A petition was filed under Article 226 of the constitution to grant Permission for adopting an abandoned girl child in the interest of justice.
Facts of the Case
The petitioner, aged about 32 years, housewife, residing with her husband viz. Timir Sheth married for the last 14 years. Out of the wedlock, the petitioner has no child of her own. It is further stated by the petitioner that the husband of the petitioner is carrying out Diamond Business at Surat. They are financially and monetarily sound as well as having a good reputation and dignity in society.
On 08.10.2019, one abandoned girl child came to be found from area of Deesa Railway Station at around 4.30 p.m. by local residents and media person; were concerned police, 108 and uncle of the petitioner reached the spot. The child was given first aid and through private vehicle by she was taken to Hospital, Deesa since her condition was critical.
After hospitalizing the child in the evening, concerned Doctor suggested lodging complaint. Therefore, FIR was lodged dated with Deesa Police Station, Dist: Banaskantha for the offence punishable under Section 317 of the Indian Penal Code against unknown lady for dumping girl child of 1520 days.
On 09.10.2019, the petitioner acknowledged about the said child and immediately reached Deesa from Surat to take care of her and since then, the child is under care of the petitioner thereafter, the petitioner was also permitted to have the interim custody of child as per order dated 30.10.2019, passed by the Child Welfare Committee, Banaskantha.
The petitioner is taking care of girl child since 09.10.2019 and she has been nurturing her with motherly love and affection and taking utmost care of the child which is stated on oath by the petitioner no.1.Thereafter, the petitioner no.1 made an application before the Child Welfare Committee, Banaskantha on 19.11.2019 with a request to consider her application for adopting an abandoned girl as a special circumstance.
That one FIR is lodged against the petitioner No.2 for illegally having the custody of child contrary to provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the “Act”).
The petitioner, therefore, filed this petition for appropriate relief(s), as mentioned hereinabove.
Arguments for adopting an abandoned girl
Learned Advocate for the petitioner submitted that the petitioner does not claim in any manner the permanent custody of girl child at present. By taking into consideration the facts of present case, he further submitted that if the custody of child is given to petitioner the petitioner shall take utmost care of child till the application for adoption is decided by and shall abide by any condition which may be imposed by the respondent no.2 Child Welfare Committee, Banaskantha, permitting to retain custody of child till her application is decided.
On other hands, learned Assistant Government Pleader for the respondent’s State submitted that as per provision of Section 31 of the Act, a child in need of care and protection may be produced before an individual member for being placed in safe custody or otherwise when the Committee is not in session. As per Section 38 of the Act, there is a procedure of declaring the child legally free for adoption. She also referred to the provisions of Section 33 with regard to inquiry contemplated on the production of child or receipt of the report under Section 32. It was, therefore, submitted that as per the provisions of the Act, the petitioner cannot retain the custody of the child, nor the committee can hand over the custody of the child to the petitioner. She further submitted that by order dated 30.10.2019, the custody of the child was handed over to the petitioner on various terms and conditions stipulated therein only for a limited – temporary period of 10 days. It is also stipulated in the said order that on completion of 10 days, the custody of the girl child to be handed over to the respondent no.2. However, the petitioner did not obey the order, and therefore, the criminal case is filed by the respondent no.2 against the petitioner
Decision of the Court
It is not in dispute that the girl child is in custody of the petitioner since 09.10.2019 i.e. after a day on which the girl child was found near the Deesa Railway Station in the order abandoned condition and the Petitioner no.1 taking her care for last one and half months. It is also not in dispute that the Respondent no.2 has passed order dated 30.10.2019 to hand over custody of girl child to the petitioner to take care for a temporary period of 10 days with a view to providing medical treatment to the child. Taking into consideration the provisions of the Act which is benevolent in nature to provide welfare and to take care of abandoned child, it will be in the interest of welfare of child to continue the custody of the girl child with petitioner as the Respondent no. 2 has already passed the order to give temporary custody of child to the petitioner for a period of 10 days. If the said order is continued till the application of the petitioner is decided by the Respondent no.2 as to whether such child can be given in adoption to the petitioner, it will be for the welfare of the child to continue her custody under the care of the petitioner.
[googlepdf url=”https://libertatem.in/wp-content/uploads/2019/11/SCA200572019_GJHC240722732019_2_22112019.pdf” download=”Download Judgement PDF” width=”100%” height=”900″]
For more Courtroom Updates, check out our Courtroom Page