The Madras High Court upheld the decision of the Child Welfare Committee to take over the custody of an abandoned one-and-a-half-year-old baby who was found in a train and also clarified that mere submission of an application seeking adoption would not confer any right to take custody of a child unilaterally and declare the said child as an adopted daughter.

The Petition before the High Court was filed by woman seeking a direction to authorities to produce her child and hand over her custody to her.

The Division Bench comprising Justice S.M. Subramaniam and Justice M. Jothiraman asserted, “Therefore, the custody of the child is with the Government, and at present, is in accordance with law. However, the custody of the child with the petitioner cannot be constured as legal, since the procedures as contemplated under the relevant statutes were not followed.”

Senior Counsel John Sathiyan represented the Petitioner while Additional Public Prosecutor R.Muniyapparaj represented the Respondent.

Factual Background

The petitioner got married in the year 2004 and was not blessed with any child for about 20 years. The husband of the petitioner is presently aged about 54 years and the petitioner is about 47 years. They are waiting for an opportunity to adopt the child and have already applied for adoption. In the year 2023, while travelling they found a newborn female child wrapped in a cloth in the Toilet of the train. They decided to take the female child as their daughter. The child was in the custody of the petitioner and her husband.

The Special Cell received information in the year 2024 that child racketing was going on at Erode, and during the course of ethe nquiry, it was found that a baby was in the custody of the petitioner and her husband. The Child Welfare Committee conducted an enquiry and took away the Child.

Arguments

It was the petitioner’s case that the petitioner and her husband have been taking care of the child for about 1 ½ years and are emotionally attached to the child and providing all necessary care, medical treatment and facilities. Since the petitioner is issueless, with the consent of her husband, she decided to take the child by adoption and submitted an application.

Reasoning

The Bench noted that the couple would have been emotionally attached and provided all facilities to the child but that alone would not provide entitlement to the petitioner to claim the child as an adopted child. On the issue of maintainability of the Petition, the Bench noticed that the child, at present, is not under illegal detention and with the custody of the State. Admittedly, it was an abandoned child and on receipt of information from the Chief Minister Cell, the Child Welfare Committee conducted an enquiry and took custody of the child.

“Mere submission of an application seeking an adoption would not confer any right to take custody of a child unilaterally and declare the said child as an adopted daughter”, it said. As per the Bench, the best interest of the child includes its future, which has to be assessed by following the procedures and taking into consideration, various factors including the status, capacity, mindset set etc., of the parents who are seeking adoption of a child.

“The wishes, better environment and other aspects are to be taken into consideration before dealing with minor children and in the present case, the child is presently aged about 1 ½ years and incapable of expressing emotions and feelings. That being so, it would be inappropriate for the High Court to declare the petitioner as a foster parent or pave way for direct adoption, without undergoing the procedures as contemplated under the statutes. However, the applications submitted, if any seeking adoption by the petitioner, has to be considered by following the procedures and considering the other factors”, it added.

“ The Habeas Corpus Petition is not maintainable per se in view of the fact that the child is not under illegal detention”, the Bench said while dismissing the Petition.

The Court, thus, ordered, “The respondents shall take care of the child and initiate all necessary actions to trace out the biological parents and thereafter, follow the procedures by declaring the child fit for adoption and after such declaration, the child can be considered for giving adoption to any eligible parents, as per the procedures as contemplated under the HAM Act.”

Cause Title: X v. The Chairperson/Member Child Welfare Committee (Case No.: H.C.P.No.2887 of 2024)

Appearance:

Petitioner: Senior Counsel John Sathiyan , Advocate S.Washimaraja

Respondent: Additional Public Prosecutor R.Muniyapparaj

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