Nitin Suresh Adukia And Another vs The Union Of India And Others
2021 Latest Caselaw 7374 Bom

                                    1                         J WP 7836-20.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                        WRIT PETITION NO. 7836 OF 2020

1.       Nitin s/o Suresh Adukia,
         Age : 36 years, Occu.: Business,

2.       Priyanka w/o Nitin Adukia,
         Age : 32 years, Occu.; Housewife & small business

         R/o.: At post : House No.5-1-527,
         Troop Bazar, Jam Bagh Road,
         Jamuna Arcade, (Navarang Compled),
         B-Block, Flat No. 107,
         Hyderabad-5500 095 (Telengana)    ...              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.




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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]

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.       The Chairman,
         Child Welfare Committee,
         c/o.: Observation Home, Near Bachat Bhavan,
         Old Jalna, Jalna, Tal. & Dist. : Jalna.
         Email ID- [email protected]

7.       The Director,
         Bhartiya Samaj Seva Kendra,
         N-4, Plot No. 151, F- Secrtor,
         Guru Sahani Nagar, CIIDCO,
         Aurangabad.                                 ...         RESPONDENTS
                                   ....

Mr. Chaitanya V. Dharurkar, 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 5.
Mr. P.S. Agrawal, Advocate for respondent no.7.
Respondent No.6- Absent
                                 ....

                                    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. The petitioners are husband and wife and permanent

resident of Hyderabad, State of Telengana. Petitioner no.2 is

childless because of infertility problem. Petitioner No.2 took

medical treatment but no fruitful outcome. Therefore, the

petitioners decided to adopt a child. They had been to the

institution at Jalna. They attracted towards a child namely

Dhanashri @ Reeya, who was having medical problems. The

petitioners decided to take responsibility of that child on their

shoulders. They were ready to incur all the medical expenses.

They have decided to adopt the child Dhanshri @ Reeya and

accordingly approached to the CWC at Jalna by filing an

application. On 01.01.2020 the CWC passed an order and

Dhanshri @ Reeya was handed over to the petitioners on the

basis of Foster Care Order. The petitioners had decided to file

petition for adoption before the District Court at Jalna but

considering the health and medical condition of the child, they

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could not file petition immediately. But the petitioners have

registered themselves with the Central Adoption Research

Authority, New Delhi on 14.01.2020 as per procedure. The

petitioners could not file the petition for adoption due to COVID-

19 pandemic. The child was 3 months old when custody was

given to the petitioners on the basis of Foster Care.

3. According to the petitioners, the child is now very much

happy with the petitioners. On 10.09.2020 the petitioners

received call from CWC, Jalna to remain present on 29.09.2020.

On 29.09.2020 the child Dhanshri @ Reeya was not well and

was under medical treatment since 06.09.2020. Moreover, due

to Covid-19 pandemic it was not possible for the petitioners to

travel from Hyderabad to Jalna. The petitioners requested to

CWC Jalna to extend the time in background of illness of the

child and Covid-19 pandemic.

4. On 30.09.2020 a notice was received by the petitioners on

WhatsApp addressed to the Police Officials directing them to

produce the petitioners and the child before the Child Welfare

Committee on 05.10.2020. But due to some medical reasons

and Covid-19 pandemic, it was not possible for the petitioners to

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travel with child of 10 months old from Hyderabad to Jalna and

therefore, the petitioners again prayed for time.

5. On 16.10.2020, the petitioners filed an application before

the CWC at Jalna to extend Foster Care period / agreement and

also filed an application before the Central Adoption Resource

Authority and State Adoption Resource Authority requesting to

give the child Dhanashri @ Reeya to them in adoption. No reply

was received by the petitioners.

6. Feeling aggrieved and dissatisfied by the impugned notices

dated 10.09.2020 and 30.10.2020 the petitioners apprehended

that their child may be removed from their custody and in that

premise rushed to this court by invoking writ jurisdiction under

Article 226 of the Constitution of India.

