Telangana High Court
Puli Uppalaiah vs The State Of Telangana on 23 September, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION Nos.22020, 19623, 21108, 21980,
21981, 17040, 22026, 22429 AND 23727 OF 2024
COMMON ORDER:
W.P.No.22020 OF 2024
Heard Sri T.Surya Satish, learned counsel
appearing on behalf of the petitioners,
Smt. K.Mani Deepika, learned Government Pleader for
Women Development and Child Welfare appearing on
behalf of respondent Nos.1 to 5, learned Assistant
Government Pleader for Revenue appearing on behalf
of respondent No.6 and learned Assistant Government
Pleader for Home appearing on behalf of respondent
Nos. 7 & 8.
2. The petitioners approached the Court seeking
prayer as under:
"....to issue a writ order or direction more particularly
one in the nature of writ of mandamus declaring the
action of the Respondents 7 and 8 in forcefully and
illegally taking custody of the minor child
D. Maanvika from the Petitioners and handing over
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the child to the 2nd and 3rd Respondents on the basis
of FIR. No. 579 of 2024 dated 22.05.2024 and the
allegations made therein as illegal arbitrary violative
of the principles of natural justice violative of Articles
14, 20(1) of the Constitution of India and to pass..."
3. The case of the petitioners in W.P.No.22020 of
2024 as per the averments made by the petitioners in
the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named D. Maanvika. The
petitioners herein were unable to have biological children and
thus they decided to adopt a baby. Thereafter, the petitioners
were informed through a common friend of the petitioners
that there is a '9' days old baby girl put up for adoption by
their biological parents as the biological parents were not in a
position to raise the child. Therefore, as per the Hindu rites
and customs and with the consent of the biological parents
the petitioners herein had adopted the baby on 30.03.2024
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b) While things stood thus, on 22.05.2024 the 8th
respondent had contacted the petitioners and informed them
to report to the Medipally Police Station in relation to the FIR
No. 579 of 2024 dated 22.05.2024 along with the child
D. Maanvika. Later, the 8th respondent forcefully took the
child from the petitioners' custody stating that the petitioners
had brought the minor child illegally. Thereafter, the child was
kept under the custody of respondent Nos. 2 and 3. Aggrieved
by the said action of respondent nos. 7 and 8, the present
Writ Petition is filed.
W.P.No.21980 OF 2024
4. Heard Sri T.Surya Satish, learned counsel
appearing on behalf of the petitioner,
Smt.K.Mani Deepika, learned Government Pleader for
Women Development and Child Welfare appearing on
behalf of respondent Nos.1 to 5, learned Assistant
Government Pleader for Revenue appearing on behalf
of respondent No.6 and learned Assistant Government
Pleader for Home appearing on behalf of respondent
Nos. 7 & 8.
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WP_22020 of 2024 & batch
5. The petitioner approached the Court seeking
prayer as under:
"....to issue a writ order or direction more particularly
one in the nature of writ of mandamus declaring the
action of the Respondents 7 and 8 in forcefully and
illegally taking custody of the minor child Kandala
Uma Maheshwari from the Petitioner and handing
over the child to the 2nd and 3rd Respondents on
the basis of FIR.No. 579 of 2024 dated 22. 05. 2024
and the allegations made therein as illegal arbitrary
violative of the principles of natural justice violative
of Articles 14, 20(1) of the Constitution of India and
to pass..."
6. The case of the petitioner in W.P.No.21980 of
2024 as per the averments made by the petitioner in
the affidavit filed by the petitioner in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named K. Uma
Maheshwari. The petitioners herein were unable to have
biological children and thus they decided to adopt a baby.
Thereafter, the petitioners were informed through a common
friend of the petitioners that there is a '2' days old baby girl
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put up for adoption by their biological parents as the biological
parents were not in a position to raise the child. Therefore, as
per the Hindu rites and customs and with the consent of the
biological parents the petitioners herein had adopted the baby
on 15.11.2021.
b) While things stood thus, on 22.05.2024 the 8th respondent
had contacted the petitioners and informed them to report to
the Medipally Police Station in relation to the FIR No. 579 of
2024 dated 22.05.2024 along with the child K. Uma
Maheshwari. Later, the 8th respondent forcefully took the child
from the petitioners' custody stating that the petitioners had
brought the minor child illegally. Thereafter, the child was
kept under the custody of respondent Nos. 2 and 3. Aggrieved
by the said action of respondent nos. 7 and 8, the present
Writ Petition is filed.
W.P.No.21981 OF 2024
7. Heard Sri T.Surya Satish, learned counsel
appearing on behalf of the petitioners,
Smt.K.Mani Deepika, learned Government Pleader for
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Women Development and Child Welfare appearing on
behalf of respondent Nos.1 to 5, learned Assistant
Government Pleader for Revenue appearing on behalf
of respondent No.6 and learned Assistant Government
Pleader for Home appearing on behalf of respondent
Nos. 7 & 8.
8. The petitioners approached the Court seeking
prayer as under:
"....to issue a writ order or direction more particularly
one in the nature of writ of mandamus declaring the
action of the Respondents 7 and 8 in forcefully and
illegally taking custody of the minor child S. Rishika
from the Petitioners and handing over the child to
the 2nd and 3rd Respondents on the basis of FIR No
579 of 2024 dated 22. 05. 2024 and the allegations
made therein as illegal arbitrary violative of the
principles of natural justice violative of Articles 14
20(1) of the Constitution of India and to pass such
other orders as are deemed fit and proper in the
interest of justice equity and good conscience..."
9. The case of the petitioners in W.P.No.21981 of
2024 as per the averments made by the petitioners in
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the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named S. Rishika. The
petitioners herein were unable to have biological children and
thus they decided to adopt a baby. Thereafter, the petitioners
were informed through a common friend of the petitioners
that there is a '20' days old baby girl put up for adoption by
their biological parents as the biological parents were not in a
position to raise the child. Therefore, as per the Hindu rites
and customs and with the consent of the biological parents
the petitioners herein had adopted the baby on 26.01.2024
b) While things stood thus, on 22.05.2024 the 8th respondent
had contacted the petitioners and informed them to report to
the MedipallyPolice Station in relation to the FIR No. 579 of
2024 dated 22.05.2024 along with the child S.Rishika. Later,
the 8th respondent forcefully took the child from the
petitioners' custody stating that the petitioners had brought
the minor child illegally. Thereafter, the child was kept under
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the custody of respondent Nos. 2 and 3. Aggrieved by the
said action of respondent nos. 7 and 8, the present Writ
Petition is filed.
W.P.No.22026 OF 2024
10. Heard Sri T.Surya Satish, learned counsel
appearing on behalf of the petitioners, Smt.K.Mani
Deepika, learned Government Pleader for Women
Development and Child Welfare appearing on behalf of
respondent Nos.1 to 5, learned Assistant Government
Pleader for Revenue appearing on behalf of respondent
No.6 and learned Assistant Government Pleader for
Home appearing on behalf of respondent Nos. 7 & 8.
11. The petitioners approached the Court seeking
prayer as under:
"....to issue a writ order or direction more particularly
one in the nature of writ of mandamus declaring the
action of the Respondents 7 and 8 in forcefully and
illegally taking custody of the minor child B. Sresta
from the Petitioners and handing over the child to
the 2nd and 3rd Respondents on the basis of FIR. No.
579 of 2024, dated 22. 05. 2024 and the allegations
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made therein as illegal arbitrary violative of the
principles of natural justice violative of Articles 14,
20(1) of the Constitution of India and to pass..."
12. The case of the petitioners in W.P.No.22026 of
2024 as per the averments made by the petitioners in
the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named B. Sresta. The
petitioners herein were unable to have biological children and
thus they decided to adopt a baby. Thereafter, the petitioners
were informed through a common friend of the petitioners
that there is a 2 days old baby girl put up for adoption by
their biological parents as the biological parents were not in a
position to raise the child. Therefore, as per the Hindu rites
and customs and with the consent of the biological parents
the petitioners herein had adopted the baby on 22.01.2024
b) While things stood thus, on 22.05.2024 the 8th
respondent had contacted the petitioners and informed them
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to report to the Medipally Police Station in relation to the FIR
No. 579 of 2024 dated 22.05.2024 along with the child B.
Sresta. Later, the 8th respondent forcefully took the child from
the petitioners' custody stating that the petitioners had
brought the minor child illegally. Thereafter, the child was
kept under the custody of respondent Nos. 2 and 3. Aggrieved
by the said action of respondent nos. 7 and 8, the present
Writ Petition is filed.
W.P.No.22429 OF 2024
13. Heard Sri T.Surya Satish, learned counsel
appearing on behalf of the petitioners,
Smt.K.Mani Deepika, learned Government Pleader for
Women Development and Child Welfare appearing on
behalf of respondent Nos.1 to 5, learned Assistant
Government Pleader for Revenue appearing on behalf
of respondent No.6 and learned Assistant Government
Pleader for Home appearing on behalf of respondent
Nos. 7 & 8.
