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

The Bombay High Court recently refused permission to a couple to take custody over a twoyear-old child on the strength of a "notarised adoption deed".

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 girlchild."

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 led against the rst petitioner and the biological mother citing their

refusal to respond to the CWC's summons.

Following the ling 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 nancial help and groceries. The

Report contained a nding that the mother may be suffering from mental illness.

After the applications were rejected, the biological mother led a fresh application for custody,

with the rst petitioner stating he had no objection to allowing custody to the biological mother.

A writ petition that was led by the petitioners in the interim was also withdrawn.

Following this, a fresh writ petition was led 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 specically 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 nding that the document was executed only after the ling 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 nding 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

C