Point of Law: Scope of Juvenile Justice Act, and inapplicability of the same to the adoptions made under the HAMA Act were noticed and elaborately dealt by a Division Bench of Kerala High Court and the Punjab and Haryana High Court

ORDER :

1. The petitioners assail the action of 2nd respondent-Child Development Project Officer (CDPO) in taking forcible custody of the child and sending to Shishu Gruha, Sangareddy as illegal and arbitrary, and consequently seek a direction to release the child to the care and custody of the petitioners.

2. Brief averments in the writ affidavit are that the petitioners are husband and wife and they have no children; that they got registered with Central Adoption Resource Authority (CARA) for adopting a child; that through their in-laws who live in Kamaram village, they got acquainted with respondents 5 and 6; that respondents 5 and 6 have two sons and were expecting another child, however, due to poverty, they expressed their inability to raise one more child and therefore respondents 5 and 6 expressed to offer their third child to the petitioners in adoption so that the child can receive better care; that after the child was born, the petitioners adopted the child by performing the rituals of “Datta Homam”; that even as per the Hindu Adoptions and Maintenance Act, 1956 which governs the case on hand, the petitioners are entitled to adopt the child in question; that on account of some misinformation spread by some people in the Thanda (Tribal area), the 2nd respondent had mistakenly came to the conclusion that respondents 5 and 6 have sold the child for rupees three lakhs to the petitioners; that when the petitioners took the child for vaccination, the 2nd respondent took the child and sent to Shishu Gruha, Sangareddy, on the ground that the respondents 5 and 6 have illegally sold the child to the petitioners and that the petitioners have not followed the due process for adopting the child; that the action of 2nd respondent in taking away the child and keeping the child with the custody of Shishu Gruha, Sangareddy, is illegal and arbitrary.

3. On notice being ordered, the 2nd respondent-CDPO filed counter affidavit on behalf of respondent Nos.2, 5 and 7. The sum and substance of the counter affidavit is that respondent Nos.5 and 6 were blessed with a male child on 19.10.2019; that the officials received information that respondents 5 and 6 have sold the child for money to the petitioner; that the officials went and counseled the respondents 5 and 6 and educated them about the need of mother’s milk and love to the child and instructed to keep the child with respondents 5 and 6 only to ensure maternal care; that when the Anganwadi staff directed the respondents 5 and 6 to produce the child for vaccination on 28.10.2019 and on 05.11.2019, they gave incoherent replies; that the ICDS staff went to the Thanda and enquired and came to know that respondents 5 and 6, being poor, sold away the child to the petitioners through a middleman for Rs.3,00,000/-; that the ICDS staff rescued the child and admitted in Shishu Gruha, Sangareddy, on 28.11.2019, and an FIR also came to be registered on 29.11.2019 against respondents 5 and 6 under the Juvenile Justice Act; that respondents 5 and 6 decided to surrender the child to the Chairperson, Child Welfare Committee, Sangareddy; that a Deed of Surrender dated 07.01.2020 was executed by respondents 5 and 6; that due to alleged threats from the middleman, the petitioners left the place and their whereabouts are not known; that there is a process of registering with CARA and waiting as per seniority list for adopting a child; that the petitioners failed to register themselves with CARA and follow due process for adoption of child and therefore the writ petition is liable to be dismissed.

4. Respondent No.5-Banoth Naresh, who is the biological father of the child, and the husband of respondent No.6, filed counter affidavit stating that they agreed to give the child in adoption to the petitioners as agreed to before delivery; that on 08.11.2019 a function and puja was performed at the house of petitioners in which they had permanently handed over the child to the petitioners in the presence of all the