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WP_22020 of 2024 & batch
14. The petitioners approached the Court seeking
prayer as under:
"....to issue a writ order or direction more particularly
one in the nature of writ of mandamus declaring the
action of the Respondents 7 and 8 in forcefully and
illegally taking custody of the minor child K. Jhanavi
Sahasra from the Petitioners and handing over the
child to the 2nd and 3rd Respondents on the basis of
FIR. No. 579 of 2024 dated 22/05/2024 and the
allegations made therein as illegal arbitrary violative
of the principles of natural justice violative of Articles
14, 20(1) of the Constitution of India and to pass..."
15. The case of the petitioners in W.P.No.22429 of
2024 as per the averments made by the petitioners in
the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named K.Jhanavi
Sahasra. The petitioners herein were unable to have biological
children and thus they decided to adopt a baby. Thereafter,
the petitioners were informed through a common friend of the
petitioners that there is a '20' days old baby girl put up for
adoption by their biological parents as the biological parents
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were not in a position to raise the child. Therefore, as per the
Hindu rites and customs and with the consent of the biological
parents the petitioners herein had adopted the baby on
20.05.2024
b) While things stood thus, on 22.05.2024 the 8th
respondent had contacted the petitioners and informed them
to report to the Medipally Police Station in relation to the FIR
No. 579 of 2024 dated 22.05.2024 along with the child
K. Jhanavi Sahasra. Later, the 8th respondent forcefully took
the child from the petitioners' custody stating that the
petitioners had brought the minor child illegally. Thereafter,
the child was kept under the custody of respondent Nos. 2
and 3. Aggrieved by the said action of respondent nos. 7 and
8, the present Writ Petition is filed.
W.P.No.17040 OF 2024
16. Heard Sri Veera Babu Gandu, learned counsel
appearing on behalf of the petitioners, Smt.K.Mani
Deepika, learned Government Pleader for Women
Development and Child Welfare appearing on behalf of
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respondent Nos.1 to 3, learned Assistant Government
Pleader for Revenue appearing on behalf of respondent
No.4, learned Assistant Government Pleader for Home
appearing on behalf of respondent Nos. 5 & 6 and Sri
Mohammad Abdul Mateen Qureshi, learned counsel
representing Sri Gadi Praveen Kumar, learned Deputy
Solicitor General of India appearing on behalf of
respondent No.7 on record.
17. The petitioners approached the Court seeking
prayer as under:
"....to issue writ order or direction more particularly
one in the nature of Writ of Mandamus declaring the
action of the respondent No. 5 and 6 in taking
forcibly custody of the child and handover to
respondent No 2and3 as being illegal contrary to law
arbitrary violative of Article 20 of the Constitution of
India set aside the same and restore custody of the
child G. PARNIKA REDDY and consequently direct the
respondents No 2 to 3 to handover to adoptive child
the petitioners herein in the interest of justice and
pass..."
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18. The case of the petitioners in W.P.No.17040 of
2024 as per the averments made by the petitioners in
the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named G. Pranika
Reddy. The petitioners herein were unable to have biological
children and thus they decided to adopt a baby. Since the
petitioners were unable to have biological children, they used
to perform poojas at Yellamma Temple, Secunderabad and
during these poojas, the petitioners herein got acquainted
with one of the priests named Satyanarayana. Subsequently,
the said priest informed the petitioners that there is one
unmarried Woman named Anusha who gave birth to a baby
girl and she was willing to give that baby girl for adoption.
Subsequently, the petitioners decided to adopt the baby and
as per the Hindu rites and customs and with the consent of
the biological parent, the petitioners herein had adopted the
baby on 07.08.2022.
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b) While things stood thus, the 6th respondent had forcibly
taken the petitioners' child (G. Pranika Reddy) from the
custody of the petitioners and kept her under the custody of
respondents 2 and 3 on the basis of FIR in Cr.No. 579/2024.
Thereafter, the petitioners had requested the respondents to
hand over the custody of the child since their process is
pending before the 7th respondent. However, the same was
denied by the respondents. Therefore, aggrieved by the action
of the respondent Nos. 5 to 6, the present Writ Petition is
filed.
W.P.No.23727 OF 2024
19. Heard Sri Veera Babu Gandu, learned counsel
appearing on behalf of the petitioners,
Smt. K.Mani Deepika, learned Government Pleader for
Women Development and Child Welfare appearing on
behalf of respondent Nos.1 to 3, learned Assistant
Government Pleader for Revenue appearing on behalf
of respondent No.4, learned Assistant Government
Pleader for Home appearing on behalf of respondent
Nos. 5 & 6 and Sri Mohammad Abdul Mateen Qureshi,
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learned counsel representing Sri Gadi Praveen Kumar,
learned Deputy Solicitor General of India appearing on
behalf of respondent No.7 on record.
20. The petitioners approached the Court seeking
prayer as under:
"....to issue writ order or direction more particularly
one in the nature of Writ of Mandamus declaring the
action of the respondent No. 5 and 6 in taking
forcibly custody of the child and handover to
respondent No 2 and 3 as being illegal contrary to
law arbitrary violative of Article 20 of the
Constitution of India set aside the same and restore
custody of the child G PARNIKA REDDY and
consequently direct the respondents No 2 to 3 to
handover to adoptive child the petitioners herein in
the interest of justice and pass..."
21. The case of the petitioners in W.P.No.23727 of
2024 as per the averments made by the petitioners in
the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named Puli Bargav Ram.
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The petitioners herein were unable to have biological children
and thus they decided to adopt a baby. The 1st petitioner
herein is a toddy topper and one such customer of the 1st
petitioner had informed him that that there is one unmarried
college student who gave birth to a baby boy on 26.07.2022
and she was willing to give that baby boy for adoption.
Subsequently, the petitioners decided to adopt the baby and
went to Abdullapurmet to meet the biological mother and
thereafter had taken the baby for adoption with the consent
of the biological mother.
b) While things stood thus, the 6th respondent had forcibly
taken the petitioners' child (Puli Bargav Ram) from the
custody of the petitioners and kept him under the custody of
respondents 2 and 3 on the basis of FIR in Cr.No. 579/2024.
Thereafter, the petitioners had requested the respondents to
hand over the custody of the child since their process is
pending before the 7th respondent. However, the same was
denied by the respondents. Therefore, aggrieved by the action
of the respondent Nos. 5 to 6, the present Writ Petition is
filed.
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W.P.No.19623 OF 2024
22. Heard Sri C.Ruthwik Reddy, learned counsel
appearing on behalf of the petitioners, Smt. K. Mani
Deepika, learned Government Pleader for Women
Development and Child Welfare appearing on behalf of
respondent Nos.1 to 4, , learned Assistant Government
Pleader for Home appearing on behalf of respondent
Nos. 5 & 6, learned Assistant Government Pleader for
Revenue appearing on behalf of respondent No.7 and
Sri Mohammad Abdul Mateen Qureshi, learned counsel
representing Sri Gadi Praveen Kumar, learned Deputy
Solicitor General of India appearing on behalf of
respondent No.8 on record.
23 The petitioners approached the Court seeking
prayer as under:
"....to issue a writ or order or direction more
particularly a Writ of Mandamus declaring the action
of the respondents Nos. 2 to 6 in not handing over
the child namely Master Adavi Naga Venkata Dhruva
who was forcibly taken into their custody on
28/05/2024 to the petitioners as bad arbitrary illegal
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contrary to law and unconstitutional and
consequently direct the respondents to handover the
child Master Adavi Naga Venkata Dhruva to the
petitioners forthwith and pass..."
24. The case of the petitioners in W.P.No.19623 of
2024 as per the averments made by the petitioners in
the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of a minor child named Naga Venkata
Dhruva. The petitioners herein were unable to have biological
children and thus they decided to adopt a baby, as such the
petitioners had approached the Child Welfare Department to
adopt a child, but on enquiry the petitioners got to know that
there is a lengthy procedure and it will take seVeeral years to
get a child for adoption. Thus, the petitioners had started
searching for a child for adoption through private channels
and also expressed their intention of adoption of a child to
their family doctor Dr. Shobha Rani. Subsequently, Dr.
Shobha Rani informed the petitioners that there is a new born
baby boy available for adoption and that there was an
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unknown or unclaimed biological parent who gave birth to the
boy and the baby was an illegitimate child. Subsequently, on
27.08.2024, the petitioners went to the clinic of Dr. Shobha
Rani and adopted the baby boy and named him Naga Venkata
Dhruva.
b) While things stood thus, on 28.05.2024, Respondent No. 6
had contacted the petitioners informing them to report to the
Medipally -PS along with the adopted child Naga Venkata
Dhruva. Upon reporting at the police station, the respondent
no. 5 and 6 had forcefully took the child from the petitioners'
custody and handed him over to respondent No.3 and 4.
