IMPORTANT POINTS
The action of the CWC in directing the police to register a crime and then place the child in the custody of the sixth respondent is erroneous and is in total contravention of the provisions of the HAM Act-The placing of the child with the sixth respondent is arbitrary and unwarranted, and tantamounts to illegal detention.

JUDGMENT :

C.S. DIAS, J.

This writ petition is filed seeking a writ of Habeas Corpus to direct the respondents 4 to 6 to produce a child named 'Thanmayi' born on 11.7.2019, said to be in the illegal detention of the respondents 4 to 6.

2. The thumb nail sketch of the facts in the writ petition is that the petitioners 3 and 4 are the biological parents of the child 'Thanmayi'. The petitioners 3 and 4 (in short 'biological parents'), by Ext P-1, registered adoption deed dated 5.8.2019 of the Malavalli Sub-Registry Office, Mandya, Karnataka, placed the child 'Thanmayi' (in short 'child') in adoption to the petitioners 1 and 2 (adoptive parents). The adoptive parents, though married for many years, are issueless. As the petitioners are all Hindus by religion, they are governed by the provisions of the Hindu Adoption and Maintenance Act, 1956 (for brevity, referred to as 'HAM Act'). The biological parents and the adoptive parents on their own free will and volition decided to give and take the child in adoption. Accordingly, Ext P-1 adoption deed was executed and registered, and the child was handed over by the biological parents to the adoptive parents. Since 5.8.2019, the child was in the care and custody of the adoptive parents.

3. While so, on 9.12.2019, the fifth respondent purportedly on the directions of the fourth respondent – the Child Welfare Committee ('CWC' for short), Kasargod, forcefully took away the child from the adoptive parents and placed the child in the custody of the sixth respondent – a child care institution. The fifth respondent registered Ext P-2 FIR (crime No.458/2019) against the petitioners for an offence punishable under Sec.80 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity, referred to as 'J.J Act').

4. According to the petitioners, the act of the fourth respondent in directing the fifth respondent to register Ext P2 FIR, and in taking away the child from the custody of the adoptive parents is ex facie illegal and without any authority of law. Thus, they have contended that the child is in the unlawful detention of the respondents 4 to 6.

5. When the writ petition came up for hearing on 16.12.2019, the learned Government Pleader took notice for respondents 1 to 5, and notice to the sixth respondent was issued by special messenger. The case was posted on 19.12.2019.

6. On 19.12.2019, when the writ petition was taken up for hearing, the learned Government Pleader handed over the orders passed by the CWC. The CWC found that the child was handed over by the biological parents to the adoptive parents in contravention to Sec.80 of the J.J Act. Hence, the CWC held that Ext P-1 adoption is void and illegal, and therefore, the child is a child in need of care and protection. Accordingly, the child was directed to be placed with the child care institution. All the petitioners were present in Court.

7. We had by our interim order dated 19.12.2019, on prima facie finding the action of the fourth respondent to be wrong and irregular, directed the child to be restored to the adoptive parents.

8. Heard Sri.T.Madhu, the learned counsel for the petitioners and Sri.Ramanand K.B, the learned Government Pleader for respondents 1 to 5. There was no appearance for the sixth respondent.

9. The questions that emerge for consideration in this writ petition are as follows:

(i) Whether P-1 adoption effected as per the provisions of the HAM Act can be said to be in contravention of the J.J Act?

(ii) Whether the J.J Act overrides the HAM Act?

(iii) Whether the child is in the unlawful detention of respondents 4 to 6?

10. As the above questions are intertwined, we are considering them together.

11. It is undisputed that the petitioners 3 and 4 are the biological parents of the child; that the adoptive parents are issueless and that all the petitioners are Hindus by religion.

12. The Hindu Adoption and Maintenance Act, 1956, was enacted for the purpose of amending and codifying the law related to adoption and mai