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2024 Supreme(All) 2162
IN THE HIGH COURT OF ALLAHABAD
Saumitra Dayal Singh, Manjive Shukla, JJ.
Smt. Meena – Petitioner
Versus
State Of U.P. And Others – Respondents
WRIT - C No. - 36406 of 2023
Decided On : 29-1-2024
Advocate Appeared:
For the Petitioner:Vipin Chandra Pal, Yatindra
For the Respondent: C.S.C, Pooja Agarwal
The court prioritized the child's welfare, allowing custody to the petitioner and permitting her to apply for adoption, emphasizing the importance of the bond between the child and the caregiver.
Headnote:(A) Child Welfare Act - Custody and Foster Care - The petitioner challenged the orders of the Child Welfare Committee regarding custody and foster care of a child, asserting that the child had been in her care since infancy. The court emphasized the child's welfare and the importance of maintaining the bond between the child and the petitioner. (Paras 3, 10, 14, 18)
(B) Parens Patriae Jurisdiction - The court exercised its parens patriae jurisdiction, prioritizing the best interests of the child over strict legal adherence, allowing the petitioner to regain custody pending adoption application. (Paras 10, 18)
Facts of the case:
The child was handed over to the petitioner at a few days old and remained in her care until an abduction incident in 2021. The Child Welfare Committee initially restored custody to the petitioner but later disturbed it based on a vague report from the District Probation Officer.
Findings of Court:
The court found that the bond between the petitioner and the child was strong and that the child's welfare was paramount, allowing custody to be restored to the petitioner.
Issues: The main issues included the legality of the Child Welfare Committee's orders and the best interests of the child.
Ratio Decidendi: The court ruled that the child's welfare must take precedence, allowing the petitioner to apply for adoption and restoring custody pending that application.
Result: Writ petition allowed, custody restored to the petitioner.
JUDGMENT :
1. Heard Sri Yatindra and Sri Vipin Chandra Pal, learned counsel for the petitioner and Sri Mukul Tripathi, learned Standing Counsel for the State.
2. Ms. Shruti Teneja holding brief of Ms. Pooja Agarawal, learned counsel for private respondent No. 5 states, in view of the DNA test report of the child and said respondent and his wife not matching, the private respondent has no say in the matter. Ms. Taneja seeks to withdraw from the proceedings. Permission granted.
3. The present writ petition had been filed by the petitioner to assail the order dated 13.12.2021 passed by the Child Welfare Committee, Fatehgarh, Farrukhabad (hereinafter referred to as 'CWC'), whereby custody of the child (X) had been deprived to the petitioner. Further challenge has been raised to the order dated 06.3.2023 passed by the said CWC rejecting the petitioner's application for grant of foster care of X.
4. Facts that are not in dispute may be noted first. The child X is disclosed to have been handed over to the petitioner on 28.11.2014 when it was a few days old by a person belonging to the third gender, namely, Arjun alias Anjali. The petitioner who had four grown up children of her own (three of whom are married and have children) took care of the child without any objection either by any State authority or by any third person till 11.10.2021. On that date, according to the petitioner, X was abducted by the said Arjun alias Anjali. At that stage, the petitioner made an application before the CWC. On such complaint, X was rescued on 21.11.2021. Counseling was offered to the child. A self speaking counseling report of that date reads as below:
5. In such circumstances, the child was returned to the custody of the petitioner on 22.12.2021. While the petitioner may not have applied for formal adoption, it is nobody's case that any further complaint was received either by the CWC or the District Probation Officer with respect to the care being offered by the petitioner to X. Yet, on 20.10.2022, the District Probation Officer submitted the following report to the District Magistrate, Agra with respect to X:
6. Acting on that report, the petitioner has been deprived the custody and care of X. Since then, X is residing at the Rajkiya Balika Grih, a government facility at Agra.
7. Upon the present petition being filed, we passed the below quoted order on 20.11.2023:
"1. Matter pertains to custody of the child.
2. The Child (X) is neither a biological child of the petitioner nor the child has been formally adopted by the petitioner. In fact, it is the own case of the petitioner that the child was given over in her care by a third person on 28th November, 2014, when the child was about a day old. Since then, till 21st November, 2021, the child remained in the custody of the petitioner. At about 7 years of age, the said third person forcibly took away the child from the petitioner leading to certain complaints made by the petitioner. The child was recovered. Relying on the councilling report dated 21st November, 2021, it is further claimed that the child identified the petitioner as her mother and desired to stay in her care.
3. Initially on 13th December, 2021, the child was sent to a government shelter. Later, on 21st December, 2021 the custody of the child was given over to the petitioner upon an order made by the Child Welfare Committee.
4. Now about one year later, another ex parte order came to be passed on 6th March, 2023 by the Child Welfare Committee requiring the custody of the child to be disturbed, while allowing the petitioner to claim right of foster care. The above approach adopted by the Child Welfare Committee does not appear to be in the interest of the child. Even if the foster care was to be allowed to the petitioner, prima facie, there appears no need to disturb the custody of the child, pending such application.
5. It has also been disclosed that the biological parents of the child have not been traced out and no one other than the petitio