Moreover, the respondents had not traced out the biological
parents of Naga Venkata Dhruva and there are no claims as
such. Therefore, aggrieved by the action of the respondent
Nos. 2 to 6, the present Writ Petition is filed.
W.P.No.21108 OF 2024
25. Heard Smt. C.Rakee Sridharan, learned counsel
appearing on behalf of the petitioners, Smt. K. Mani
Deepika, learned Government Pleader for Women
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Development and Child Welfare appearing on behalf of
respondent Nos.1 to 3, learned Assistant Government
Pleader for Home appearing on behalf of respondent
No. 4 and Sri Mohammad Abdul Mateen Qureshi,
learned counsel representing Sri Gadi Praveen Kumar,
learned Deputy Solicitor General of India appearing on
behalf of respondent No.8 on record.
26. The petitioners approached the Court seeking
prayer as under:
"....to issue a writ order or direction more particularly
one in the nature of a writ of Mandamus declaring
the action of the respondent Nos. 3 and 4 taking
forcible custody of the child as being illegal contrary
to law arbitrary violative of Article 20 of the
constitution of India set aside the same and restore
custody of the child Perugu Bavya shree the
biological child of Respondent nos. 5 and 6 and the
adoptive child of the petitioners herein in the interest
of justice and pass..."
27. The case of the petitioners in W.P.No.21108 of
2024 as per the averments made by the petitioners in
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the affidavit filed by the petitioners in support of the
present Writ Petition is as under:-
a) It is the case of the petitioners that, the petitioners are
the adoptive parents of three (03) year old girl child named
Perugu Bhavya Sri. The petitioners herein were unable to
have biological children and thus they decided to adopt a
baby. Thereafter, the petitioners were informed through a
reliable source that a one-week old baby with a partial
physical disability was up for adoption as the biological
parents were not financially sound and interested to raise the
said child. Thus, the petitioners have adopted the said baby
girl Perugu Bhavya Sri from her biological parents (i.e. the
respondent Nos. 5 and 6) on 16.08.2022 through at
Vasundara Hospital Kothapet, Vijayawada through Adoption
deed dated 16.08.2022.Thus, under the premises of
Vasundara Hospital, Kothapet, Vijayawada, the Biological
parents/ Respondent No.5 and 6 handed over the child to the
petitioners after giving 1,50,000/- to One Anuradha, who is
said to be a nurse of the above-mentioned hospital premises.
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b) While things stood thus, on 28.05. 2024, Respondent
No. 4 had contacted the 1st petitioner and informed him to
report to the Medipally -PS along with the adopted child
Bhavya Sri. Later, the 4th respondent informed the petitioner
that the execution of the adoption was not valid, and
forcefully took the child from the petitioner's custody.
Thereafter, from 29.05.2024, the child has been kept under
the custody of respondent No.3 and since the child was in the
custody, the petitioners had approached Respondent No.3 to
visit the child but they denied the petitioners' request.
c) Further the petitioners made a representation dated
07.06.2024 for validation or the adoption proceedings but the
Respondent No.3 had directed to execute adoption
proceedings through Online website Cara. Com for valid
Adoption and also informed that the petitioners cannot adopt
the same child. Aggrieved by the said action of respondent
nos. 3 and 4, the present Writ Petition is filed.
PERUSED THE RECORD:
DISCUSSION AND CONCLUSION:-
DISCUSSION:-
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28. Counter has been filed in W.P.No. 2181 of 2024 on
behalf of respondent Nos. 1 to 6, relevant para Nos. 4,
5, 6 and 8 are extracted hereunder:-
4. In reply to para No.3 of the Writ Petitioners' affidavit,
the petitioner was aware of the CARA portal and the
Child Welfare Department's process for adopting a child.
Despite this knowledge, the petitioner chose to
pursue the adoption through private channels,
resulting in the procurement of the child from
Dr.Shobha Rani (Accused in Crime No.59/2024).
The petitioner never approached the respondent
No.2 in the Writ Petition. This action constitutes a
violation of Section 81 & 87 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 by the
petitioner.
"Sec 81, Sale and procurement of children for any
purpose:
Any person who sells or buys a child for any purpose
shall be punishable with rigorous imprisonment for a
term which may extend to five years and shall also be
liable to fine of one lakh rupees. Provided that where
such offence is committed by a person having actual
charge of the child, including employees of a hospital or
nursing home or maternity home, the term of
imprisonment shall not be less than three years and
may extend up to seven years."
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"Sec 87, Abetment:
Whoever abets any offence under this act, if the act
abetted is Whoever abets any offence under this Act, if
the act abetted is committed in consequence of the
abetment, shall be punished with the punishment
provided for that offence.
Explanation: An act or offence is said to be committed
in consequence of abetment, when it is committed in
consequence of the instigation, or in pursuance of the
conspiracy or with the aid, which constitutes the
abetment.
5. In reply to Para No. 4 of the Writ Petitioners'
affidavit, it is observed that the child falls under
the "Abandoned" category of "Child in need of
care and protection". CNCP category as per Sec
2(14) (vi) "Who does not have parents and no one
is willing to take care of and protect or who is
abandoned or surrendered". Despite the Biological
parents' whereabouts being untraceable since the child
birth mentioned in Writ Petition and the minor child
Rishika hasn't been registered in CARA portal
(CARINGS) under schedule I & II. The criteria for
adoption of a child under rule 4 of Adoption
Regulations, 2017 explain as "The following shall
be eligible for adoption, namely:
(a) any orphan or abandoned or surrendered
child, declared legally free for adoption by the
Child Welfare Committee.
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(b) a child of a relative defined under clause (52)
of section 2;
(c) child or children of spouse from earlier
marriage, surrendered by the biological parents
for adoption by the step-parent.
Due to the reasons mentioned above, the Child
Rishika is ineligible for the adoption process
because the Child Rishika hasn't been declared
Legally free for adoption by Child Welfare
Committee nor registered in CARINGS (Child
Adoption Resource Information and Guidance
System) the required procedures have not been
followed. Moreover Petitioner's adherence to Adoption
Rituals and Procedures is denied and they are put to
strict proof thereof.
6. In reply to Para No 5 and 6 of the Writ Petitioners'
affidavit, the documents obtained in regard to the
child Rishika by the Writ Petitioner are considered
bogus/invalid unless a registered deed was executed
by both the biological parents and the adoptive parents.
As per Sec 16 of Hindu Adoption and Maintenance
Act 1956 states that
"Presumption as to registered documents relating
to adoption. Whenever any document registered
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under any law for the time being in force is
produced before any court purporting to record an
adoption made and is signed by the person giving
and the person taking the child in adoption, the
court shall presume that the adoption has been
made in compliance with the provisions of this Act
unless and until it is disproved."
8. In reply para No. 9 of the Writ Petitioners' affidavit,
it is noted that although the petitioner began taking
care of the child, they are ineligible for the adoption
process because they failed to register on the
CARA portal as per "Rule 5 of Adoption
Regulations 2017:-
Eligibility criteria for prospective adoptive
parents:
(1) The prospective adoptive parents shall be
physically, mentally, emotionally and financially
capable, they shall not have any life threatening
medical condition and they should not have been
convicted in criminal act of any nature or accused
in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective
of their marital status and whether or not they
have biological son or daughter, can adopt a child
subject to the following, namely:
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(a) The consent of both the spouses for the
adoption shall be required, in case of a married
couple;
(b) a single female can adopt a child of any
gender:
(c) A single male shall not be eligible to adopt a
girl child.
(3) No child shall be given in adoption to a couple
unless they have at least two years of stable
marital relationship except in the cases of relative
or step-parent adoption.
(4) The age of prospective adoptive parents, as on
the date of registration, shall be counted for
deciding the eligibility of prospective adoptive
parents for children of different age groups as
under:
Age of Child Maximum Maximum age of
composite age of single
prospective prospective
adoptive parents adoptive parent
(couple)
Up to 2 years 85 years 40 years
Above 2 and up to 90 years 45 years
4 years
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Above 4 and up to 100years 50 years
8 years
Above 8 and up to 110 years 55 years
18 years
Provided that the minimum age difference
between the child and either of the prospective
adoptive parents shall not be less than twenty-
five years.
(5) In case of a couple, the composite age of the
prospective adoptive parents shall be counted.
(6) The age criteria for prospective adoptive
parents shall not be applicable in case of relative
adoptions and adoption by step-parent.
(7) Couples with two or more children shall only
be considered for special needs children as
specified in clause (25) of regulation 2, and hard
to place children as stated in clause (13) of
regulation 2 unless they are relatives or step-
children.
(8) The prospective adoptive parents have to
revalidate their Home stu report after a period of
three years.
(9) The seniority of the prospective adoptive
parents who have not received a single referral
within three years shall be counted from their
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date of registration except those who have
crossed composite years of one hundred ten
years.
