Bombay High CourtSachin Anatrao Thakre And Another vs The Union Of India And Others on 7 May, 2021Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni1                            J WP 6314-20.odt\n\n                IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                           BENCH AT AURANGABAD\n                           WRIT PETITION NO. 6314 OF 2020\n1.       Sachin s/o Anantrao Thakre,\n         Age : 34 years, Occu.: Government service,\n\n2.       Manisha w/o Sachin Thakre,\n         Age : 34 years, Occu.; Housewife\n         R/o.: At post : Shirajgaon Deshmukh,\n         Tal.: Khamgaon, District : Buldhana,\n         Presently R/o.: Tahsil Quarter No.1,\n         Tahsil Hniwas, Khamgaon,\n         Tq. Khamgaon, Distric t: Buldhana ...          PETITIONERS\n                 VERSUS\n1.       The Union of India,\n         Through the Secretary,\n         Department of Women and Child Development,\n         1, Canning Lane ( Pandit Ravi Shankar Shukla Lane),\n         Near Bhatiya Vidya Bhavan Bus Stop,\n         Kasturba Gandhi Marg,\n         New Delhi - 110[email protected]2.       Central Adoption Resource Authority,\n         Through the Member Secretary and CEO,\n         Or through the Director,\n         Ministry of Women and Child Development,\n         West Block 8, Wing 2, 1st Floor, R. K. Puram,\n         New Delhi - 110 006 (India)[email protected]3.       The State of Maharashtra,\n         Through the Secretary,\n         Women and Child Development Department,\n         3rd Floor, New Administrative Building,\n         Madam Kama Road, Hutatma Raiguru Chowk,\n         Mumbai - 400 032. Maharashtra, India.\n4.       The State Adoption Resource Agency,\n         Through The Commissioner,\n         2nd Floor, Women and Child Development\n         Commissionerate, 28, Queens Garden,\n         Near Old Circuit House, Pune-411 001.[email protected]::: Uploaded on - 07/05/2021                  ::: Downloaded on - 10/09/2021 18:13:30 :::\n                                      2                            J WP 6314-20.odt\n\n5.       District Women and Child Development Officer,\n         Age : Office of the District Woman and Child\n         Development, Administrative Building,\n         Office of the District Collector,\n         Ground Floor, Jalna- 431203\n6.       District Women and Child Development Officer,\n         Office at Plot No.9, Jadhav Building,\n         Khokadpura, Aurangabad.\n7.       The Chairman,\n         Child Welfare Committee,\n         c/o.: Observation Home, Sant Gadge Nagar,\n         Ambad Road, Jalna, Tal. & Dist. : Jalna.\n8.       The Chairman,\n         Child Welfare Committee,\n         C/o.: Observation Home, N-12, HUDCO,\n         Near HUDCO Corner, Aurangabad\n9.       SAKAR,\n         (Society for Adoption, Knowledge,\n         Awareness and Research)\n         Through the Superintendent / Manager,\n         "Ajmera Complex", Plot No. 177, Jyoti Nagar,\n         Maini Road, Jyoti Nagar, Aurangabad-431005\n         (M.S.) India\n         Email[email protected]Website-www.sakar.org.in                ...         RESPONDENTS\n                                      ....\n\nMr. Bipinchandra K. Patil, Advocate for petitioners.\nMr. A.G. Talhar, Assistant Solicitor General for respondent nos.1 & 2.\nMr. K.N. Lokhande, AGP for respondent nos. 3 to 6.\nMrs. K.N. Gondhalekar & Ms. Priya Gondhalekar, Advocates for\nrespondent no.9.\n                                      ....\n\n\n                          CORAM :   S. V. GANGAPURWALA &\n                                    SHRIKANT D. KULKARNI, JJ.JUDGMENT RESERVED ON         : 9th APRIL, 2021\n                 JUDGMENT PRONOUNCED ON: 7th MAY, 2021::: Uploaded on - 07/05/2021                 ::: Downloaded on - 10/09/2021 18:13:30 :::3                             J WP 6314-20.odt\n\n                                         ...\nJUDGMENT :(PER SHRIKANT D. KULKARNI) :1.       Rule. Rule made returnable forthwith. Heard finally with consent of\n\nall the parties at admission stage.2.       