Mumbai couple moves HC to get ‘adopted’ baby from CWC

MUMBAI: A city couple on Friday alleged the child welfare committee (CWC) took away their “adopted” infant and kept her in “illegal detention”. They have sought orders to be reunited with the baby, now aged two.

The childless couple said they had adopted a newborn from a single woman under provisions of Hindu Adoption and Maintenance Act (HAMA) through an adoption deed in January 2019. That June, CWC filed a criminal case against them and “immediately took” the child from their legal custody, they alleged. Currently, the child is being looked after by a trust that runs a “specialised adoption agency”, said their petition.

CWC is a statutory body set up under the Juvenile Justice (Care and Protection ) Act as an authority to deal with children in care of protection. The petition alleged CWC has acted “arbitrarily” and “high-handedly” out of “mere ignorance of law” six months after the child was “adopted”. Parting the child has deprived her of her fundamental right to life as well as “love and affection of the adoptive parents,’’ said the couple.

The couple filed a habeas corpus petition (to seek production of somebody from illegal detention or custody) through advocate Siddharth Jagushte and senior counsel Raja Thakare. The advocates mentioned it before a Bombay high court bench of Justices S S Shinde and Manish Pitale at a virtual hearing on Friday. The biological mother, represented by advocate Tusshar Nirbhavane, used to work as a domestic help and had entered into the ‘adoption deed’’, is the contention. The couple said they performed a handing over ceremony for the child.

Thakare said two important legal questions are involved, including whether adoption under HAMA can be “trifled with’’ when JJ Act recognises it and if Section 80 can be invoked when a valid adoption deed exists.

The bench issued a notice to CWC, Mumbai suburban district, and posted the matter to February 5 for detailed hearing.

The couple sought custody and also interim orders for daily access to the two-year-old.

The petition says applications filed by both the “adoptive father” and the biological mother for access and custody were rejected by CWC, thus the child spent the pandemic in a centre.

In June 2019, CWC had registered a criminal case at Amboli police station under Section 80 of JJ Act. It alleged failure to follow a proper adoption procedure under the Act and that the couple offered Rs 20,000 to the mother for medical expenses. The petitioners said the mother who also had a “medical history’’ suggested they who had cared and financially assisted with childbirth may adopt the child. CWC, though, said the adoption deed is illegal and not registered. After the FIR, CWC took custody of the child, said the petition.

Thakare said the questions raised are whether, given section 56 (3) of JJ Act, can legal rights conferred by HAMA be trifled with especially “to the detriment of the best interests and fundamental rights of an adoptive minor thus depriving her from love, affection, care and comfort of the adoptive parents.’’

Section 56(3) of JJ Act categorically says its provisions would not apply to adoption under HAMA. Thakare said there are several Supreme Court Judgements to back the petitioners’ case.

Section 80 of JJ Act provides that “if any person or organization offers, gives or receives any orphan, abandoned or surrendered child, for adoption without following provisions or procedure under the Act’’ can be punished for up to three years’ imprisonment or fine of Rs 1 lakh or both.

The FIR is “vague’’ to “falsely implicate’’ them and discloses no offence, said the petition.

The other question said the petition is whether provisions of section 80 of the JJ Act can be invoked by the CWC when there exists “a valid adoption deed entered into between the biological mother and legally fit adoptive parents”?