Identical pleas have been put-forth by the
respondents in all the counter affidavits as
extracted above in the batch of present '9' Writ
Petitions.
29. The pleas put-forth in the counter affidavit filed on
behalf of the respondent Nos. 1 to 6 i.e., The State of
Telangana, represented by its Principal Secretary,
Women Development and Child Welfare Department
Secretariat/ respondent No.1, The child Welfare Project
Director/respondent No.2, The Integrated Child
Protection Services (ICPS)/respondent No.3, The
Central Adoption Resource Agency/respondent No.4,
Child Welfare Committee/ respondent No.5 and The
District Collector, Medchal-Malkajgiri
District/respondent No.6 in all present batch of '9' writ
petitions are as follows:-
i) The Children are not forcibly taken away from the writ
petitioners, the petitioners had chosen to pursue the adoption
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through private channels and did not follow the procedure of
CARA portal and Child Welfare Committees process for
adopting a child.
ii) The petitioners failed to approach the 2nd respondent.
iii) The action of the petitioners in adopting the children
constitutes violation of Section 81 and 87 of the Juvenile
Justice (Care and Protection of Children )Act, 2015.
iv) There is no registered deed executed by both the
biological parents and adoptive parents.
v) The children fall under the "Abandoned" category of
children " in need of care and protection".
vi) The children have not been legally free for adoption by
respective Child Welfare committees.
vii) The children are not registered in Children Adoption
Resources Information and Guidance System.
viii) The children are ineligible for the adoption process since
they failed to register on the CARA portals as per Rule 5 of
Adoptions Regulations, 2017.
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ix) The case under Section 81, 87 and 88 of Juvenile Justice
(Care and Protection of Children )Act, 2015 had been
registered against few of the petitioners.
x) The adoption involved monetary transactions and
purchase of children which is in clear violation of Section's
16, 9(1) (4) and (5) of the Hindu Adoptions and
Maintenance Act, 1956.
30. The learned Government Pleader for Women
Development and Child Welfare appearing on behalf of
the respondent Nos. 1 to 6 in all the present batch of '9'
Writ Petitions placing reliance on the averments made
in the counter affidavits filed thereunder and on the
basis of the submissions extracted above contend that
all the Writ Petitioners in the batch of Writ Petitions are
not entitled for the relief as prayed for thereunder.
31. The learned Assistant Government Pleader for
Home appearing on behalf of the respondent Nos. 5 & 6
placing reliance on the counter filed by the SHO,
Medipally P.S., Rachakonda Commissionerate in
W.P.No. 19623 of 2024 contends that the identical
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pleas as put-forth in the said counter affidavit apply in
all the present Writ Petitions in so far as the said
respondent is concerned in the present batch of Writ
Petitions and the main pleas put-forth are as under:-
i) A complaint had been lodged with the 6th respondent in
W.P.No. 19623 of 2024 on 22.05.2024 stating that one
Dr. Shobha Rani and other have sold the child to needy
people by receiving amounts and in pursuance to the said
complaint Cr.No.579 of 2024 had been registered under
Sections 370, 372, 373 read with 34 IPC and Sections 81, 87
and 88 of the Juvenile Justice (Care and protection of
Children ) Act, 2015 against the said Dr. Shobha Rani.
ii) The investigation is under process after examination of
some more witnesses accused would be arrested.
iii) The 6th respondent called the petitioners for the purpose of
investigation, only the child was handed over to the Child
Welfare Committee, Medchal-Malkajgiri District vide letter
No.579/Cr/MK-4/RKD/2024, dated 29.05.2024 of the 6th
respondent.
iv) Unless investigation is finalized the petitioners cannot
have the custody of the baby boy.
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v) The petitioner No.2 in W.P.No.19623 of 2024 confessed
that he purchased baby boy/Master Adavi Naga Venkata
Dhruva and paid Rs. 4 lakhs to the accused No.1 and the said
baby boy was rescued from the petitioners and handed over
to the Child Welfare Committee, Medchal, Malkajgiri District
vide letter No.579/Cr/MK-4/RKD/2024, dated 29.05.2024 of
the 6th respondent.
Based on the aforesaid submissions, learned
Assistant Government Pleader appearing on behalf of
the respondent Nos. 5 & 6 contends that all the Writ
Petitions need to be dismissed.
32. The averments made in the counter affidavit filed
by the CARA/respondent No.7 along with the State of
Telangana Represented by its Principal Secretary
Department of Women and Child Welfare Secretariat
Hyderabad/respondent No.1, The Child Welfare
Committee/respondent No.2, Directorate of Women
Development and Child Welfare
Department/respondent No.3 in W.P.No. 21108 of 2024
in brief are as under:-
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i) The biological parents of child Bhavya Shree are
non-hindus as names are mentioned as Nazma Mohammed
Aneef,
ii) The adoption of the said child was in violation of the
Sections 81 and 87 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 by the petitioners in
W.P.No. 21108 of 2024, since the natural parents respondent
Nos.5 and 6 there under offered their child for adoption and
that the petitioners paid an amount of Rs. 1,50,000/- to one
Anuradha, who is said to be a Nurse at Vasundara Hospital,
Kothapet, Vijayawada and the petitioners had purchased
the said infant from the Nurse Anuradha who is accused
No.10 in Cr.No.579 of 2024.
iii) The child i.e., Bhavya Shree is a abandoned child and
comes under the category of child "in need of care and
protection" and the said child is ineligible for adoption
process since she has not been declared legally free for
adoption by the Child Welfare Committee, nor the child is
registered under Child Adoption Resources Information and
Guidance System.
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iv) The required procedure of adoption had not been followed.
v) The documents obtained by the writ petitioners are invalid
as the adoption deed is void.
vi) Rule 4 and 5 of the Adoptions Regulations, 2017 had
not been followed.
vii) The respondent Nos. 1 to 3 acted in strict compliance with
the provisions of Juvenile Justice Act and Adoption
Regulation-2022
viii) The petitioner made online application for 7th respondent
for adoption after the infant child/Bhavya Shree was rescued
by the respondent no.4.
The learned counsel representing CARA based on the
aforesaid pleas contended that the Writ Petitions need
to be dismissed, since CARA guidelines had not been
followed.
CONCLUSION:-
33. A bare perusal of the proceedings of the S.I. of
Police, P.S.Medipally, Rachakonda Commissionarate
vide letter No.579/Cr/MK-4/RKD/2024 addressed to
the Child Welfare Committee, Medchal-Malkajgiri
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District filed as material document on record clearly
indicates that a request has been made by the S.I. of
P.S.Medipally, Rachakonda Commissionarate for
providing shelter, care and protection to the children
mentioned in the letter, dated 29.05.2024, on the
ground that the said children i.e., '4' male children and
'10' female children had been rescued during the
course of investigation on 28.05.2024 in pursuance to a
case that was registered on 22.05.2024 in Cr.No. 579 of
2024 under Sections 370, 372, 373 read with Section
34 IPC and Sections 81, 87 and 88 of the Juvenile
Justice ( Care and protection of Children ) Act, 2015.
34. It is the specific case of the respondent Nos. 7 & 8 in
W.P.No.19623 of 2024 appearing on behalf of SHO,
P.S.Medipally, Rachakonda Commissionerate, Medchal-
Malkajgiri District that in view of the fact that the adoptions
were not as per mandatory procedure of the Hindu
Adoptions and Maintenance Act, 1956, and in pursuance
to the complaint, dated 22.05.2024, and during the course
of investigation, it came to light that the children were
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purchased by paying amounts and since the same
involved monetary transactions, there was a clear
violation of Sections 81, 87, 88 of Juvenile Justice (
Care and protection of Children ) Act, 2015 and in view
of the fact that enquiry was still pending and in the
interest of welfare of children, the children were placed under
the custody of respective child welfare committees to provide
shelter, care and protection and accordingly, the custody of
the children was handed over to the respective child welfare
committees and hence, there is no illegality in the action of
the SHO, P.S. Medipally, Rachakonda Commissionarate.
Few relevant provisions for adjudication of the
present batch of Writ Petitions.