Factual Matrix :-i)       The petitioners are husband and wife. They blessed with one\n\nson namely Dewanshu. In an unfortunate accident, they lost their son,\n\nwho was 4 & 1/2 years of age. The destiny did not stop there. The\n\npetitioners approached to the doctors to take a chance of pregnancy. The\n\ndoctors after examining petitioner no.2 informed that she has lost her\n\ncapacity to have biological child.ii)      On 22.11.2019, Samaj Bhan Teem Social Group, a local NGO\n\nreceived information about abandonment of a child on road at\n\nGhansawani. It is informed that the child was with a woman, who has no\n\nsource of income. She is residing alongside of road and unable to nurture\n\nher son. The child is in bad health. The child was malnourished. On\n\nreceiving such information from the villagers that the woman never takes\n\ncare of her child. That the mother has practically abandoned the child\n\nand sometimes never returned back. Informed to the petitioners about the\n\nsame.          In good faith, the child was given into the custody of the\n\npetitioners on 23rd November, 2019 by Samaj Bhan Teem, a NGO.::: Uploaded on - 07/05/2021                  ::: Downloaded on - 10/09/2021 18:13:30 :::4                             J WP 6314-20.odt\n\n       iii)    On 13/01/2020, the mother of the child was searched andproduced before the Child Welfare Committee at Jalna. On the said date,\n\nthe mother of the child shown her inability to look after her son and\n\nexecuted surrender deed.          By taking into consideration welfare of the\n\nchild on 13/01/2020 after completing necessary legal formalities the child\n\nwas admitted in the institution at Jalna and on the same day custody of\n\nthe child was given to the petitioners on Foster Care Order. Thereafter,\n\nthe petitioners have taken utmost care of the child including medical\n\ntreatment and now he is healthy.iv)     The petitioners were not aware about the legal procedure of\n\nadoption. After getting the knowledge of adoption, the petitioners have\n\ndecided to file petition before the District Court at Jalna. Unfortunately,\n\nthe petitioners could not file the same due to COVID-19 pandemic.v)      On 28/08/2020 the petitioners received a phone call from\n\nMember of the Child Welfare Committee, Jalna.             The petitioners were\n\ninstructed to remain present in the office of CWC at Jalna along with the\n\nchild on 31/08/2020.vi)     Accordingly, the petitioners remained present along with the\n\nchild on 31/08/2020 before the Child Welfare Committee at Jalna. The\n\nchild Dewanshu, who was approximately 17 months was taken back from::: Uploaded on - 07/05/2021                    ::: Downloaded on - 10/09/2021 18:13:30 :::5                              J WP 6314-20.odt\n\nthe custody of the petitioners and admitted in the society for Adoption,\n\nKnowledge, Awareness and Research Institute at Aurangabad, known as\n\nSAKAR, Aurangabad.vii)    Feeling aggrieved by the impugned decision by the CWC at\n\nJalna, the petitioners have approached this court by invoking writ\n\njurisdiction underArticle 226of the Constitution and sought custody of\n\nthe child again coupled with prayer to adopt the child as per the\n\nprovisions of law.3.       Heard Mr. Bipinchandra Patil, learned advocate for the petitioners,\n\nMr. Talhar, learned Assistant Solicitor General for respondent nos. 1 & 2,\n\nMr. K. N. Lokhande, learned AGP for respondent nos.3 to 6, Mrs. A.V.\n\nGondhalekar          and     Ms.    Priya       Gondhalekar,   learned      advocates        for\n\nrespondent no.9.4.       Respondent nos. 7 and 8 though served, did not respond and\n\nmarked absent.5.       Perused the Foster Care order dated 13/01/2020 passed by the\n\nChild Welfare Committee, Jalna and documents produced along with list\n\nat page no.22. We have also perused copy of affidavit in reply filed on\n\nbehalf of respondent nos. 3 and 6, copy of release deed dated\n\n13/01/2020, copy of institutionalization order dated 13/01/2020, copy of::: Uploaded on - 07/05/2021                          ::: Downloaded on - 10/09/2021 18:13:30 :::6                            J WP 6314-20.odt\n\nthe Foster Care order dated 13/01/2020 passed by CWC, Jalna and\n\naffidavit in reply filed on behalf of respondent no.9 with list of documents\n\nat page no.75.6.       