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2013 Supreme(Bom) 1489
In the High Court of Bombay at Aurangabad
R.M. BORDE & R.V. GHUGE, JJ.
Snehalaya’s Snehankur Adoption Centre, through its Authorized Signatory Ajay Ananda Wabale
Versus
The Child Welfare Committee & Another
Writ Petition Nos. 5864 of 2013 & 5865 of 2013
Decided on : 06-08-2013
For the Petitioner:Ms. Shirin Merchant i/by Kedar P. Chaware, Advocates.
For the Respondents: D.R. Korde, S.K. Kadam, A.G.P.
Headnote:Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 41 - Juvenile Justice (Care and Protection of Children) Rules, 2002, Rule 78(8) - Grant of declaration that child is free for adoption.
There is no role of Police, dealing with sexual violence, in matter of grant of declaration by Committee that children are free for adoption. - Merely because the children are born out of sexual violence to minor unwed mothers, it does not mandate calling of report from the police as to whether they would need the children for investigation purpose or for calling upon the petitioner to produce no objection certificate from the competent Court dealing with trial of offence.
It must be understood that the police are concerned with the investigation of crime which is in the nature of sexual violence meted to a minor girl; as well the trial Court, dealing with the criminal trial, is concerned with the offence of sexual violence alleged against the accused.
While considering the applications, tendered by petitioner- Adoption Agency seeking a declaration from the Committee that the children are free for adoption, those children, who are born to unwed minor mother out of sexual violence, cannot be treated as "property" involved in the crime. There is no role of the police or the Court dealing with criminal trial relating to sexual violence, in the matter of grant of declaration by the Committee that the children are free for adoption.
Certainly. Based on the provided legal document, here are the key points:
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The primary focus of the case is the procedure for declaring children born out of sexual violence, particularly to minor unwed mothers, as free for adoption by the Child Welfare Committee (CWC) (!) (!) .
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Police involvement is not required or relevant in the process of declaring children as free for adoption. The police are concerned solely with investigating the crime of sexual violence, not with the child's declaration for adoption purposes (!) (!) .
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Children born to minor unwed mothers due to sexual violence cannot be treated as property involved in the crime, and the process of declaring them free for adoption is separate from criminal proceedings (!) .
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The procedure adopted by the Child Welfare Committee in these cases—calling for police reports and Court No Objection Certificates—was found to be improper and not in accordance with the law or the rules governing adoption (!) (!) .
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The relevant provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Maharashtra Juvenile Justice Rules, 2002, establish that the declaration of a child as free for adoption must be done within specified timelines and through a process that includes enquiry, notification, and certification by the Committee, without unnecessary delays or extraneous procedures (!) (!) (!) (!) .
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For surrendered children, the process involves a surrender deed, a reconsideration period of sixty days, and a declaration by the Child Welfare Committee that the child is legally free for adoption, following proper investigation and compliance with guidelines (!) (!) (!) (!) (!) .
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The Committee's role is limited to issuing a declaration that the child is free for adoption, after which the Court is responsible for passing the order of adoption, considering relevant guidelines and conditions (!) .
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The Court emphasized that the process for declaring children free for adoption must be expedited, and the orders passed by the concerned Committee should be clear, lawful, and in accordance with the rules. The orders dated 08.07.2013 were quashed for procedural flaws (!) (!) .
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The Court directed the Child Welfare Committee to process the applications for declaration of children as free for adoption quickly, preferably before a specific date, and to adhere strictly to the prescribed procedures (!) .
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The Court also directed the Registrar (Judicial) to circulate this judgment to all Child Welfare Committees and Juvenile Justice Boards in the state to ensure uniform compliance with the procedures (!) .
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The intervention by the Court was deemed necessary to ensure that the rights of the children, including their right to life, rehabilitation, and family life, are protected in accordance with constitutional principles (!) .
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The Court reaffirmed that the process of declaring children free for adoption is separate from criminal proceedings and should not be delayed or complicated by issues related to the criminal trial of sexual violence (!) (!) .
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Overall, the judgment underscores the importance of a child-friendly, sensitive, and lawful process for adoption, especially for children born out of sensitive circumstances such as sexual violence, emphasizing adherence to the relevant laws and guidelines (!) (!) .
Would you like a summary or specific legal advice based on these points?
Oral Judgment:
R.M. Borde, J.
“And whereas we believe that by respecting the child, society is respecting itself.
Now, therefore, in accordance with our pledge in the National Agenda of Governance, the following National Charter for Children, 2003 is announced.”
1. The Government of India, while adopting National Charter for Children, reiterated its commitment to the cause of the children in order to see that no child remains hungry, illiterate or sick.
2. Clause (c) of Section 17 of the National Charter for Children, 2003, provides that the State shall undertake measures to ensure that children without families are either placed for adoption, preferably intracountry adoption, or foster care or any other family substitute services.
Clause (d) of Section 17 reads thus:
The State shall ensure that appropriate rules with respect to the implementation of such services are drafted in a manner that are in the best interest of the child and that regulatory bodies are set up to ensure the strict enforcement of these rules.
Section 22 provides for Ensuring child friendly procedures, which reads thus:
22 Ensuring child friendly procedures: All matters and procedures relating to children, viz., judicial administrative, educational or social, should be child friendly. All procedures laid down under the juvenile justice system for children in conflict with law and for children in need of special care and protection shall also be child friendly.
3. The facts disclosing presentation of instant writ petitions lead us to believe that the object pronounced by the Government of India while declaring National Charter for Children, 2003, and the provisions contained in Juvenile Justice (Care and Protection of Children) Act, 2000 and the Maharashtra Juvenile Justice (Care and Protection of Children) Rules, framed by the State of Maharashtra, are not in its letter and spirit adhered to. We need to exhibit more sensitivity in the matter of protection of children.
Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
4. Both these petitions are presented seeking directions to Respondent No.1 the Child Welfare Committee, Government Remand Home, Ahmednagar, that male children under the protection of Petitioner-Adoption agency be declared to be free for adoption. A direction is also sought to Respondent No.1Committee and all the concerned authorities to act expeditiously in the matter of adoption of infant children and to take decision in such matters at the earliest.
5. Petitioner in both these petitions is Adoption Agency working under Snehalaya, a Public Charity Trust registered under the provisions of Bombay Public Trusts Act, 1950. Snehalaya, according to the petitioner, runs 16 projects for unprivileged women and children. It is stated that since 2005, hundreds of children have been rescued, rehabilitated and placed in good homes in adoption by the petitioner-Adoption Agency.
6. Writ Petition No.5864/2013 relates to a male child born on 08.11.2012 to a minor girl aged about 16 years as a result of repeated acts of sexual violence. The minor girl aged about 16 years was repeatedly raped by a man while she was working in the field. Her father is handicapped and thus remains at home while her mother and brother too work at the field. By the time, her parents realized that she was pregnant, the minor girl was in her advanced stage of pregnancy. Said unwed minor girl delivered male child, named subsequently as Raghav, on 08.11.2012. Since the unwed minor mother and her parents were unable to take care of the child due to social stigma, they relinquished the child in favour of Petitioner-Adoption Agency on 09.11.2012 when the child was just one day old. The relinquishment affidavit has been sworn on behalf of minor mother on 16.11.2012, however, in order to protect identity of the unwed mother, who is a victim of sexual violence, relevant information is not disclosed in the petition. The mino