The Juvenile Justice ( Care and Protection of
Children) Act, 2015 came into force on 15.01.2016 with
a main objective to provide a framework for the care,
protection, treatment, development and rehabilitation
of child "in need of care and protection" and to protect
the rights of the child who are in conflict with law and
ensure that they are treated in a manner that is
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consistent with a principles of justice, dignity and
reformation in addition to other objectives.
i) Section 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;
ii) Section 2(ii) "adoption" -means the process through
which the adopted child is permanently separated from his
biological parents and becomes the lawful child of his adoptive
parents with all the rights, privileges and responsibilities that
are attached to a biological child;
iii) Section 2(12) "child" -means a person who has not
completed eighteen years of age;
iv) Section 2(13) "child in conflict with law" means a
child who is alleged or found to have committed an offence
and who has not completed eighteen years of age on the date
of commission of such offence;
v) Sections 2(40), "observation home" means an
observation home established and maintained in every district
or group of districts by a State Government, either by itself,
or through a voluntary or non-governmental organisation, and
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is registered as such, for the purposes specified in sub-section
(1) of section 47;
vi ) Section 2(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;
vii) Section 2 (56) "special home" means an institution
established by a State Government or by a voluntary or non-
governmental organisation, registered under section 48, for
housing and providing rehabilitative services to children in
conflict with law, who are found, through inquiry, to have
committed an offence and are sent to such institution by an
order of the Board;
viii) Section 2 (58) "sponsorship" means provision of
supplementary support, financial or otherwise, to the families
to meet the medical, educational and developmental needs of
the child;
ix) Section 2(60) "surrendered child" means a child,
who is relinquished by the parent or guardian to the
Committee, on account of physical, emotional and social
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factors beyond their control, and declared as such by the
Committee;
(x) Section-56(3) of HAMA Act:- Nothing in this Act
shall apply to the adoption of children made under the
provisions of the Hindu Adoption and Maintenance Act,
1956.
(xi) Section 80- Punitive measures for adoption without
following prescribed procedures.--If any person or
organisation offers or gives or receives, any orphan,
abandoned or surrendered child, for the purpose of adoption
without following the provisions or procedures as provided in
this Act, such person or organisation shall be punishable with
imprisonment of either description for a term which may
extend up to three years, or with fine of one lakh rupees, or
with both: Provided in case where the offence is committed by
a recognised adoption agency, in addition to the above
punishment awarded to the persons in-charge of, and
responsible for the conduct of the day-to-day affairs of the
adoption agency, the registration of such agency under
section 41 and its recognition under section 65 shall also be
withdrawn for a minimum period of one year.
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xii) Section 81- Sale and procurement of children for
any purpose.--Any person who sells or buys a child for any
purpose shall be punishable with rigorous imprisonment for a
term which may extend to five years and shall also be liable
to fine of one lakh rupees: Provided that where such offence
is committed by a person having actual charge of the child,
including employees of a hospital or nursing home or
maternity home, the term of imprisonment shall not be less
than three years and may extend up to seven years
xiii) Section 87-Abetment--Whoever abets any offence
under this Act, if the act abetted is committed in consequence
of the abetment, shall be punished with the punishment
provided for that offence. Explanation.--An act or offence is
said to be committed in consequence of abetment, when it is
committed in consequence of the instigation, or in pursuance
of the conspiracy or with the aid, which constitutes the
abetment.
35. A bare perusal of the above referred provisions
and the record in all the writ petitions clearly indicates
that none of the children in any of the writ petitions fall
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under the category of abandoned child as defined under
Section 2(1) of the Act, nor Orphan child as defined
under Section 2 (42) of the Act nor surrendered child as
defined under section 2(60) of the Juvenile Justice
(Care and Protection of Children) Act, 2015. Juvenile
Justice (care and protection of Children) Act, 2015 is
intended for "child in conflict with law and child in need
of care and protection". The children in all the subject
matters in all the present writ petitions are neither
children in conflict with law as explained under Section
2(13) of the Juvenile Justice (care and protection of
Children) Act, 2015 nor they are the children in need of
care and protection as explained under Section 2 (14)
the Juvenile Justice (care and protection of Children)
Act, 2015 ( referred to and extracted above) hence, this
Court opines that the application of the said Act and
invoking the provisions under the said Act is totally
unwarranted and uncalled for in so far as the
petitioners are concerned even as per the clear
admission made in the counter affidavits filed on behalf
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of the Respondent Nos. 1 to 6, that the children are
abandoned children.
36. A bare perusal of the Sections 80, 81 and 87 of
the Juvenile Justice (Care and Protection of Children)
Act, 2015 (referred to and extracted above) clearly
indicate that the said sections refer in particular to
three categories of children i.e., orphan, abandoned
and surrendered children and the petitioners herein do
not fall in any of the said three categories, even as per
their definitions has spell out under Section 2 of the
Juvenile Justice (Care and Protection of Children) Act,
2015.
37. Section 2(14) of Juvenile Justice (Care and
Protection of Children) Act, 2015 extracted hereunder:-
(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 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-
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(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
(vi)who does not have parents and no one is willing to
take care of, or whose parents have abandoned or
surrendered him; or
(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
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(ix)who is found vulnerable and 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;
38. Section 2 (14)(v) of Juvenile Justice (Care and
Protection of Children) Act, 2015 is extracted
hereunder:-
(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;
39. Section 31 of the Juvenile Justice (care and
protection of Children) Act, 2015 is extracted
hereunder:-
"guardian" in relation to a child, means his natural
guardian or any other person having, in the opinion of
the Committee or, as the case may be, the Board, the
actual charge of the child, and recognised by the
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Committee or, as the case may be, the Board as a
guardian in the course of proceedings;
40. A bare perusal of Section 2 (14) and Section 2
(14)(v) and Section 31 of the Juvenile Justice (care
and protection of Children) Act, 2015 (referred to and
extracted above) clearly indicates that a child can be
said to be "in need of care and protection" provided
child falls in either of the Clauses (i) to (xii) in the
present case none of the children as borne on record
fall in the clauses (i) to (xii) of Section 2(14) nor there
is any material on record indicating a declaration by
the Committee or Board as stipulated under Section
2(14)(v) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 that the parent/guardian of the
corpus is unfit or incapacitated, so as to invoke the
provisions of the Juvenile Justice (care and protection
of Children) Act, 2015. Admittedly, the action of the
respondent No.5 in proceeding against the petitioners
is without any Authority or jurisdiction.
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41. A bare perusal of Section 56(3) (referred to and
extracted above) clearly indicates that Sub section (3)
of Section 56 categorically excludes the adoptions
made under HAMA Act.
42. Learned Government Pleader for Women
Development and Child Welfare, and the other learned
counsel appearing on behalf of the respondents failed
to convince this Court in so far as tracing the power or
Authority of the respondents or the relevant provisions
of law which enable the respondents to take custody of
the children from the petitioners herein.
43. All the identical pleas put-forth in the counter
affidavit filed by the official respondent No.1 (referred
to and extracted above) and the pleas put-forth by the
other respondents had in fact been considered by the
Hon'ble Division Bench of Bombay High Court in its
judgment dated 22.07.2024 in Leelendra Deju Shetty &
Anr. Vs. The State of Maharashtra & Ors in Criminal
Writ Petition No.2487 of 2024 and batch.
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In the said batch of three Criminal Writ
Petitions filed seeking issuance of writ of habeas
corpus directing the concerned Child Welfare
Committee and in turn, "Baal Asha Trust", to produce
the child as it is the case of the each of the petitioner in
the said three Criminal Writ Petitions that the detention
of the child in "Baal Asha Trust" by Child Welfare
Committee is illegal and unauthorized in law. In the
said three Criminal Writ Petitions, the prayer sought for
was that the custody of the child should be handed over
by the Child Welfare Committee and Baal Aasha Trust to
them so that, the child is not deprived of protection and
care which the petitioners are ready to offer. The
relevant para Nos. 17, 21, 22, 23, 26, 27, 28 and 29 of
the said judgment are extracted hereunder:-
"17. The Child Welfare Committee constituted under
Chapter V of the Act is empowered to exercise the
powers and discharge the duties conferred in relation to
the child in need of care and protection and the
functions and responsibilities of the Committee include
to take cognizance of and receive the children produced
before it and conduct an inquiry on all the issues
regarding the safety and well-being of the child. It is
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pertinent to note that the Child Welfare
Committee would exercise its power only in
relation to the children in need of care and
protection, as defined in Section 2(14) Under
Chapter VI, when such a child is produced before
the Committee (CWC), by any person, including any
police officer or special juvenile police unit, public
servant, Childline Services or any voluntary or NGO or a
Child Welfare Officer or Probation Officer, any social
worker or by the child himself, the procedure prescribed
therein shall be adopted.
Upon production of the child or receipt of the report, the
Committee shall hold inquiry and pass an appropriate
order sending the child to children's home or fit facility
or fit person, and for speedy social investigation by a
social worker or Child Welfare Officer or Child Welfare
Police Officer, with a proviso that all children below six
years of age, who are orphan, surrendered or appear to
be abandoned shall be placed in a Specialised Adoption
Agency, where available.
21. From reading of the scheme of the enactment,
which we have highlighted above, it is evidence that the
category of children, who can be given in adoption,
must be the one who are in need of care and protection
and this term has a definite connotation. The sub-
categorisation in this larger category is the children,
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who are orphan or abandoned and the legislature had
deemed it fit to even define these terms.
An 'abandoned child' is defined in Section 2(1) as a child
deserted by his biological or adoptive parents or
guardians, M.M.Salgaonkar 19/29 WP-2487-14+2. Odt
and who has been declared as abandoned by the
Committee after due inquiry.