Mr. Patil, learned advocate for the petitioners vehemently submitted\n\nthat impugned action of the CWC, Jalna of removal of the child Devanshu\n\n17 months old, from the custody of the petitioners after a long period, is\n\nerroneous and against the principles of justice, equity and good conscious.\n\nThe CWC has passed order without giving notice, intimation and without\n\nfollowing due procedure of law. The impugned action is bad in law. Mr.\n\nPatil submitted that welfare of the child should be paramount\n\nconsideration. For 10 months the child was with petitioners. They are\n\nattached with the child. The child has been taken away, which has caused\n\nmental trauma to the petitioners. The CWC has not considered the object\n\nof Juvenile Justice (Care andProtection of Children) Act, 2015, National\n\nCharter for Children 2003 and National Policy for adoption.                Mr. Patil\n\nsubmitted that the CWC has not considered the Chapter 7 of the Juvenile\n\nJustice Act, 2015. He submitted that the petitioners are ready to complete\n\nall the legal formalities for adoption of a child as per CARA guidelines and\n\nas per the provisions of Juvenile Justice Act 2015. He submitted that the\n\nCARA has powers to relax certain conditions for adoption procedure. The\n\nchild, Devanshu may be given into the custody of the petitioners, which is\n\nin the best interest of the child.::: Uploaded on - 07/05/2021                 ::: Downloaded on - 10/09/2021 18:13:30 :::7                           J WP 6314-20.odt7.       Mr. A.G. Talhar, learned Assistant Solicitor General of India\n\nappearing for respondent nos.1 and 2 submitted that the procedure laid\n\ndown under the Juvenile Justice Act, 2015 and Rules thereunder need to\n\nbe strictly followed. He submitted thatSection 35provides surrender of a\n\nchild.     In the case at hand said mandatory provision is not followed.Sections 31and32provide how child is to be produced before CWC. He\n\nsubmitted that Section 44 of the JJ Act also provides provision of foster\n\ncare before a child is given in adoption, child should be free as\n\ncontemplated under Section 38 of the JJ Act. He submitted that in the\n\npresent case provisions of the JJ Act and Rules made thereunder are not\n\nfollowed while giving custody of a child to the petitioners. He submitted\n\nthat it is a clear case of breach of mandatory provisions of JJ Act and Rules\n\nmade thereunder by the petitioners and Specialized Adoption Agency. In\n\nthat background the petitioners are not entitled to get back custody of the\n\nchild.8.       Mr. K. N. Lokhande, learned AGP for the State / respondent nos. 3\n\nto 6 submitted that the petitioners have obtained the custody of the child\n\ndirectly from local NGO namely Samaj Bhan Organization. Said act is in\n\nviolation of Section 31 of the Juvenile Justice Act. The child ought to have\n\nproduced before the CWC. The proper procedure is not followed. The\n\npetitioners have not followed the CARA guidelines, which are mandatory::: Uploaded on - 07/05/2021               ::: Downloaded on - 10/09/2021 18:13:30 :::8                             J WP 6314-20.odt\n\nfor adoption of a child. Mr. Lokhande invited that in Suo Motu Public\n\nInterest Litigation No. 2 of 2020, as per the directions of this court, the\n\ninmates admitted in Marwadi Charitable Trust, Jalna, Child Care\n\nInstitution, (CCI) and Specialized Adoption Agency (SAA) three inmates,\n\nwho were given in Foster Care including Devanshu, now they are in the\n\ncustody of respondent no.9 SAKAR. He submitted that CWC, Jalna has\n\ngiven the child in Foster Care on the basis of release deed in gross\n\nviolation of Juvenile Justice Act, 2015. The CWC has not followed the\n\nJuvenile Justice Act. The CWC, Jalna has also not followed the rules of\n\nMaharashtra Juvenile Justice (Care and Protection of Children) Rules,\n\n2018 for adoption of a child by the foster family.9.       