Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARATI DANGRE, MANJUSHA DESHPANDE, JJ.
Leelendra Deju Shetty & Anr. - Petitioners
Versus
The State of Maharashtra & Ors. - Respondents
Criminal Writ Petition No. 2487 of 2024 With Criminal Writ Petition (ST) Nos. 11398, 10984 of 2024
Decided On : 22-07-2024

Advocates Appeared:
For the Petitioner: Mr. Yash Tiwari with Ms. Heena Mistry, Mr. Saurabh Mehta with Mr. Arshil Shah, Mr. Rashesh Shah and Ms. Pratiksha Koshe.
For the Respondent: Ms. Ankita Singhania with Mr. Ranjit Shetty, Ms. Risha Alva and Mr. Arjun Amin i/b Argus Partners, Mr. S.V. Gavand, A.P.P., Ms. M.M. Deshmukh, A.P.P., API Mr. Dinesh Shelar attached to DCB-CID, Unit-II, Mumbai.

The court ruled that valid adoption requires adherence to statutory procedures, and the custody of children cannot be transferred without following legal protocols, emphasizing the importance of the welfare of the child.

Headnote:(A) Indian Penal Code - Sections 370, 34 - Juvenile Justice (Care and Protection of Children) Act, 2015 - Sections 75, 81, 83 - Writ of habeas corpus - Petitioners claimed custody of children allegedly adopted without following legal procedures - Court examined the legality of custody and adoption processes - The court found that the children were not abandoned or orphaned, thus the Child Welfare Committee's actions were illegal. (Paras 1, 4, 28)

(B) Writ of habeas corpus - Nature and scope - The court emphasized that the writ is an extraordinary remedy, maintainable only when the detention of a minor is illegal and without authority of law. (Paras 7, 8)

(C) Adoption procedures - The court highlighted that valid adoption requires adherence to statutory procedures, which were not followed in the present cases. (Paras 13, 28)

Facts of the case:
The petitions arose from a police FIR alleging illegal sale of children. Petitioners claimed to have adopted children from biological parents but lacked valid adoption deeds. The children were removed from their custody by the Child Welfare Committee and placed in a care institution.

Findings of Court:
The court ruled that the custody of the children was handed over illegally by the Child Welfare Committee, as the children did not fall under the definitions of 'abandoned' or 'orphan' as per the Juvenile Justice Act. The court ordered the return of the children to the Petitioners.

Issues: The main issues addressed were whether the Petitioners had a legal right to custody of the children and the legality of the Child Welfare Committee's actions in removing the children from their custody.

Ratio Decidendi: The court concluded that the Petitioners were not biological parents and had not followed legal adoption procedures, but since the biological parents did not seek custody, the children should be returned to the Petitioners. The court emphasized the importance of adhering to statutory procedures for adoption.

Result: The petitions were allowed, directing the Child Welfare Committee and Baal Asha Trust to hand over the custody of the children to the respective Petitioners within 24 hours.

JUDGMENT :

Bharati Dangre, J.

1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally.

2. On 27/04/2024, C.R.No.206 of 2024 was registered with Vikhroli Police Station, which invoked Section 370 read with Section 34 of the Indian Penal Code (for short, “IPC”) alongwith Sections 75, 81 and 83 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, “Act of 2015”).

The above C.R. came to be registered at the instance of one Sunil Tukaram Harad, Police Constable, who reported that information was received in the police station from a secret informant that one lady, by name Kanta Pednekar, aged 39 years, resident of Ashirwad Chawl, Bhimdongari, Nalasopara, has sold her son through one Sheetal Ware unauthorisedly, without complying the legal provisions in that regard.

Upon the information received, the police team proceeded in search of Sheetal Ware and upon her search, when inquiries were made with her, she disclosed that she has sold her son to one Sanjay Ganpat Pawar and Savita Sanjay Pawar, residents of Ratnagiri on 13/12/2022 for a sum of Rs.2,00,000/- through an agent, Sharad Maruti Devar and Dr. Sanjay Khandare, Nileshwari Clinic, Diva, Thane with the help of one Vandana Amit Pawar. She also disclosed that she has received a sum of Rs.20,000/- of the amount agreed. On her information, Sharad Devar was also traced out and he disclosed that he was working as agent of Dhanshree Fertility Agency Doner and, therefore, came in contact with Dr. Sanjay Khandare and through him, he came to now that Vandana was in search of a boy for her relative and, therefore, he completed the transaction of selling the boy to the relatives of Vandana, who were residents of Ratnagiri for which, he received Rs.50,000/-. Even Vandana was traced out and she confirmed about the transaction.

In the wake of the aforesaid narration, for the sale of Kanta Pednekar’s one year old child through Sharad Maruti Devar, Dr. Sanjay Khandare, Vandana and Sheetal Ware for a sum of Rs.2,00,000/-, without following any procedure to Sanjay Ganpat Pawar and Savita Sanjay Pawar, and since the boy was found in their custody, the F.I.R. was registered.

3. The three Petitions filed before us arise out of the above C.R. and the Petitioners before us are the persons, who claim to be either guardian of the child/infant or they claim to be adopted parents.

As far as Cri.Writ Petition No.2487 of 2024 is concerned, it is filed by one Leelendra Deju Shetty and Smt. Shashiprabha Leelendra Shetty, who claim to have adopted a two and half years old child, Kartika by an Adoption Deed, which was notarized on 09/03/2023, from her biological mother Karishma Shinde. These Petitioners have already filed proceedings before the competent court under the Hindu Adoptions and Maintenance Act, 1956 and the Petition is accompanied by an Adoption Deed dated 09/03/2023, signed by the Shettys and the biological mother of the child.

Writ Petition (St) No.11398 of 2024 is filed by Azharuddin Naushad Shaikh and his wife, who were blessed with baby girl in 2019, but since they desired to have a second child and on account of health complications suffered by the mother, they came in contact with the biological mother of Master Ayaan, who was available for adoption and by reimbursing the hospital delivery and medical charges, they brought the infant, who was barely six days old to their home and nurtured him as their own son. They claim that the child is in their custody, being adopted from the biological mother, but no Adoption Deed is placed on record.

The third Petition, being Cri.Writ Petition (at) No.10984 of 2024 is filed by NVS Rajesh, resident of Hyderabad and one Pooja Laxmi Kameshwar, a married couple and, since, Petitioner No.2 suffered three miscarriages through the period of four years, in the month of September 2023, the maternal aunt of Petitioner No.2 introduced them to the parents of infant girl, as being her biological parents, who was ready to give