Similarly, the 'orphan' is also defined in Section 2(42) to
mean a child, (i) who is without biological or adoptive
parents or legal guardian; or (ii) whose legal guardian is
now willing to take, or capable of taking care of the
child. Section 2(60) defines 'surrendered child' to mean
a child, who is relinquished by the parent or guardian to
the Committee, on account of physical, emotional and
social factors beyond their control, and declared as such
by the Committee.
22. With this categorisation being in place, it is
to be ascertained as to whether the children for
whose production the Petitioners have
approached this Court for issuance of writ in the
nature of habeas corpus, would fall within the
category of 'children in need of care and
protection'.
Learned Amicus Curiae Ms.Singhania, apart from
submitting that the children are being placed in
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the custody of Baal Asha Trust, as per the
directions of Child Welfare Committee, has urged
that the three children involved, would fall within
the category of 'abandoned' or 'orphan' children
and this inference is drawn by her, by submitting
that the biological parents of the respective child
have refused to take their care and in a sense,
when the natural parents have sold them for a
consideration, which is the accusation in the FIR
or given them in adoption, without following the
appropriate procedure, have deserted them, and,
therefore, they are the children who would fall
within the scope of 'children in need of care and
protection'.
23. We are unable to subscribe to the view expressed
as above, as we have noticed that the Act of 2015 has
defined the term 'abandoned child' as the one who is
deserted either by his biological parents or adoptive
parents or guardians and when a child is given by the
biological parents in the custody either of adoptive
parents or guardians, definitely the child is not
'abandoned'. Further, 'orphan' is a child, who is without
biological or adoptive parents or legal guardian or
whose legal guardian is not willing to take, or capable of
taking care of the child, but all the three children, in
respect of whom the writ of habeas corpus is filed would
not even come within the fold of this term. In addition,
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'surrendered child' is the one who is relinquished
by the parent or guardian to the Committee, on
account of physical, emotional and social factors
beyond their control, and definitely, parting with a
child, though for a consideration paid to a third
party or through some middleman, also would not
bring the child within the purview of 'surrendered
child'.
26. However, in the present Petition before us, since
we have concluded that the children involved do not fall
category of 'children in need of care and protection', the
custody being handed over to Respondent No.3 by CWC
cannot be justified, as CWC itself does not get any
power to deal with these children, who are neither
'abandoned' nor 'orphans'.
In addition, one important factor, which must be borne
in mind is that the Petitioners, though without adhering
to the procedure formulated in law, were handed over
the custody of the minor children by the biological
mothers and there is no application by the
biological mothers or biological parents, seeking
custody of their children. Worth it to note that the
FIR has not arraigned the Petitioners as accused and at
this stage, we need not go into the legality or otherwise
of the Adoption Deeds, as we have already noted that
the said documents do not satisfy the compliance of
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HAMA in totality, but like in the case of Shettys,
biological mother is dead, whereas in one of the case,
the biological mother is arrested.
Since we are restricting ourselves, at this stage, only for
consideration of prayer for issuance of writ of habeas
corpus, as it is contention of the Petitioners that the
custody of the minor children, has been handed to
Respondent No.3 by the CWC, by assuming jurisdiction
over the said children merely on the pretext that an FIR
was registered, wherein the Petitioners are not
arraigned as accused, but is based on an allegation that
there is some racket, which is operating for trafficking
of the children.
One most important aspect, which we must consider is
the offence, which has been invoked in the subject FIR
i.e. Section 370 read with Section 34 of IPC. Prima facie
Section 370 would be attracted in case of trafficking of a
person, since it contemplates that whoever for the
purpose of exploitation transfers or receives a person by
using threat or by using force or any form of coercion or
by abduction or by practicing fraud or deception or by
any inducement, the offence of trafficking is said to be
committed.
Explanation appended to the said Section clearly spell
out that the expression 'exploitation', shall include any
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act of physical exploitation or any form of sexual
exploitation, slavery or practices similar to slavery,
servitude, or the forced removal of organs.
Prima facie, at this stage, we do not find that the
prosecution alleges that the children are either
transferred or received by any of the mode specified
under Section 370 and it is for the purpose of
exploitation, as understood in the said Section.
Similarly, as far as Sections 81 and 83 of the Act of
2015 are concerned, Section 81 punishes an act of a
person, who sells or buys a child for any purpose, but
the proviso clarify that such offence is committed by a
person having actual charge of the child, including
employees of hospital or nursing home or maternity
home and this, therefore, would not cover a biological
mother/parents or any person acting on their behalf.
Similarly, Section 83 of the Act of 2015 is also invoked
and we fail to find any justification in invoking this
Section, which prescribe the punishment for use of a
child by militant group or its outfit declared by the
Central Government.
Though the learned A.P.P. Ms.Deshmukh would invoke
sub-section (2) of Section 83, according to us, it is not
the case of the prosecution in the FIR that the children
were used for illegal activities, either individually or as a
gang.
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Very fairly, the prosecution has dropped Section 85,
though it was initially invoked.
27. The learned counsel Mr.Arshil Shah has placed
reliance upon various orders passed by this Court and
we have taken note of these orders, where in the
backdrop of an FIR registered in a similar fashion, by
way of interim order, keeping the welfare of the child in
mind, the petitioners, who approached the Court for
issuance of habeas corpus, were permitted to take
temporary custody of the child and this was in the case
of Harishbhai C. Limbachiya & Anr. Vs. State of
Maharashtra & Ors. (Writ Petition No.1489 of 2017) and
also in case of Petrik francis Rodrigues & Anr. Vs. State
of Maharashtra & Ors. (Writ Petition No.334 of 2017).
In addition, a decision from Telangana High Court,
which has thrown light on this aspect, is also
placed before us, being in the case of Kommuri
Sriniwas & Anr. Vs. The State of Telangana,
through Principal Secretary, Women Development
and Child Welfare, Secretariat, Hyderabad & Ors.
(Writ Petition No.9591 of 2020).
The petitioner before the Court assailed the action
of the second respondent-Child Development
Project Officer, in taking forcible custody of the
child and sending to Shishu Gruha, Sangareddy as
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illegal and arbitrary and seeking direction to
release the child to the care and protection of the
petitioners, who was adopted by them, by
performing the rituals of 'Datta Homam'.
The second respondent, on marking appearance, stake
its case that the officials received information that
respondent Nos.5 and 6 have sold the child for money
to the petitioners and they were counselled to keep the
child, but on home inquiry, it was revealed that
respondent Nos.5 and 6, on account of their poverty,
sold the child to the petitioners through a middleman for
Rs. Three Lakhs. The ICDS staff rescued the child and
admitted in Shishy Gruha, Sangareddy and FIR came to
be registered under the provisions of the J.J.Act.
The biological parents of the child adopted a stand that
they had agreed to give the child in adoption to the
petitioner before the child was delivered and in presence
of all the family members and the relatives, the baby
was handed over and was taken care of. It is in this
background, reference was made to the decision in the
case of Lakshmi Kant Pandey Vs. Union of India, to
submit that the issue is no longer res integra and the
law is well settled to the effect that the adoptions made
under HAMA Act are outside the purview of the Juvenile
Justice Act and CARA regulations."
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28. We are fortified by the aforesaid observations in
concluding that since all the three children before us
cannot be termed as 'orphan' or 'abandoned' and, they
do not fall in the category of the children in need of care
and protection, as defined in Section 2(14) of the Act of
2015, the orders passed by CWC handing over their
custody to Respondent No.3 is illegal, as CWC was not
competent to exercise jurisdiction over the said children
and transfer the children to Respondent No.3-Baal Asha
Trust.
Since the biological parents are not coming forward to
claim custody of these children and on the other hand,
since we have noticed that the Petitioners were having
custody of these children and, particularly, the
Petitoner-NVS Rajesh and the Petitioner-Azharuddin
Naushad Shaikh allegedly adopted the girl and boy child
respectively aged, six days old and they have taken
them in their embrace and, since then the infants have
been part of their family.
29. We leave it open to the Petitioners to adopt
the prescribed procedure for continuing the
custody of the child with them, by having validly
executed Adoption Deeds or by following any
other legal procedure, which would allow them to
retain their custody forever.
In any case, if the children are put in the care of
Respondent No.3, and in case if they are below two
years of age, then it is imperative for the CWC to
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declare them free for adoption and, therefore, taking
into consideration the paramount interest of the
children, who are presently in custody of the respective
Petitioners, we are satisfied that the case is made out
by the Petitioners in all the three Petitions for issuance
of writ in the nature of habeas corpus, for directing
Respondent No.2-Child Welfare Committee and
Respondent No.3-Baal Asha Trust, Mahalaxmi to hand
over the custody of the children to the respective
Petitioners within a period of 24 hours of uploading of
this judgment and order.