The CWC has passed the order of Foster Care simply on the basis of\n\nsocial investigation report, which is also incomplete. There is no home\n\nstudy report to assess the suitability of the petitioners of foster parent. Mr.\n\nLokhande submitted that local NGO namely Samaj Bhan Organization and\n\nthe present petitioners are involved in illegal adoption process for personal\n\ngain without protecting best interest of the child. He submitted that at\n\npresent the child Devanshu is admitted in SAKAR (Specialized Adoption\n\nAgency), Aurangabad by the order of CWC, Aurangabad and said\n\ninstitution is taking good care of the child.         He submitted that the\n\npetitioners have no right to select or to take custody of the child before::: Uploaded on - 07/05/2021                 ::: Downloaded on - 10/09/2021 18:13:30 :::9                            J WP 6314-20.odt\n\nregistration of a child on the portal. In conclusion, Mr. Lokhande, learned\n\nAGP submitted that the petitioners are not entitled to get back custody of\n\nthe child. The petition devoid any merit and liable to be dismissed.10.       Mrs. Gondhalekar, learned advocate for respondent no.9 invited our\n\nattention to the provisions of the Juvenile Justice Act and Rules. She\n\nsubmitted that procedure of handing over of a child is prescribed in\n\nJuvenile Justice Act, 2015 and Rules made thereunder. It is mandatory\n\nthat any child in need of care and protection must be produced before the\n\nCWC without delay. The child Devanshu was falling in the definition of\n\nchild in need of care and protection.            Even then, the child was not\n\nproduced before CWC but custody of the child was handed over to the\n\npetitioners in gross violation of provisions of Juvenile Justice Act and\n\nRules. Local NGO- Samaj Bhan Organization has no legal right to hand\n\nover the custody of the child to the petitioners. Neither the police station\n\nnor CWC, Jalna was informed about the child in need of care and\n\nprotection by Samaj Bhan Organization or the petitioners and thereby\n\ngiven total goodbye to the provisions of Juvenile Justice Act and Rules\n\nmade thereunder.             The mandatory rules are not followed while giving\n\ncustody of a child under Foster Care Agreement. The CARA guidelines are\n\nnot followed.           She submitted that the child is now in safe hands of\n\nSpecialized Adoption Agency - SAKAR. The procedure for adoption and::: Uploaded on - 07/05/2021                   ::: Downloaded on - 10/09/2021 18:13:30 :::10                            J WP 6314-20.odt\n\nCARA guidelines are mandatory. The child Devanshu cannot be given\n\nback into the custody of the petitioners.11.        The Juvenile Justice (Care andProtection of Children) Act, 2015\n\n(hereinafter referred to as 'JJ Act' for brevity) came into force with effect\n\nfrom 31/12/2015. The Government of India has also framed JJ Act, 2015\n\nModels Rules 2016 and the Adoption Regulations, 2017.                   The State is\n\nempowered to frame its own rules by invoking Section 110 of the JJ Act.\n\nIn exercise of the powers conferred by Sub-Section (1)(2) of Section 110\n\nof the JJ Act, (2) of 2016 and all other powers enabling in that behalf the\n\nGovernment of Maharashtra has framed the Rules known as the\n\nMaharashtra State Juvenile Justice (Care and Protection of Children)\n\nRules 2018 effective from 13th March, 2018.12.       The above referred Act, Rules and Regulations governed the field of\n\nadoption in India. Adoption is a process other than the birth process,\n\nwhich creates parents and child relationship.          It is a social and legal\n\nprocess by which a child of one set of parents becomes the child of another\n\nset of parents.          Adoption as defined is the process through which the\n\nadopted child is permanently separated from the biological parents and\n\nbecomes the legitimate child of the adoptive parents with all rights,\n\nprivileges and responsibilities that are attached to the relationship. JJ Act\n\nintroduced expression "child in need of care and protection."::: Uploaded on - 07/05/2021                  ::: Downloaded on - 10/09/2021 18:13:30 :::11                              J WP 6314-20.odt13.       