07 May 2121

The Child Welfare Committee must comply with provision of Juvenile Justice Act, 2015 and Juvenile Justice Rules, 2018 while giving the child in adoption - Bombay High Court

Case : Nitin S/o of Suresh Adukia and Priyanka w/o of Nitin Adukia v. Union of India Writ Petition no. 7836 of 2020

Court : Bombay High Court

Bench : Justice S. V. Gangapurwala and Justice Shrikant D. Kulkarni

Decided on : 07 May 2121

Relevant Statutes

Article 226 of the Indian Constitution

Section 2(14), 35, 52, of Juvenile Justice (Care and Protection of Children) Act, 2015

Rule 25(11), 19(22) and Rule 46(v) of the Maharashtra Juvenile Justice Rules 2018

Regulation 7(10) of Adoption Regulation, 2017

Brief Facts and Procedural History

1. The petitioners are husband and wife who are childless and decided to adopt a child. Further, they were attracted towards the child named Dhanashri @ Reeya but they were having medical problems. They approached Child Welfare Committee and they passed the order and handed over the child who was 3 months old to the petitioner on the basis of the foster Care Agreement on 10. 01.2020. The petitioners registered with Central Adoption Resource Authority on 14.01.2020 but they could not file a petition due to COVID-19 pandemic. 

2. On 10.09.2020, the petitioners received a call from the Child Welfare Committee, Jalna to be present on 29.09.2020, but it was not possible for the petitioner due to the health of the child, so they requested the child to extend the time. On 30.09.2020, they received another notice on WhatsApp directing the petitioner to produce the child before Child Welfare Committee on 05.10.2020.and again it was not possible for the petition to travel from Hyderabad to Jalna due to medical reasons.

3. On 16. 10.2020, the petitioner filed an application before the Child Welfare Committee at Jalna to extend the foster care agreement and also before the Central Adoption Resource Authority and State Adoption Resource Authority to give the child in adoption, but no reply was received. Feeling aggrieved, the petitioners apprehended that the child may be removed from custody. Afterwards, the petitioner moved to the High Court under Article 226 of the Indian Constitution. The father of the child also moved an application for surrender of the child due to the death of the child's mother on 19.10.2019.

The Observations of the Court:

1. The Honourable Bombay High Court observed that as per Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, The Child Welfare Committee should complete the process of enquiry and counselling of the parents who want to surrender the child before Child Welfare Committee There was no home study report, social investigation report and individual care plan of the child as per the Rule 25(11) of Maharashtra Juvenile Justice Rules (2018) and the investigation report which was received was incomplete.

2. The Honourable Bombay High Court observed that there was a violation of Rule 19(22) of the Juvenile Justice Rules 2018. There were no medical reports as per Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Honourable Bombay High Court observed that Child Welfare Committee has violated the many provisions related to attempt for counselling with the parents before the exercise of surrender i.e. Regulation 7(10) of Adoption Regulation, 2017 and Section 35 (3) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

3. The Honourable Bombay High Court held that The Child Welfare Committee has given the custody of the child by foster care agreements which are in violation of Rule 46(v) of the Juvenile Justice Rules (2018). It was observed that the foster parent’s age should be above 35 years of age, and presently in the case the petitioner age was 32 years. In one of the judgments referred i.e. Suo Moto Writ Petition (Civil No 04 of 2020), It was held that the interest of the child should always be protected.

4. The Honourable Bombay High Court held that the Juvenile Justice (Care and Protection of Children) Act, 2015 is a complete code that requires to do a particular thing in a particular way and held that the interest of the child has not been protected as per the definition of child in need of care of protection under Section 2(14) of Juvenile Justice (Care and Protection of Children) Act, 2015.

The Decision Held by the Court

The Writ Petition was dismissed and held that interim custody of the child on the execution of the foster care agreement is a breach of mandatory provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 and Juvenile Justice Rules (2018).

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