Holy Cross Home For Babies By ... vs State Of Maharashtra Thr. ... on 29 August, 2017 Bench: V.M. Deshpande

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL REVISION APPLICATION NO.95 OF 2017

1. Holy Cross Home for Babies

By its Superintendent Sister Terese Jose

Aged about 63 years, R/o C/o Holy Cross

Convent, Amravati-Camp, Amravati,

Taluka and District Amravati.

2. Mr. Mukund s/o Ashok Wagh,

Aged about 43 years, Occupation Business

R/o 1676/18/C Saptashrungi Nagar

Ugaon Road at Post Niphad

Taluka Niphad, District Nashik. ..... Applicants.

:: VERSUS ::

State of Maharashtra,

Through Chairman,

Child Welfare Committee

Amravati, District Amravati ..... Non-applicant.

================================================================

Shri Nidhi Singhvi, Adv. h/f Shri A.S. Kilor, Counsel for the

applicants.

Shri R.S. Nayak, Addl.P.P. for the State.

================================================================

CORAM : V.M. DESHPANDE, J.

DATE : AUGUST 29, 2017.

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ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel for the respective

parties.

2. A Miscellaneous Civil Application No.182 of 2016

was filed in the Court of learned District Judge at Amravati.

The said application was under Section 58(3) read with

Sections 56 and 57 of the Juvenile Justice (Care and

Protection of Children) Act, 2015 for permission to adopt a

child. The said application is rejected by learned District

Judge-3 at Amravati on 17.6.2017 and applicant No.2 was

directed to hand over custody of child 'Kabir' to applicant

No.1 within a period of one month. Hence, both the applicants

approached to this Court in this criminal revision application.

3. Applicant No.1 is a Charitable Institute looking

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after destitute and orphans. Applicant No.2 was intending to

adopt a child. Therefore, applicant Nos.1 and 2 jointly filed

an application for obtaining necessary permission to adopt a

child as contemplated under Section 58(3) read with Sections

56 and 57 of the Juvenile Justice (Care and Protection of

Children) Act, 2015.

4. On 15.8.2016 a male child 'Kabir' was declared free

for adoption by the Child Welfare Committee at Amravati.

5. Learned Judge of the Court below found fault with

order dated 15.8.2016, declaring the said child legally free for

adoption, passed by the Child Welfare Committee at Amravati

since according to the reasoning, the meeting was held on

5.8.2016 whereas the Members of the Committee have signed

the same on 15.8.2016. Further, the Chairperson of the

Committee has not put date under his signature. Thus,

according to learned Judge of the Court below, it creates a

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doubt about holding of meeting dated 5.8.2016 and order

dated 15.8.2016 declaring child 'Kabir' legally free for

adoption.

6. This Court, while issuing notice in the matter,

granted the Stay of handing over custody of the minor child to

applicant No.1 by applicant No.2.

7. Chairperson of the Child Welfare Committee at

Amravati, Dr. Dilipkumar Haribhau Kale has filed his detailed

reply.

8. As per the said reply, on 11.1.2016 an unmarried

mother Sangita Chaudhari approached to Ish Daya Shishu

Bhavan, Missionaries of Charity at Amravati with her child

'Kabir', who was born to her on 4.1.2016, with an intention to

abandon the said child. As per the practice, the said

Missionaries of Charity directed the said unmarried mother to

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approach to the Child Welfare Committee at Amravati for

obtaining a consent since without consent of the Child

Welfare Committee, the said Missionaries do not keep custody

of any child. It is further stated in the reply that the Child

Welfare Committee complied all legal formalities and obtained

a bond from unmarried mother Sangita Chaudhari in respect

of custody of child 'Kabir' to Ish Daya Shishu Bhavan,

Missionaries of Charity at Amravati on 11.1.2016.

9. The reply further states that subsequently, Ish

Daya Shishu Bhavan, Missionaries of Charity at Amravati

stopped activities of keeping custody of abandoned child.

Therefore, the Child Welfare Committee handed over custody

of child 'Kabir' on 5.8.2016 to applicant No.1 after completing

all procedural formalities by the Child Welfare Committee at

Amravati.

10. On 15.8.2016, the Child Welfare Committee at

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Amravati passed an order under Rule 33(3)(c) of the Rules

made under the Act declaring said child 'Kabir' free for

adoption. The Chairman given an explanation that due to

mistake, only the date could not be mentioned. As per the

reply, it is clear that order dated 5.8.2016 is a distinct than

order dated 15.8.2016. Vide order dated 5.8.2016, custody of

child 'Kabir' was transferred by the Child Welfare Committee

under Rule 38(1) of the Rules from Ish Daya Shishu Bhavan,

Missionaries of Charity at Amravati in favour applicant No.1

whereas order dated 15.8.2016 shows that male boy was legally

free for adoption.

11. Even, the impugned order shows that the claim of

applicant No.2 for taking a boy in adoption was found to be a

genuine by learned District Judge herself. Further, the need

of applicant No.1 was also found to be a genuine and logical.

In that view of the matter and in view of the explanation

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given by the Chairperson of the Child Welfare Committee at

Amravati on oath that only due to mistake, date 15.8.2016

remained to be mentioned. By taking hyper technical view,

wisdom of the Child Welfare Committee cannot be questioned.

12. In that view of the matter and in view of the fact

that applicant No.2 is found to be genuinely adopting a male

child, in my view, the impugned order is required to be set

aside. Hence, I pass the following order:

ORDER

i) The criminal revision application is allowed.

ii) Order passed by learned District Judge-3 at Amravati dated 17.6.2017 in Miscellaneous Civil Application No.182 of 2016 is hereby quashed and set aside.

iii) Order passed by the Child Welfare Committee .....8/-

Judgment revn95.17 18 at Amravati dated 15.8.2016 is upheld. Rule is made absolute in the aforesaid terms. No order as to costs.

JUDGE !! BRW !! ...../-

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