Section 68 of the JJ Act relates to Central Authority known as\n\nCentral Adoption Resource Authority to promote in-country adoptions and\n\nto facilitate inter-state adoptions in coordination with State Agency. CARA\n\nalso perform the function of inter-country adoptions. Chapter 8 of JJ Act,\n\n2015 deals with adoption.Section 56relates to adoption.Section 57relates to eligibility of a prospective adoptive parents.Section 58provides\n\nprocedure for adoption by adoptive parents living in India.Section 61provides court procedure for adoption.Section 67deals with State\n\nAdoption Resource Agency. The new guidelines issued by the Central and\n\nState Government simplify entire process of adoption and bring in greater\n\ntransparency and clarity in the process.       The following is broadly the\n\nprocess followed for adoption:"a) Parents register online on CARINGS (Child Adoption\n         Resource Information and Guidance System) and select the\n         preferred Adoption Agency for HSR (Home Study Reporty)\n         and Stateb) Required documents have to be uploaded within 30 days\n         of registration.c)     Specialized Adoption Agency (SAA) conducts Home\n         Study Report (HSR) of the PAPs and uploads it on CARINGS\n         within 30 days from the date of submission of required\n         documents on CARINGS.d) Suitability of PAPs is determined (if not found suitable,\n         PAPs informed with reasons for rejection)::: Uploaded on - 07/05/2021                   ::: Downloaded on - 10/09/2021 18:13:30 :::12                            J WP 6314-20.odte) PAPs reserve one child, as per their preference from up to\n         6 children.f) PAPs visit the adoption agency within 15 days from the\n         date of reservation and finalize.g) If the child is not finalized within stipulated time, the\n         PAPs come down in the seniority list.h) On acceptance of the child by the PAPs, SAA completes\n         the referral and adoption process (on CARINGS)i) PAPs take the child in pre-adoption foster care and SAA\n         files petition in the court and the adoption Court order is\n         issued.j) Post-adoption follow-up report is conducted for a period\n         of two years.''14.        Now coming to the fact of the case on hand :Child, Dewanshu was found abandoned on 22/11/2019 by local\n\nNGO Samaj Bhan group. The child was not produced before the CWC at\n\nJalna within a period of 24 hours as per Section 31 of the JJ Act, 2015 by\n\nthe local NGO Samaj Bhan group, but was given in custody of the\n\npetitioners on same day viz. 22.11.2019 by said Samaj Bhan Group. Child\n\nDewanshu (then 7 months old) was produced before the CWC, Jalna on\n\n13/01/2020 by local NGO Samaj Bhan Group.15.       Biological mother of the child was produced before CWC Jalna on\n\n13/01/2020. It is stated that she denied to take responsibility of the child\n\nand executed release deed on 13/01/2020 before CWC Jalna and on that\n\nbasis CWC has placed the child in foster care with the petitioners.::: Uploaded on - 07/05/2021                 ::: Downloaded on - 10/09/2021 18:13:30 :::13                          J WP 6314-20.odt16.       The welfare of a child shall be the paramount consideration while\n\ngiving the child in adoption.17.       On going through the pleadings and affidavits of the parties it is\n\nevident that local NGO Samaj Bhan organization has given custody of\n\nchild Dewanshu directly to the petitioners on the same day it was found\n\nabandoned by said local NGO. It is not clear whether said local NGO is\n\nduly registered under the Maharashtra Public Trust and J.J. Act and Rules.\n\nSection 31 of the J.J. Act provides that any child in need of care and\n\nprotection shall be produced before the CWC without any loss of time\n\nwithin a period of 24 hours excluding the journey time. In the case at\n\nhand, above said local NGO has violatedSection 31of the Act by not\n\nproducing the child before CWC Jalna.          