7. Heard Mr. Chaitanya V. Dharurkar, learned Advocate for

petitioners, Mr. A.G. Talhar, Learned Assistant Solicitor General

for respondent nos.1 & 2, Mr. K.N. Lokhande, learned Assistant

Government Pleader for respondent nos. 3 to 5 and Mr. P.S.

Agrawal, learned Advocate for respondent no.7.

8. Respondent No.6/Child Welfare Committee, Jalna, though served, did not respond and marked absent.

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9. Perused the Foster Care order dated 01.012020 passed by

the Child Welfare Committee, Jalna (CWC), impugned notices

dated 10.09.2020 ad 30.10.2020 and other documents and

papers produced by the petitioners along with list at page

no.23. We have also perused copy of affidavit in reply sworn by

the District Women and Child Development Officer, Jalna filed

on behalf of respondent nos. 3 and 5 and the documents and

papers produced by the State.

10. Mr. Dharurkar, the learned Advocate for the petitioners

strenuously submitted that the impugned notices issued by the

CWC, Jalna asking them to handover custody of the child after

a long period is erroneous and against the principles of justice,

equity and good conscious. He submitted that the petitioners

could not produce the child before the CWC as per the

impugned communication due to illness of the child as well as

Covid-19 pandemic. There was no intention of the petitioners

to overlook the communication sent by the CWC, Jalna. The

learned counsel submitted that the petitioners have already

registered on the portal viz. CARA, New Delhi on 14.01.2020

as per the procedure. The petitioners could not file petition for

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adoption due to Covid-19 Pandemic at Jalna. Due to

extraordinary situation of Covid-19 pandemic, the petitioners

could not complete the adoption procedure. They are not at

fault. They have taken good care of the child during the foster

care and looked after the child with love and affection.

11. Mr. Dharurkar further submitted that the petitioners

are ready to complete all the legal formalities of adoption of

child as per CARA guidelines and provisions of Juvenile Justice

(Care and Protection of Children )Act, 2015 (hereinafter referred

to as 'the JJ Act, 2015'). In the meanwhile, child Dhanashri @

Reeya may be given in the custody of the petitioners by

considering the best interest of the child.

12. Mr. Dharurkar, the learned Advocate for the

petitioners has placed reliance on the following stock of

citations to buttress his arguments.

      (1)        Sivarama           K   and       ors   Vs.      State      of     Kerala,
                 MANU/KE/0027/2020

      (2)        Harishbhai C Limbachiya Vs State of Maharashtra, in

Writ petition No.1489/2017(Principal Seat,Bombay High Court)

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(3) Patrik Francis Rodrigues and anr. Vs. State of Maharashtra, in Writ Petition No. 334/2017, Bombay High Court.

(4) Aniruddha M. Railkar Vs. Indian Counsel for Social Welfare, 2007, STPL 8235 Bom.

(5) In Re Contagion of Covid-19 virus in Children Protection Homes.

(6) Sangram Singh Vs. Election Tribunal, Kotah, AIR 1955 SC 425

(7) State of Punjab and anr. Vs. Shyamlal Murari and anr.

AIR 1976 SC 1177.

13. Mr. A.G. Talhar, learned ASG appearing for respondent

nos.1 and 2 submitted that the procedure laid down under the

JJ Act, 2015 and the Maharashtra State Juvenile Justice (Care

and Protection of Children) Rules 2018 (hereinafter referred to

as the Rules, 2018) need to be strictly followed. He submitted

that Section 35 of the JJ Act, 2015 provides surrender of a child

and giving child in foster care. He submitted that as per the JJ

Act, 2015 before the child is given in adoption, child should be

free as contemplated under Section 38 of the JJ Act, 2015. He

submitted that in the present case provisions of the JJ Act and

Rules made thereunder are not followed while giving custody of

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a child to the petitioners under foster care order. Both, the

CWC and Specialized Adoption Agency at Jalna have acted in

violation of the provisions of the JJ Act, 2015 and Rules 2018.

In that background, the petitioners are not entitled to get back

custody of the child.

