'Supreme Court Guidelines In LK Pandey Case Not Applicable To Adoptions Under Personal Law?' SC To Examine

In a case where a 2-year old girl-child was given in adoption by her biological mother to a couple

by executing a notarised document, without complying with the rigours of the JJ Act, the

Supreme Court on Friday brought the child out of the care of the CWC and entrusted interim

custody to the adoptive parents.

March order of the Bombay High Court refusing permission to the couple to take over custody of

the child on the strength of a "mere notarised document purported to be an adoption deed".

The SLP petitioners, who claim that the girl's biological mother had willingly given the child in

adoption to them, had approached the High Court in a writ of habeas corpus after the child was

taken away by the Child Welfare Committee (CWC) and placed in a Child Care Institution. It was

submitted that the requirements for a valid adoption as per the provisions of the Hindu Adoption

Act were fully satisfied and, therefore, the petitioners were entitled to avail of protection under

Section 56(3) of the JJ Act, which provides that nothing in the Act shall apply to the adoption of

children made under the the Hindu Adoption and Maintenance Act,1956. The petitioners claimed

that the provisions of the JJ Act would not apply to the present case, and hence, the entire

proceedings before the CWC were not in accordance with law and that there was no jurisdiction

with the CWC to have proceeded to take away the custody of the girl-child. However, the High

Court held that the said document nowhere indicates that the adoption is under the provisions of

the Hindu Adoption Act and that nothing was placed on record to indicate that the requirements

of the Hindu Adoption Act pertaining to a valid adoption were complied with. The High Court

ruled that the girl was a 'child in need of care and protection' for the purpose of the JJ Act and

held that the CWC had acted as per the mandate of the law and that the custody of the CWC

cannot be said to be improper or illegal

Before the Supreme Court, the petitioner-couple has submitted, "As both the parties are

governed by Hindu Law, the child was adopted as per the provisions of the Hindu Adoption &

Maintenance Act, 1956. The petitioners adopted the child after complying with the conditions of

giving and taking the child, performing 'Dattak' religious ceremony in presence of witnesses and

executing the deed of adoption which was signed by witnesses and notarised. The High Court

has taken away the custody of the child because the adoption was not in compliance with the

procedural modalities under the JJ Act"

"In Anokha v. State of Rajasthan, this court has held that the L. K. Pandey guidelines do

not apply to private adoptions, where the child is given in adoption by biological

parents", Justice Ramasubramanian said to the senior advocate appearing for the

petitioner-couple

In Laxmi Kant Pandey v. Union of India, the Supreme Court formulated an entire scheme

for regulating inter-country and intra-country adoptions

In Anokha v. State of Rajasthan (2004), it was held that procedural safeguards need not

be stressed in cases of adoption of children living with their biological parents since the

natural parents are the best to judge what the best interest of the child is.

"It is most unfortunate that you don't have the child, neither does the biological mother

have the child, but the child is with a child-care centre. Normally, a child is orphaned by

natural events, but here the child has been orphaned by the order of the court", observed

Justice Gupta.

Senior advocate Salman Khurshid, appearing for the biological mother (Respondent no. 3

in the SLP), advanced that it was in very compelling circumstances that the adoption had

happened and that she had followed whichever guidelines she had been counselled

about- "But if the adoption is found to be erroneous, I want my child. If nothing can be

resolved, then I want my child back", he pleaded.

"So far as you are concerned, the adoption is over. You cannot undo it", said Justice

Gupta

Then the bench proceeded to dictate its order. "Counsel for the petitioners relies upon

Anokha (Smt) Vs. State of Rajasthan and Others (2004) 1 SCC 382 and contended that the

adoption under a personal law will not be governed by guidelines in L.K. Pandey Vs.

Union of India AIR 1984 Supreme Court 469", recorded the bench in the order.

Issuing notice on the SLP, the bench directed that "In the meantime, custody of the child

be handed over to the petitioners"

The bench recorded that the biological mother has no objection if the custody of the child is

being given to the petitioners.

Proceedings before the High Court

The petitioners before the Bombay High Court were seeking a writ of habeas corpus and a

consequent direction that the aforesaid girl- child be handed over by respondent-CWC to them.

