The Bombay High Court recently allowed pleas filed by three couples who claimed to be guardian or adopted parents of infants seeking direction to the Child Welfare Committee (CWC) to handover custody of the infants, who, as per police, were unauthorisedly sold to petitioners.
The court held that the children concerned did not fall under the category of ‘children in need of care and protection’ and therefore custody handed over to the CWC cannot be justified and the orders passed by CWC were’ illegal.’
It said the CWC itself does not get any power to deal with these children who are neither ‘abandoned’ nor ‘orphans’.
The court further observed that the petitioners (who were not named accused), though without adhering to procedures under law, were handed over custody of the minor children by their biological mothers and the said biological parents had not sought custody of their children.
A division bench of Justices Bharati H Dangre and Manjusha A Deshpande was hearing habeas corpus pleas by three couples, in connection with FIR registered in April this year by city police, invoking Section 370 (exploitation) of IPC along with provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
As per advocates Heena Mistry and Saurabh Mehta for petitioners, the minor children were placed in their custody by their biological parents or by the person projecting as a biological parent and they continued to be in their care and protection from the date of alleged adoption deeds and formed part and parcel of their families.
However, due to registration of FIR, the children were separated from them despite them showing all their love and affection upon them and being emotionally attached to them. The infants were produced before CWC, which housed them in specialised care centre on the pretext that the manner in which the custody was handed over to the petitioners was not legitimate as it was suspected that there was a child trafficking racket involved and the same was under investigation.
The bench noted that ‘unfortunately, by executing an Adoption Deed, which is either not registered or merely being notarized, definitely does not amount to a valid adoption. It added that the protocols for adoption prescribed by the Central Adoption Resource Authority (CARA), constituted under the Union Ministry of Woman and Child Development had not been adhered to at all.
The bench noted that as the petitioner couples were not arraigned as accused, it was needed to go into the legality of the adoption deeds. “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 modes specified under Section 370 and it is for the purpose of exploitation, as understood in the said section,” the bench noted.
It also observed that invocation of provisions of the 2015 Act was also not justified. Allowing the pleas, the court said it was open to petitioners to adopt the prescribed procedure for continuing the custody of the child with them by validly executing adoption deeds.
