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GUJARAT HIGH COURT
Abhilasha Kumari and B.N. Karia, J.
Dharmendrasingh Ramsevkar Rajput and Anr. —Applicants
versus
State of Gujarat and Ors. —Respondents
Special Criminal Application (Habeas Corpus) No.6395 of 2017
Decided on 15.12.2017
Counsel for the Parties:
For the Applicant No.1 and 2:Mr. Nasir Saiyed, Advocate
For the Applicant No.1 and 2:Mrs. Mumtaz Saiyed, Advocate
For the Respondent No.4 and 5:Mr. Prakash G. Pandya, Advocate
For the Respondent No.1: Mr. Hardik Soni, Addl. Public Prosecutor
For the Respondent No.2 and 3: Rule Served by DS
IMPORTANT POINT
It is not only source of income or standard of living that is of prime importance in the matter of custody of child where the supreme consideration would be the overall welfare of the child.
Headnote:Child Custody—Habeas Corpus Petition by adoptive parents-petitioners seeking custody of 10 year old girl child who was given in adoption to them by her biological parents-respondents No.4 and 5 when child was 14 months old—Respondents No.4 and 5 approached Child Helpline alleging that child was being maltreated by petitioners and child was taken from house of petitioner and by order of Child Welfare Committee passed u/s 33 of Juvenile Justice (Care & Protection of Children) Act was sent to Children Home for girls—Child’s welfare was paramount consideration as compared to conflicting claims of adoptive and natural parents—Principal District Judge submitted report and opined that if child’s custody was handed over to petitioners, her safety would be endangered—Child during interaction was found exceptionally bright and talented—District Judge in her report opined that respondents No.4 and 5 might not give academic career to the child—Welfare of child demanded that custody may not be given to either set of parents and child continued to stay at Children’s Home to Girls to be in company of other girls and pursue her studies while in a sheltered and disciplined life.
(Paras 17, 19, 21, 22, 30 to 37)
Result: Petition disposed of.
JUDGMENT (ORAL)
Abhilasha Kumari, J.—This petition revolves around the predicament of an innocent ten year old girl, Laxmi, who, in spite of having two sets of parents – biological and adoptive–finds herself in the Children’s Home for Girls. The petition brings to the fore the unseemly tussle between the two sets of parents for Laxmi’s custody, which question looms large before the Court. All considerations apart, the Court is conscious that its paramount duty is to ensure Laxmi’s welfare.
2. Now, the facts:
3. This Habeas Corpus petition under Article 226 of the Constitution of India has been preferred by the petitioners, who claim to be Laxmi’s adoptive parents. A prayer is made to issue an appropriate Writ, order or direction upon respondents Nos.2 and 3, Police Inspector, Puna Police Station, Surat and Administrator/Manager, Children’s Observation Home, Ramnagar, Surat, to produce the corpus of Laxmi before the Court. It is further prayed that the Court may ascertain Laxmi’s wishes, order her release from the alleged illegal custody of respondent No.3, and hand over her custody to the petitioners.
4. The background facts, as stated in the petition are to the effect that, the petitioners have two sons but yearned for a daughter. Respondents Nos.4 and 5 herein, Laxmi’s biological parents, lived in the same locality and were on good terms with the petitioners. Respondents Nos.4 and 5 were not in a position to take care of Laxmi. The petitioners offered to adopt her and respondents Nos.4 and 5 agreed to give their daughter in adoption to the petitioners. An Adoption Deed was prepared on 18.08.2008, which was signed by the petitioners and respondents Nos.4 and 5 and got notarized. The Adoption Deed is produced on record as Annexure-A. Laxmi was adopted by the petitioners when she was about fourteen months old. Since then, it is averred, the petitioners have brought her up with utmost love and affection. They got Laxmi admitted to a school and were providing her with a standard of education as per their capacity. According to the petitioners, they have been fulfilling all their responsibilities as parents by giving Laxmi a proper upbringing. Laxmi’s Report Card for Standard-III is annexed as Annexure-B to the petition.
5. It is stated that suddenly, in the afternoon of 27.06.2017, respondents Nos.4 and 5, along with an unknown girl, came to the house of the petitioners and demanded that Laxmi be handed over to them. T he petitioners refused, explaining that they had adopted the child legally by executing an Adoption Deed by mutual consent. However, respondents Nos.4 and 5 got infuriated and started abusing petitioner No.2 (adoptive mother), threatening her of dire consequences such as implication in a false case. Laxmi was taken from t he house of the petitioners and lodged in the Children’s Home for Girls. Aggrieved thereby, the petitioners have approached this Court.
6. Certain relevant facts have not been narrated in the petition, but emerge from the papers of the investigation. They would be necessary to complete the narration and fill in the gaps. A Child Helpline, run by an NGO named Pratham, under the aegis of the Ministry of Women and Child Development, Government of India, received a telephone call on 28.06.2017, from one Shri Pratik Sharma, Advocate, on behalf of respondents Nos.4 and 5, Laxmi’s natural parents. The Child Helpline was informed that Laxmi was allegedly being ill-treated by her adoptive parents. On the basis of this telephone call, Laxmi was taken from the house of the petitioners with the aid of the Police and produced before the Child Welfare Committee, Surat. The Child Welfare Committee made an order of Short Term Stay under Section 33(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (“the J.J. Act”, for short), sending Laxmi to the Children’s Home for Girls. This order was passed pending the report of the inquiry required to be held in the prescribed manner under Section 32 of t
