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Bombay High Court: Adoption Deed Not Enough To Claim Custody of a Child

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As the biological mother of the girl child was not willing to take care of her baby, a letter was sent by NGO Childline to Child Welfare Committee (CWC) mentioning the mother’s decision to either give the child for adoption or to keep her in some Ashram. The possibility of the child being sold was also stated. CWC directed the mother to come before it with the girl child once a month and asked Childline to supervise the activities of the mother by visiting her once a month. But immediately thereafter, a notarized Adoption Deed was signed by the mother whereby the girl child was purportedly given in adoption to the petitioners, who then took the baby to Punjab. When Childline visited the house of the mother, it was known that the mother had received Rs.20,000/- for giving away her child. The mother later admitted receiving Rs.40,000/-. Thus, CWC directed the child to be handed over to “Vatsalya Trust”, a Special Adoptive Agency. Petitioner No.1 filed applications to meet and celebrate the child’s birthday. The biological mother also filed an application before CWC for custody of the child. In the Social Investigation report, the mother came up with various statements. Firstly, she said that she was impregnated by her friend. Later, she was raped by her employer. She stated that she handed over her child to the petitioners out of goodwill and that they had given her financial help of about Rs.20,000/- for the treatment and groceries. It was observed in the report that the mother was possibly suffering from mental illness. CWC passed an order rejecting all applications. The biological mother filed a second application seeking custody claiming that she was physically and financially capable of taking care of her child.

Petitioner’s arguments

 The petitioners have relied upon the notarized Adoption Deed to prove that they had not committed any offence under Section 80 of the Juvenile Justice Act. They referred to Section 56(3), which states that nothing in the Juvenile Justice Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956. It was submitted that the biological mother of the child had willingly given the child in adoption to the petitioners by executing the Adoption Deed. The requirements for a valid adoption as per the provisions of the Hindu Adoption Act were fully satisfied and, therefore, by operation of Section 56(3) of the Juvenile Justice Act, Section 80 did not apply. It was further submitted that once it was found that the petitioners had validly adopted the girl child, there was no jurisdiction with CWC to take away the custody of the child. The case of Mst. Param Pal Singh through Father v. National Insurance Company & Ors. was relied upon.

Respondent’s arguments

 Learned counsel on behalf of CWC submitted that the provisions of the aforesaid Act are applicable as the child needed care and protection as defined under Section 2(14) of the Juvenile Justice Act. The documents submitted show that the child was sold by the biological mother and that such an act could not be covered up based on the said purported Adoption Deed. Importance was paid to reports and observations made by the representatives of the NGO regarding the background in which the mother had given birth and how she had accepted money for handing over the said child to the petitioners. It was also stated that reliance could not be placed on the notarized Adoption Deed as the proper procedure for adoption of the child ought to have been undertaken by the petitioners. It was also submitted that the child could not be said to be in illegal detention. The case of Exploitation of Children in Orphanages in State of Tamil Nadu, in Re. v. Union of India & Ors. and S. Vanitha v. Deputy Commissioner, Bengaluru Urban District & Ors. were cited.

Court’s observation

The documents presented by the Child Welfare Committee highlights the biological mother’s unwillingness in taking care of her child. This shows that the child is in a situation where her needs are not likely to be taken care of by the parents and thereby needs care and protection as defined under the provisions of the Juvenile Justice Act Section 2(14)(v). The court considered the Adoption Deed and found that it nowhere indicates that the adoption is under the provisions of the Hindu Adoption Act. No other material indicates that the requirements of the Hindu Adoption Act about a valid adoption were fulfilled. The ratio of Mst. Param Pal through Father v. National Insurance Company & Ors. won’t hold as in that case, documentary and oral evidence were present along with the Adoption deed to prove the factum of adoption. By merely executing a notarized document purporting to be an Adoption Deed, the petitioners cannot claim that they have a right to hold custody of the girl child. This is particularly in the backdrop of the fact the biological mother stated that she had received Rs.40,000/- from the petitioners after giving away the girl child.  Although she claimed that the amount was given to her for her treatment and groceries, the material on record indicates otherwise. As per Clauses (i) to (xviii) of Section 30, CWC was justified in sending the girl child to Vatsalya Trust. Even the provisions of Section 1(4) of the Juvenile Justice Act shall apply to all matters concerning children in need of care and protection. This makes it clear that CWC has acted as per the mandate of law. The Directive Principles of State Policy were also referred to emphasise the role of institutions established under the provisions of the Juvenile Justice Act and how these institutions need to give effect to the provisions of the Act.

Court’s Judgement

As the order passed by the CWC is by law, and the girl child is in legal custody of CWC, the writ petition is dismissed.

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