The Supreme Court Bench of Justices Hemant Gupta and V. Ramasubramanian on Friday granted custody of minor child to the adoptive parents Kripal and Balwinder since biological mother had no objection to hand over custody of girl child to adoptive parents and in the meanwhile, issued notice to the Child welfare Committee.
Raja Thakare, Senior Advocate appeared on behalf of adoptive parents and urged to provide the custody of minor child from the possession of Child Welfare Committee.
Senior Advocate Salman Khurshid, appeared on behalf of Durgamiti, biological mother of a child submitted that by way of adoption deed , a girl child was purportedly given in adoption to Kripal and Balwinder. The Bench submitted that the child is not even in the custody of adoptive parents and of Biological mother, but is in custody of Child Welfare Committee, and child is orphaned by the order of the court. The Bench, on a lighter note addressed to counsel of Petitioners that “you are asking for lesser relief, seeking interim relief of custody of a child.”
Kripal and Balwinder filed appeal against the impugned order of Bombay High Court, seeking release of minor child and handing over her custody to petitioners. The division bench of Bombay High court vide order dated 18.3.2021, made observation that girl child is in need of care and protection, which CWC is providing in terms of provisions of Juvenile Justice Act and dismissed the Habeas Corpus writ. The petitioner claimed that they adopted the said child, when she was about 2 weeks old.
The fact of the case is that a intimation letter was sent to Child welfare Committee stating that Durgamiti ,biological mother of girl child had no will to take care of child and she had decided to give her up for adoption and it is possible that girl child can be sold by biological mother. Acting upon such letter, the CWC directed Durgamati to come before it with girl child once in a month and also directed NGO to keep an eye on the activities of biological mother by visiting her once in a month.
Immediately thereafter, on 22/01/2019, a notarized adoption deed was signed by respondent No.3, whereby the girl-child was purportedly given in adoption to the petitioners herein. On this basis, the girl-child was given to the petitioners, who took her to Punjab.
The biological mother admitted before CWC that she had received Rs. 40,000/- amount from petitioners for handing over the girl child. For this Reason, the FIR was lodged against Kirpal and Durgamiti u/s 80 of Juvenile Justice Act, thus, the CWC decided that girl child should be taken back and be handed over to Vatsalya Trust which is a special adoptive agency.
The petitioners contended before High Court of Bombay that they have not committed offence under section 80 of Juvenile Justice Act and further relied upon section 56(3) of Juvenile Justice Act depicting that nothing in Juvenile Justice Act shall apply to adoption of children made under provisions of Hindu Adoption and Maintenance Act,1956.
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The High court held that the girl child was in need of care and protection , thus, the CWC acted upon within their domain and functions prescribed under Juvenile Justice Act and proceeded correctly by taking over the custody of minor girl child.
The CWC relied upon case of Exploitation of Children in Orphanages (supra) and S. Vanitha (supra). In the said judgments, the Hon’ble Supreme Court has emphasized upon the necessity to ensure that the rights of the children are protected and that broad and purposeful interpretation is given to the definition “child in need or care and protection” under Section 2(14) of the Juvenile Justice Act