Mother vs mother battle; Madras HC comes to the rescue of 10 year-old girl given in adoption as toddler

Coming to the rescue of a 10 year-old girl given in adoption in a battle for custody between two women, the Madras High Court has ruled the minor cannot be separated from her foster mother who had cared and nurtured the child for a decade.

The court allowed the girl’s biological parents and siblings free access to her during the weekends, but made it clear she would stay with the woman who cared for her for 10 years after she was given in adoption to her.

The biological mother, who had given her second daughter in adoption when she was about 100 days old to her brother’s wife, cannot take her back after 10 years of living with the foster mother, a division bench of Justices P N Prakash and R Hemalatha, said recently.The court allowed the girl's biological parents and siblings free access to her during the weekends, but made it clear she would stay with the woman who cared for her for 10 years after she was given in adoption to her.

The bench set aside an order of the Child Welfare Committee in Salem, lodging the distraught girl in a local care home.

The child should be handed over back to her adopted mother Sathya who shall permit Sivakumar and Saranya, the biological parents of the child in question, to have free access to her, during weekends, along with her other siblings.

However, the bench made it clear Sivakumar and Saranya shall not take custody of the minor from Sathya.

Earlier, Sivakumar and Saranya had given their second daughter in adoption to the childless Sathya-Ramesh couple in 2012 when the child was about 100 days old. Sathya is Sivakumar’s sister.

Ramesh died of cancer in June, 2019 and civil disputes arose between the two families, leading to relations souring. Ultimately, Saranya sought her daughter from Sathya. The matter went to the local police station and the child was handed over to a Home in Salem.

Meanwhile, they both filed habeas corpus petitions claiming restoration of the child back to them. Justice Prakash, who is the chairman of the Juvenile Justice Committee of the High Court and also one of the portfolio judges for Salem district, noted the child became distraught and started asking for help through social media.

The parties were told to appear before the judges and they noted the girl was affectionate towards both the women and wanted all of them to live together so that she can be with her siblings as well.

Even according to Saranya, her child was given in adoption, when she was hardly three and a half months old. It was not proper on the part of the police to have entertained a complaint from Saranya, held an enquiry, branded the girl as a child in need of care and protection and kept her in a Home, the bench said.

The police should have directed the parties to settle the matter before the civil Court and if Saranya was disputing the adoption, it was for her to seek redressal under the Guardianship and Wards Act, 1890, or a declaration that the adoption is null and void.

The police ought not to have interfered in a case of this nature, remove the child who was under the care and custody of Sathya for about 10 years and lodge her in a Home, the bench said.

Later the bench was told by the local magistrate that the minor was sent to the home on the orders of the CWC, this year and not on that of the police.

Though an appeal remedy is provided under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015, against the orders of the CWC, on facts, the bench found that the police and the CWC had acted beyond the scope of the Act, by mechanically lodging the child in the said Home. She is not an orphaned child, who is in need of care and protection. On the contrary, she has two mothers, who are fighting with each other to give her care and protection. This is a matter which should not have been brought to the police station at all, the bench noted.

“In our opinion, the removal of the child by the CWC from the custody of Sathya based on the police complaint of Saranya and lodging of the child by the CWC in the said Home are clearly illegal,” the bench said and quashed the orders and handed over the girl to Sathya, who shall permit Sivakumar, Saranya and their children to have free access to her during weekends.