By making the Rule absolute, we allow the Petitions, by
directing Respondent No.2-Child Welfare Committee and
Respondent No.3-Baal Asha Trust to act as under:-
(a) To hand over the custody of child, Ms.Kartika
to the Petitioners, Mr.Leelendra Deju Shetty and
Smt.Shashiprabha Leelendra Shetty in Writ
Petition No.2487 of 2024.
The CARA guidelines as well as the definitions of the
'abandoned' and 'orphan' child were specifically
reproduced along with the adoption procedure to be
adopted in the backdrop of the definition of the term
'child in conflict with law'.
On having a conspectus of whole scheme and the CARA
guidelines, the following observations resulted in
handing over the child to the petitioners (adoptive
parents) and the observation reads to the following
effect :-
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".......In the light of the clear analysis and
categorical declaration of law by the Supreme
Court as well as the High Court of Delhi, High
court of Kerala 5 AIR 1984 SC 469 and the High
Court of Punjab and Haryana, in the absence of
there being unimpeachable and absolute material
for the respondent authorities to say that the
adoption claimed by the petitioners to be sham
and not acceptable, is totally unreasonable and
arbitrary and without there being any basis. The
understanding of the authorities that 2017
Regulations would apply with respect to every
adoption and the adoptions can be made only
under the 2017 Regulations is only on account of
misinterpreting the provisions and on account of
the improper understanding of the width and
scope of the Juvenile Justice Act and Regulations
vis-à-vis provisions of HAMA.
Yet another contention of the learned
counsel for the respondent No.4 that the
adoption deed claimed by the petitioners is
not registered and thus the same would have
no validity is also liable to be rejected. What
all Section 16 of the HAMA Act declares is the
effect of registration of adoption deed, and
the weight that is required to be given to the
same when the same is legally challenged. A
close scrutiny of the provisions of HAMA Act
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does not disclose there being any set
procedure, or a ritual or a necessity of a
written deed for a valid adoption to come
into existence. These aspects of the matter
are also no longer res integra and it is not
necessary for this Court to reproduce the
same, as the same are available in various
legal journals.
The restrictive scope of Juvenile Justice Act, and
inapplicability of the same to the adoptions made
under the HAMA Act were noticed and elaborately
dealt by a Division Bench of Kerala High Court and
the Punjab and Haryana High Court, apart from
the clear and ample guidance provided in the
judgment of the Supreme Court in M/s Shabnam
Hashmi v. Union of India. Further the Delhi
High court in PKH v.Central Adoption
Resource Authority in categorical terms held
that a Hindu child who is offered and
accepted in adoption under Hindu Adoptions
and Maintenance Act, 1956, by no stretch of
imagination, can be termed as a surrendered
child.
In those circumstances, this writ petition is
allowed and the respondent no.2 is directed
to handover the child to the petitioners
(adoptive parents) in the presence of
respondents 5 and 6 (biological parents). No
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costs. Miscellaneous petitions, if any pending,
shall stand closed."
(b) To hand over the custody of child, Master
Ayaan to the Petitioners, Mr.Azharuddin Naushad
Shaikh and Smt.Sabanaz Azharuddin Shaikh in
Writ Petition(St)No.11398 of 2024.
(c) To hand over the custody of child,
Ms.Rehanika to the Petitioners, Mr.NVS Rajesh
and Smt.M.V.Puja Laxmi Kameshwari in Writ
Petition (St)No.10984 of 2024."
44. A bare perusal of the observations of Division
Bench of the Bombay High Court in Leelendra Deju
Shetty & Anr. Vs. The State of Maharasthra & Ors.,
dated 22.07.2024 (referred to and extracted above)
and the application of the said principles laid down in
the said judgment to the facts in the present batch of
writ petitions clearly indicate that in view of the fact
that none of the children in the present writ petitions
fall under the category of orphan, abandoned or
surrendered children, they admittedly do not fall in the
category of the child in need of care and protection as
defined in Section 2(14) of Juvenile Justice (Care and
Protection of Children) Act, 2015, and hence, this Court
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opines that the respective Child Welfare Committees
acting upon the instructions of the concerned police is
without any Authority of law.
45. The judgment relied upon by the learned
Government Pleader for Women Development and Child
Welfare reported in (2014) 4 SCC 1 in Shabnam Hashmi
Vs. Union of India and Others in fact supports the case
of the petitioners in view of the fact that vide the said
judgment it is held that the aspiring parents who intend
to adopt children, without being inhibited by their
personal laws, are entitled to adopt a child in terms of
the provisions of the Juvenile Justice Act.
46. Another judgment relied upon by the learned
Government Pleader for Women Development and Child
Welfare reported in (2022) 13 SCC 458 in Contagion of
COVID-19 Virus in Children Protection Homes, IN RE
Contagion only pertains to issuance of certain
directions pertaining to collection of information
relating to children who have either been abandoned,
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lost both parents, or lost one parent and the said
judgment also has no application to the facts of the
present case in all the batch of the present writ
petitions.
47. The facts in all these batch of writ petitions as
borne on record indicate the minor children being
placed in the custody of the petitioners, or by their
biological parents or by the person projecting as their
caretaker/guardian. The children continue to be in the
care and protection of the petitioners from the date of
the alleged adoption Deeds and form part and parcel of
their families. Due to the registration of the subject
FIR's, the children were separated from them despite
the fact that they had taken care of them very well and
had showered all their love and affection upon them
and were emotionally attached to them. The children
were taken away from the custody of the petitioners
without Authority of law and were produced before the
respective Child welfare Committees (CWC) which in
turn housed them in Child Protection Services (ICPS)
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on the pretext that the Adoption Deeds are not valid in
the eye of law, and it was suspected that there is child
trafficking racket which is involved and since the FIR's
had been registered against few of the petitioners and
the same are under investigation.
48. In each of the case, the petitioners specifically
contend that they are financially sound and are in a
good position to take care of the needs of the children
and would ensure proper education to be imparted and
assure to provide good atmosphere, so as to bring up
the children as good human beings and good citizens of
the country.
49. In most of the present batch of '9' Writ Petitions
FIRs had been registered against the petitioners under
Sections 370, 372, 373 read with 34 IPC, Sections 81,
87 of Juvenile Justice (Care and Protection of Child)
Act, 2015, 88 Juvenile Justice (Care and Protection of
Child) Act, 2000. This Court opines, Section 370 read
with Section 34 IPC would be attracted in case of
trafficking of a person and the Explanation appended
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to the said Section clearly spell out that the expression
"Exploitation" shall include any Act of physical
exploitation or any form of Sexual Exploitation, Slavery
or practices similar to Slavery, Servitude, or the forced
removal of organs. The material on record in all the '9'
Writ Petitions indicates that prosecution has not
alleged that the children are either transferred or
received by any of the mode specified under Section
370, for the purpose of exploitation as explained in the
said Section.
50. A bare perusal of the subject FIR's do not indicate
the ingredients so as to constitute the offences under
Sections 372 and 373 IPC as well.
51. A bare perusal of Section 81 and 87 of the
Juvenile Justice (Care and Protection of Child) Act,
2015 indicates that Section 81 stipulates punishment
for an act of a person, who sells or buys a child for any
purpose, but the proviso thereto clearly clarifies that
such offence as having been committed, by a person
having actual charge of a child including employees of
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hospital or nursing home, or maternity home and this,
therefore, would not cover a biological mother/parents
or any person acting on their behalf. Similarly, Section
87 of the Juvenile Justice (Care and Protection of Child)
Act, 2015 is also not applicable in the present case
52. The Apex Court in the judgment reported in
Lakshmikant Pande Vs. Union of India reported in AIR
1984 SC 469 had laid down certain guidelines
promoting inter-country adoption.
53. The Kerala High Court in the judgment reported in
1999 SCC Online ker 5 in Philips Alfred Malvin Vs.
Y.J.Gonsalvis and Others held that the Hindu law,
Mohammedan law and Canon law recognized adoption.
54. A Division Bench of this Court at Hyderabad in its
recent judgment, dated 16.05.2024 passed in W.P.No.
13338 of 2024 in an habeas corpus petition filed for
taking custody of the corpus namely Jeevika Gupta,
who is aged about 2 years and 9 months, by contending
that petitioner No.1 is the person, who has taken the
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corpus in adoption by way of Deed of Adoption dated
27.07.2021 and thereafter, the specific grievance of the
petitioner thereunder was that on 28.04.2024 around
4:30 pm two members claiming to be "Bal Rakshaks"
came with two constables and entered the house of
petitioner No.1 forcibly and took the child from his
custody. At para No.7, 8 and 9 of the said judgment, it
is observed as under:-
7. Before dealing with the contentions of both sides, it is
apt to refer to Section 2 (14) (v) and Section 31 of Act
of 2015, on which reliance is placed by the learned
counsel for the respondents-State, which are
reproduced as under:
"Section 2: Definition
(14) child in need of care and protection" means a
child--
(i)...