14. Mr. K. N. Lokhande, the learned AGP for respondent

Nos. 3 to 5 submitted that the CWC Jalna had handed over

interim custody of the child by passing foster care order

without conducting proper home study of foster family, social

investigation and individual care plan of the said child. The

CWC has passed the foster care order on the basis of social

investigation report submitted by the Special Adoption Agency

which is also incomplete. He submitted that the CWC Jalna and

Specialized Adoption Agency have given complete go by to the

mandatory provisions of the JJ Act, 2015 and Rules, 2018 while

giving interim custody of the child to the petitioners on the basis

of foster care order. He submitted that the child is now admitted

with respondent No.7, Institution of Specialized Adoption

Agency and the said Agency is taking good care of the child.

The petitioners have registered their names on the portal CARA

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and they have to wait as per their turn. They have no right to

select a particular child for adoption. Mr. Lokhande, the learned

AGP submitted that the petitioners are not entitled to get back

custody of the child in the best interest of the child.

15. We have considered the arguments advanced by the

learned Advocates for respective sides, A.S.G. and A.G.P.

16. The Juvenile Justice (Care and Protection of Children)

Act, 2015 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.

17. The above referred Act, Rules and Regulations governed

the field of adoption in India. Adoption is a process other than

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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. The JJ Act introduced expression "child in need of

care and protection."

18. 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 the 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

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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 Report) 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.''

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19. Now coming back to the factual scenario of the case in

hand. It appears from the affidavit sworn by the District

Women and Child Development Officer, Jalna that one Shri Dilip

Ramesh Rathod R/o Pathrud Dist. Jalna happened to be the

father of the child Dhanashri @ Reeya. He has moved an

application for surrender of child before the CWC, Jalna due to

death of the child's mother. He has executed surrender deed on

19.10.2019. The child is given by way of interim custody on

02.01.2020 by the CWC Jalna by passing foster care order

dated 02.01.2020. The custody was for a period of three

months as per the foster care agreement.

20. It is further evident from the record that child

Dhanashri @ Reeya was not produced before the CWC, Jalna

after the period of three months of foster care agreement

inspite of communication issued by the CWC Jalna. The CWC

Jalna has issued impugned communication asking the

petitioners to produce the child, however the petitioners did

not produce the child by assigning reason of illness of child and

Covid-19 Pandemic. Be that as it may, at present, the child is

admitted in the institution of respondent No.7, a Specialized

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Adoption Agency under the orders of the Child Welfare

Committee, Aurangabad dated 06.11.2020.

21. In the above factual scenario, we have to consider

whether custody of child can be given back to the petitioners

only because the petitioners had taken good care of the child

during foster care period and looked after her health by

providing proper medical treatment at Hyderabad.

22. Section 35 of the JJ 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 satisfies, then

only parents shall execute a surrender deed. Before giving a

child in foster care, the CWC ought to have conducted proper

enquiry in respect of parents of the child who intend to

surrender the child before the CWC.

23. As per Rule 25(11) of the M.S. JJ Rules, 2018, it is

necessary to obtain home study report of foster family, social

investigation report and individual care plan of the said child

before giving custody of the child to the prospective adoptive

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parents under foster care agreement. The best interest of the

child needs to be protected through out the process of

adoption. It is noticed by us that in the present case, no home

study report of foster family is placed on record. No social

investigation report and individual care plan of the child are

placed on record. The CWC, Jalna has simply obtained social

investigation report on 19.10.2019 that too from the Special

Adoption Agency, which is also incomplete and on that basis, the

CWC Jalna seems to have passed order of foster care dated

02.01.2020. It is a clear-cut violation of Rule 19(22) of the

Rules, 2018. Rule 25 (22) provides that enquiry under sub-

section 3 of Section 35 of of the Act shall be conducted by the

Committee expeditiously and the committee shall declare the

surrendered child as legally free for adoption after the expiry of

two months from the date of surrender.

24. Further it is evident that there are no medical reports as

contemplated under section 52 of the JJ Act, 2015. Section 52

of the JJ Act, 2015 provides that the Committee shall, after due

verification of credentials, recognize any person fit to

temporarily receive a child for care, protection and treatment of

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such child for a specified period. There is no medical report to

certify that child is fit to be in foster care. There is no home

study report to assess the suitability of the petitioners as foster

parent as contemplated under the JJ Act, 2015 and the Rules,

2018. In the present case, the CWC Jalna seems to have

passed foster care order in breach of statutory procedure

discussed above.

