2020 and

7836 of 2020 and affidavit filed on behalf on respondent No.6 /

SAKAR.

7. Mr. Pagare, learned counsel for the petitioner vehemently

submitted that the child was under care and custody of the petitioners

from 29.10.2019 to 3012.2019. The petitioners have taken utmost

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care of the child namely Poonam. The custody of the child was with

the petitioners on the basis of the Foster Care Agreement. It was

necessary on the part of respondent No.5 to complete the legal

procedure of adoption. The names of the petitioners have been

uploaded on the Government portal CARA. As per the instructions,

the petitioners have uploaded all the necessary documents within

30days. The petitioners have approached respondent No.5 as per the

instructions of CARA. The home study report of the petitioners was

also approved by the Specialized Adoption Agency. Now, respondent

No.5 is telling that the petitioners have to wait at least two years for

adoption. They would get the child as per their turn and would not

get custody of child Poonam. As per the instructions of respondent

No.5, the petitioners have handed over the custody of child Poonam

to respondent No.5 on 30.12.2019, who is presently under care of

SAKAR / respondent No.6. Mr. Pagare submitted that the petitioners

are entitled to get custody of child Poonam by completing procedure

of adoption.

8. Mr. Lokhande, learned A.G.P. for State / Respondent Nos. 1 to 4

submitted that respondent No.5 has not followed the mandatory

procedure for adoption as per the provisions of the new Juvenile

Justice Act, 2015 ((hereinafter referred to as the "JJ Act 2015") and

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Rules made thereunder of 2018. He submitted that CWC has passed

the order of Foster Care Agreement without assessing the suitability of

the petitioners of foster parents. He submitted that at present the child

Poonam is admitted in SAKAR (Specialized Adoption Agency) at

Aurangabad and said institution is taking good care of the child. He

submitted that the petitioners have no right to select the child. He

submitted that in SMPIL No.2 of 2020, this Court has issued certain

directions and in pursuance of the directions given by this Court, F.I.R

is filed against the members of the CWC, Jalna and respondent No.5

as well for illegalities committed in the process of adoption. Mr.

Lokhande, learned AGP submitted that the petitioners are not entitled

to get back custody of the child Poonam.

9. Mrs. Gondhalekar, learned advocate for respondent no.6 invited

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

She submitted that 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 CARA guidelines are mandatory. The child Poonam cannot be

given back into the custody of the petitioners.

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10. Mr. Talhar, learned A.S.G. for respondent No.7 argued in tune

with argument advanced by learned A.G.P. and learned counsel for

respondent No.6. Mr. Siddiqui, learned counsel for respondent No.5

supported the action and stand taken by respondent No.5 / SAA.

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

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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."

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

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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)

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. In the case at hand, it is evident that the petitioners approached

to respondent No.5 for adoption of child. It is noticed that the

petitioners were asked to execute Foster Care Agreement and

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accordingly they seem to have executed the same on 25.10.2019. On

going through the Foster Care Agreement, it is noticed by us that

respondent No.5 has given go by to the procedure while giving a child

in Foster Care Agreement. Respondent No.5 is a Specialized Adoption

Agency and obviously required to adhere the JJ Act and Rules. The

child is in need of care and protection required to be produced before

the CWC, it is mandatory for the CWC to put up a child (up to age of

six years) with Specialized Adoption Agency. It is mandatory for

Specialized Adoption Agency to upload the information of a child in

need of care and protection within three days of CARINGS, which is a

portal of CARA. It facilitates guidance for adoption process. It is

necessary for CWC to pass an order declaring the child is free for

adoption as per Adoption Regulations 2017. After the child is made

free for adoption, the Specialized Adoption Agency needs to upload

that information within 30 days from the order (i) child status report,

(ii) medical examination report and (iii) photograph of the child on

CARINGS. Then only as per the Regulation 10(2) only legally free

child is referred to PAP by CARA. After referral by CARA, PAP is

supposed to reserve the child and within 48 hours PAP is required to

visit SAA. The suitability of the proposed adoptive parents needs to be

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assessed by the Adoption Committee. The seniority list needs to be

maintained.

15. On going through the pleadings of the parties and documents

on record, it is evident that Foster Care Agreement was executed on

25.10.2019 without following the above referred mandatory

provisions of Adoption Regulations 2017. Certainly the Foster Care

Agreement dated 25.10.2019 is not in consonance with the Rule 25 of

Rules 2018.

16. It is pointed out by Mrs. Gondhalekar, learned counsel for

respondent No.6 that in the case at hand Rule 25(9) of Maharashtra

State Juvenile Justice (Care and Protection of Children) Rules, 2018

are not adhered to. It is mandatory to conduct home study before

placing the child in Foster Care. The home study report from the

District Child Protection Unit is not placed on record. The medical

reports of the petitioners are not placed on record and certainly that

Foster Care Agreement of child Poonam is in blatant violation of the

JJ Act 2015 and Rules 2018. Section 55 of the Act of 2015 is not

complied with before execution of Foster Care Agreement. The CWC

has not followed due procedure.

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17. Mr. Pagare, learned counsel for the petitioners has relied upon

the following 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.

(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.

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(iii) Mr. Pagare, 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. Pagare, 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 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

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

protected and to prevent the same, certain directions are issued.

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

Mr. Pagare, learned advocate for the petitioners, none of them

supports to his case.

19. 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 Foster Care

Agreement executed between the petitioners and respondent No.5 is

found to be in breach of provisions of JJ Act and Rules. The CWC,

Jalna seems to have given custody of a child Poonam to the

petitioners by way of Foster Care Agreement by violating mandatory

provisions of JJ Act, 2015 and Rules 2018. The entire process is found

to be defective in the eye of law.

20. We understand the feelings and emotions of petitioners. We

also understand the petitioners' may have developed attachment with

the child Poonam. 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.

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21. 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.

22. It is further brought to our notice that 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 / Trustees

of Marwadi Charitable Trust, Jalna regarding illegalities committed in

the process of adoption.

In view of the above, the prayers made by the petitioners

cannot be granted. The best interest of the child shall be kept in mind

through out the adoption process. Unfortunately, the best interest of

the child seems to have been defied.

23. Having regard to the above reasons and discussion, we do not

find any merit in the petition. Hence, we pass the following order.

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                                  ORDER

 (i)      The writ petition is dismissed.

 (ii)     Rule discharged.

 (iii)    No order as to costs.



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


 S.P. Rane




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