The documents placed on record, particularly the documents brought on record by the CWC,

showed that respondent No.3 i.e. the biological mother of the child, immediately after the

childbirth, had expressed her opinion that she was not interested in taking care of the girl-child.

She had contacted an NGO in this regard, which had in turn reported to the CWC. The High

Court felt that the moment there is material to show that the child is in a situation where her

needs are not likely to be taken care of by the parents, such a child is in need of care and

protection as defined under section 2(14)(v) of the Juvenile Justice Act. Consequently, the CWC

had the power and responsibility to take necessary action in the context of the said girl-child,

said the High Court.

The High Court order records that on one visit by the representatives of the NGO (as directed by

the CWC), the fact about respondent No.3 having given away the girl-child to the petitioners

stood revealed. Respondent No.3 stated that she had given away the child and that she had

received amounts from the petitioners. This prima facie appeared to be a case of the child being

sold and, therefore, an FIR came to be registered against petitioner No.1 and respondent No.3

under Section 80 of the Juvenile Justice Act. The girl-child was taken back from the custody of

the petitioners and she was handed over to Vatsalya Trust, which is a recognised Special

Adoptive Agency.

The petitioners based their claim on the alleged voluntarily giving away in adoption of the child

by respondent No.3 and the consequent "Adoption Deed" executed between the parties. A

perusal of the said document showed the High Court that it is merely a notarized document.

"We have considered the aforesaid notarized document, purported to be an Adoption Deed, as

also the contentions raised on behalf of the petitioners by relying upon Section 56(3) of the

Juvenile Justice Act. We find that the said document nowhere indicates that the adoption is

under the provisions of the Hindu Adoption Act. Nothing is sought to be placed on record to

indicate that the requirements of the Hindu Adoption Act pertaining to a valid adoption were

complied with in letter and spirit. It is only after the aforesaid FIR stood registered against

petitioner No.1 that such a stand has been taken, for the first time, before this court", noted the

High Court.

The court concluded that by merely executing a notarized document purporting to be an

Adoption Deed, the petitioners cannot claim that they have a right to hold custody of the girlchild. This was particularly in the backdrop of the fact that respondent No.3 i.e. the biological

mother of the girl-child herself specifically conceded, firstly before the representatives of the

NGO when they visited her home on the instructions of respondent No.2-CWC that she had

given away the girl-child and received Rs.20,000/- and secondly, when she appeared before

respondent No.2-CWC and stated that she had received Rs.40,000/- from the petitioners and

given away the girl-child.

"There is no doubt in our minds that the child was indeed a child in need of care and protection

as defined in Section 2(14)(v) of the Juvenile Justice Act...A perusal of the provisions of the

Juvenile Justice Act would show that respondent No.2-CWC under Section 30 of the Juvenile

Justice Act is required to ensure proper enquiry in respect of such children, who are in need of

care and protection, to ensure their safety and well being...Therefore, respondent No.2-CWC

was justified in sending the girl-child to the Special Adoptive Agency, in this case, "Vatsalya

Trust". It is relevant to note here that as per Section 1(4) of the Juvenile Justice Act,

notwithstanding anything contained in any other law in force, the provisions of the said Act shall

apply to all matters concerning children in need of care and protection. The said non-obstante

clause makes it abundantly clear that the respondent No.2-CWC has acted as per the mandate

of law...", the High Court held.

Even otherwise, the High Court said that Section 101 of the Juvenile Justice Act provides for

appeal that can be filed by any person aggrieved by an order passed by CWC. The petitioners

could have proceeded under the said provision, if at all they had any grievance in respect of the

said order passed by respondent No.2-CWC in sending the child to the Trust and rejecting their

application for custody. "Since the order passed by the respondent No.2-CWC is in accordance

with law and pursuant to the said order, the girl-child is in custody of the CWC, it cannot be said

that she is in improper or illegal custody. Hence, the present writ petition for habeas corpus must

fail", the High Court had ruled.

Advocates Syed Mehdi Imam, Mohd.Pravez Dabas and Uzmi Jameel Husain appeared for

petitioners