25. As per Regulation 7(10) of Adoption Regulation, 2017, it

is mandatory on the part of CWC to make every attempt of

counselling of the parents who intend to surrender the child.

No such exercise seems to have been made by the CWC Jalna.

Further, it is noticed by us that CWC Jalna has violated section

35 (3) of the JJ Act, 2015. Section 35(3) of the Act provides

that a parents or guardian, who surrendered the child, shall

be given two months time to reconsider their decision and in the

intervening period, the Committee shall either allow, after due

enquiry, the child to be with the parents or guardian under the

supervision, or place the child in a Specialized Adoption Agency,

if he or she is below six years of age, or a children's home if

child is above six years. There is no document on record to

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show that the CWC Jalna has made any attempt for counselling

with the parents of the child before exercise of surrender.

26. According to Rule 25 read with Rule 46 of Rules 2018 the

CWC shall take decision related to placement of a child for foster

care when child is in the age group of 0 to 6 years and that

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 the case at hand, the CWC Jalna

has given custody of the child by passing foster care order

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

further noticed by us that age of petitioner No.1 is 36 years and

age of Petitioner No.2 is 32 years. They are stated to be

prospective adoptive parents. As per Rule 25 (13) of the Rules

2018, the age of foster parents should be above 35 years of

age. In the case at hand, age of petitioner No.2 is 32 years,

which is hurdle in the way of the petitioners to complete the

adoption procedure as per the JJ Act, 2015 and the Rules, 2018.

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27. We have considered the citations relied upon by Mr.

Dharurkar, the learned counsel for the petitioners.

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. 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 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

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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.

vi) The Case of Sangram Singh Vs. Election Tribunal,

Kotah and another, reported in AIR 1955 SC 425 is on the point

of invoking of powers under Article 226 by the High Court. In

para 14 and 16 of the judgment, it is observed as under:

(14) That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these

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special rights decided as speedily a may be. Therefore, writ petitions should not be lightly entertained in this class of case.

(16) Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to tip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against ( provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it."

28. The facts of the case at hand are very much disturbing.

The CWC, Jalna and the Specialized Adoption Agency, Jalna have

committed breach of mandatory provisions of the JJ Act, 2015

and the Rules, 2018 before accepting surrender of the child and

giving interim custody of child by way of foster care order.

The JJ Act, 2015 is a complete code itself which governs the

field. When statute requires that a particular thing has to be

done in a particular way, it must be done in that way only. In

the case at hand, the Specialized Adoption Agency and the

CWC Jalna have flouted the mandatory provisions of the JJ Act,

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2015 and the Rules, 2018 as noticed above by us. Certainly, it

is difficult to take sympathetic view in the above background.

29. We understand the feelings and emotions of the

petitioners. We also understand, the petitioners may have

developed attachment with the child Dhanashari @ Reeya. At

the same time, we cannot overlook mandatory provisions of the

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

child before giving a child in adoption.

30. Mr. Dharurkar, the learned counsel for the petitioners

placed reliance on the decision in case of State of Punjab and

another Vs. Shyamlal Murari and another reported in AIR 1976

SC 1177 and submitted that Courts are to do justice, not to

wreck this end product on technicalities. Procedural laws are

handmade and should not be hurdle in the administration of

justice.

31. We are not impressed by the argument advanced by

Mr. Dharurkar. We have to protect the best interest of the

child through out the process of adoption. Unfortunately, in the

case at hand, best interest of the child seems to have not been

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protected to give purposeful interpretation to the definition of

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

JJ Act, 2015.

32. 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 of Marwadi Charitable Trust,

Jalna regarding illegalities committed in the process of adoption.

33. In the above background, the entire process of giving

interim custody of child on execution of foster care agreement in

this case is in breach of mandatory provisions of the JJ Act 2015

and Rules 2018.

34. 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 female child as being paramount

consideration.

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35. 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, J.) (S. V. GANGAPURWALA, J.)

JPC