(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
Section 31: Production before Committee
(1) Any child in need of care and protection may be
produced before the Committee by any of the following
persons, namely:--
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(i) any police officer or special juvenile police unit
or a designated Child Welfare Police Officer or any
officer of District Child Protection Unit or inspector
appointed under any labour law for the time being
in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-
governmental organisation or any agency as may
be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a
nursing home, hospital or maternity home:
Provided that the child shall be produced before
the Committee without any loss of time but within
a period of twenty-four hours excluding the time
necessary for the journey.
(2) The State Government may make rules consistent
with this Act, to provide for the manner of submitting
the report to the Committee and the manner of sending
and entrusting the child to childrens home or fit facility
or fit person, as the case may be, during the period of
the inquiry."
8. A conjoint reading of aforesaid makes it clear
that a child can be said to be 'in need of care and
protection' provided the parent, who has a
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custody of said child is found to be 'unfit' or
'incapacitated' by Committee or the body to care
for and protect the safety and well being of the
child. Thus, finding of Committee is sine qua non
whether parent is 'unfit' or 'incapacitated'. Putting
it differently, unless the Committee takes a
decision that the parent/guardian of the corpus is
'unfit' or 'incapacitated', the child cannot be said
to be "in need of care and protection".
9. Despite our repeated query, the learned counsel
for the State could not show us any enabling provision
pursuant to which respondent Nos.2 and 3 could have
forcibly taken the corpus from the custody of petitioner
No.1. In absence of showing any enabling provision, we
are unable to countenance the action of the respondents
in taking the custody of the child. Resultantly, we are
of the opinion that the child was taken from the
custody of petitioner No.1 without any authority
of law. Thus, the respondents are directed to
forthwith return the child/corpus to petitioner
No.1. The learned counsel for the State is directed to
communicate this order to respondent Nos.2 and 3
during the course of the day. This order will not come in
the way of respondents to proceed against petitioner
No.1 if law so permits. So far the claim of compensation
is concerned, in this Writ Petition; we are not inclined to
enter into the said aspect. In order to decide the aspect
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of compensation various ingredients are required to be
looked into. We are only inclined to give liberty to the
petitioner to avail appropriate remedy under the civil
law for the purpose of compensation.
55. A learned Single Judge of this Court in a judgment
dated 05.01.2021 in W.P.No. 9591 of 2020 in Kommuri
Srinivas and another Vs. The State of Telangana
through Principal Secretary Women Development and
Child Welfare, Secretariat Hyderabad and Others
considered the following questions in the said case
i) Whether the action of the respondents in taking away
the child is valid and sustainable ?
ii) Whether the adoption claimed by the petitioners and
the respondent Nos. 5 & 6 is liable to be ignored ?
iii) Whether in the facts of the said case the provisions
of Juvenile Justice Case, and CARA guidelines applied
and over right the Hindu Adoptions and Maintenance
Act (HAMA) (1956).
The above referred questions in the said judgment
were answered as under:-
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At the outset, it may be mentioned the applicability or
inapplicability of the Juvenile Justice Act and CARA
guidelines is no longer res integra. The Hon'ble
Supreme Court after tracing the history of enactment of
Juvenile Justice Act, and the Rules made there under,
and after analyzing the judgments rendered up to the
date in Anokha case, in paragraph 8, had noted the
matters relating to adoptions and categorized them into
three classes viz., (i) children who are orphaned or
destitute or whose biological parents cannot be traced;
(ii) children whose biological parents are traceable but
have relinquished them or surrendered them for
adoption, and (iii) children living with their biological
parents. The above classification though was made in
the context of adoptions of children to outside country
couples, the classification would throw light with respect
to the scope and ambit of the Juvenile Justice Act and
CARA guidelines. In the same judgment, the Supreme
Court further held that the third category was expressly
excluded from consideration in Lakshmi Kanth Pandey's
case further recognizing the right of the biological
parents to give their child in adoption to foreign
parents. Observations made in the said judgment would
squarely apply even with respect to the adoptions within
the country so long as the adoptions are being made
among the consenting parties and subject to their
personal laws. In other words, the judgment of the
Supreme Court is categorical and in unequivocal terms
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laid down that the CARA guidelines apply to "aforesaid
observations only pertain to children who have
been or are sought to be relinquished or
surrendered for adoption in general to a
placement agency or other institution where there
is no contact between them and the adoptive
parents at all and not to cases where the child is
living with his/her parent/parents and is agreed
to be given in adoption to a particular couple who
happen to be foreign."
.....................
As a matter of fact, the Regulation 9, Chapter 3 under
the Heading - Adoption Procedure for Resident Indians,
is restrictive in its application to the Adoption of
Orphans, Abandoned or Surrendered children. The very
Juvenile Justice Act in Sub Section 3 of Section 56
categorically excludes the adoptions made under HAMA
Act.
In the light of the clear analysis and categorical
declaration of law by the Supreme Court as well as the
High Court of Delhi, High court of Kerala and the High
Court of Punjab and Haryana, in the absence of there
being unimpeachable and absolute material for the
respondent authorities to say that the adoption claimed
by the petitioners to be sham and not acceptable, is
totally unreasonable and arbitrary and without there
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being any basis. The understanding of the authorities
that 2017 Regulations would apply with respect to every
adoption and the adoptions can be made only under the
2017 Regulations is only on account of misinterpreting
the provisions and on account of the improper
understanding of the width and scope of the Juvenile
Justice Act and Regulations vis-à-vis provisions of
HAMA.
Yet another contention of the learned counsel for
the respondent No.4 that the adoption deed claimed by
the petitioners is not registered and thus the same
would have no validity is also liable to be rejected. What
all Section 16 of the HAMA Act declares is the effect of
registration of adoption deed, and the weight that is
required to be given to the same when the same is
legally challenged. A close scrutiny of the provisions of
HAMA Act does not disclose there being any set
procedure, or a ritual or a necessity of a written deed
for a valid adoption to come into existence. These
aspects of the matter are also no longer res integra and
it is not necessary for this Court to reproduce the same,
as the same are available in various legal journals.
The restrictive scope of Juvenile Justice Act, and
inapplicability of the same to the adoptions made under
the HAMA Act were noticed and elaborately dealt by a
Division Bench of Kerala High Court and the Punjab and
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Haryana High Court, apart from the clear and ample
guidance provided in the judgment of the Supreme
Court in M/s Shabnam Hashmi v. Union of India5.
Further the Delhi High court in PKH v. Central
Adoption Resource Authority6 in categorical terms
held that a Hindu child who is offered and accepted in
adoption under Hindu Adoptions and Maintenance Act,
1956, by no stretch of imagination, can be termed as a
surrendered child.
In those circumstances, this writ petition is
allowed and the respondent no.2 is directed to
handover the child to the petitioners(adoptive
parents) in the presence of respondents 5 and 6
(biological parents). No costs. Miscellaneous petitions, if
any pending, shall stand closed.
56. Taking into consideration:-
i) The aforesaid facts and circumstances of the case.
ii) The averments made in the counter affidavit filed
by the respondent No. 1 to 6 in W.P.No. 2181 of 2024
(referred to and extracted above).
iii) The submissions made by all the learned counsel
on record.
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iv) The view of the Courts in the various judgments
on the subject issue ( referred to and extracted above).
v) The fact as borne on record that none of the
children involved in the present batch of writ petitions
fall in the category of children "in need of care and
protection".
vi) Duly considering the objectives of the Juvenile
Justice (Care and Protection of Children) Act, 2015.
vii) The fact as borne on record that there is no
application by the biological mothers or biological
parents seeking custody of their children in the batch of
'9' Writ Petitions.
viii) The fact as borne on record and referred to even in
the counter affidavits that few of the petitioners had
filed online applications to the CARA for adoption.
ix) In the light of the discussion and conclusion at para
Nos. 28 to 55 as arrived at as above
This Court opines that the custody of the children
handed over to the respective child welfare committees
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is without any justification since the said committees
do not get any power to deal with these children who
are neither orphans or abandoned or surrendered
children.
This Court opines that the respondents herein who
are duty bound to function and act legally acted in
excess of their legal Authority without jurisdiction,
hence they are subject to the controlling jurisdiction of
this Court under Article 226 of the Constitution of India.
All the present Writ Petitions are allowed as
prayed for. It is however observed that it is open to
the petitioners to adopt the prescribed procedure for
continuing the custody of the children with them, if
they so desire by having validly executed Adoption
Deeds or by following any other legal procedure which
would allow them to retain their custody forever as
observed by the Division Bench of Bombay High Court,
in its judgment dated 22.07.2024 in Leeelendra Deju
Shetty & Anr. Vs. The State of Maharashtra & Ors. &
batch. However, there shall be no order as to costs.
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Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
___________________________
MRS. JUSTICE SUREPALLI NANDA
Date: 23.09.2024
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