Merely Executing Notarized Document Purporting To Adoption Deed Does Not Give A Right To Child Custody: Bombay High Court

A Bench of Justices SS Shinde and Manish Pitale ruled,

"We are of the opinion that 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."

The petitioner, who claimed to be the child's adoptive parents, approached the High Court seeking a writ of habeas corpus after the child was taken away by the Child Welfare Committee (CWC).

They asserted that they adopted the child after two weeks of her birth.

The CWC in its turn submitted in Court that it received a communication from Childline informing that a woman was unwilling to take care of her newly born child and she had decided to give the child up for adoption or keep the child in an ashram. Childline intimated the CWC that there was a possibility of the girlchild being sold by the biological mother.

By the time the CWC took cognizance of the matter and directed the biological mother to appear before the Committee, the woman had already handed the child over to the petitioners by a notarised adoption deed, it was found.

On investigation by Childline, it was revealed that the child was given away to the petitioners in exchange for Rs 20000.

Thereafter, FIRs were filed against the first petitioner and the biological mother citing their refusal to respond to the CWC's summons.

Following the filing of FIRs, both the petitioners and the biological mother applied for custody.

The biological mother, in a Social Investigation Report, averred that she had given her child to the petitioners out of goodwill and that they had given her financial help and groceries. The Report contained a finding that the mother may be suffering from mental illness.

After the applications were rejected, the biological mother filed a fresh application for custody, with the first petitioner stating he had no objection to allowing custody to the biological mother. A writ petition that was filed by the petitioners in the interim was also withdrawn.

Following this, a fresh writ petition was filed seeking the custody of the child, who was by this time in the care of the CWC and in the custody of an adoption agency.

Arguments in Court

Senior Advocate Raja Thakare averred that the notarised document relied on by the petitioners to establish their claim on the child, was a valid document of adoption in terms of the Hindu Adoption and Maintenance Act, 1956 (Hindu Adoption Act).

Since it was valid under the Hindu Adoption Act, the Juvenile Justice Act's provisions would not apply in terms of Section 56(3) of the Juvenile Justice Act.

It was specifically stated that Section 81 of the Act, which penalises the buying or selling of a child for any purpose, could not be applied to the facts at hand.

On the other hand, Advocate Karansingh B Rajput asserted that the CWC was only performing its statutory duty when taking custody of the child.

What the Court found

After examining the notarised deed the Court found that the document nowhere indicated that the requirements of the Hindu Adoption Act pertaining to a valid adoption were complied with in letter and spirit.

Recording a finding that the document was executed only after the filing of the FIR.

"Although respondent No.3 claimed that the amount was

given to her for her treatment and groceries, the material on record indicates that the child was given away to the petitioners in exchange of money", the Court found.

Therefore, the Court found the CWC had acted appropriately, in terms of the mandate of the Juvenile Justice Act and in pursuance of the legislation.

"Respondent No.2-CWC has acted in terms of the mandate of the Juvenile Justice Act and in pursuance of the objects and reasons for enactment of the said legislation, which is to ensure proper care, protection, development, treatment and social re-integration of such children by keeping the best interest of the children in mind", it was stated.

Additionally, after the Court recorded a finding that the petitioners did not pursue their remedies under the Juvenile Justice Act, the Court dismissed the petition.

The Court recorded its appreciation for the sincere efforts taken by Mr. Karansingh B. Rajput, who was appointed by the Court to represent the CWC.

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