Child Dewanshu was found\n\nabandoned on 22/11/2019 and he was produced for the first time before\n\nCWC Jalna on 13/01/2020 by causing inordinate delay.                 Further it is\n\nevident that mother of the child seems to have executed a release deed in\n\nrespect of her child in presence of CWC Jalna on 13/01/2020. The release\n\ndeed dated 13/01/2020 is not according to the provisions of the JJ Act\n\nand Rules and same is not in prescribed format.Section 35of the Act\n\nprovides that CWC needs to complete the process of enquiry and\n\ncounselling of the parents, who wish to surrender the child before CWC.\n\nAfter completion of inquiry and counselling of said parents, if CWC::: Uploaded on - 07/05/2021               ::: Downloaded on - 10/09/2021 18:13:30 :::14                            J WP 6314-20.odt\n\nsatisfies then only parents shall execute a surrender deed. In the case at\n\nhand biological mother has executed a release deed instead of surrender\n\ndeed, which is against the provisions of JJ Act, 2015. Further more it is\n\nevident that CWC has completed the process of institutionalization and\n\nsurrender of said child hurridely and given the said child in foster care to\n\nthe petitioners on the basis of release deed on the same day in gross\n\nviolation of JJ Act, 2015. The institutionalization order passed by CWC\n\ndated 13/01/2020 is defective in the eye of law.18.       Further it is evident that CWC has not conducted proper enquiry in\n\nrespect of parents of the child who intend to surrender the child before\n\nCWC. In the case at hand biological mother of the child stated to be 50\n\nyears old.        On the date of execution of release deed the child was 7\n\nmonths old. It was necessary for the CWC Jalna to verify the documents\n\nof biological mother and verify the circumstances which compelled the\n\nmother to surrender the child.            What is family background of the\n\nbiological mother, what are the antecedents etc., seem to have not verified\n\nby CWC though Act casts duty on it.19.       Further it is evident that child is given in temporary custody of the\n\npetitioners on the basis of foster care agreement on 13/01/2020 i.e. on\n\nthe very day of release deed allegedly executed by the mother. According\n\nto the Rule 25 read with Rule 46 of JJ Act Rules 2018 the CWC shall take::: Uploaded on - 07/05/2021                 ::: Downloaded on - 10/09/2021 18:13:30 :::15                          J WP 6314-20.odt\n\ndecision related to placement of a child for foster care.        The children in\n\nage group of 6 and above may be considered for placement in foster care\n\nin the circumstances mentioned in sub-Rule 1 of Rule 46. The child to be\n\ngiven in foster care must be legally free for adoption. Such child shall be\n\nprovided a permanent family through adoption as per adoption\n\nregulations. In case at hand CWC Jalna has given the child in foster care\n\nto the petitioners for a period of 90 days by its order dated 13/01/2020\n\nwhich is contrary to Rule 46(v) of the Rules 2018.20.       The question poses how CWC Jalna has given the custody of a child\n\nto the petitioners without completing the process of surrender as\n\ncontemplated underSection 35of the Act, 2015 and Rule 19(22) of Rules\n\n2018.       The order of foster care passed by CWC is before expiry of 2\n\nmonths from the date of surrender and violative of above said provisions\n\nof JJ Act and Rules.21.       Further it is evident that CWC has passed the order of foster care\n\nsimply on the basis of social investigation report, which is also incomplete.\n\nThere is no medical report to certify that child is fit to be given in foster\n\ncare.      There is no home study report to assess the suitability of the\n\npetitioners as a foster parent.Section 55of the Act, 2015 casts duty on\n\nCWC to declare the parents as fit for foster care.          The CWC has not\n\nfollowed due procedure.::: Uploaded on - 07/05/2021               ::: Downloaded on - 10/09/2021 18:13:30 :::16                            J WP 6314-20.odt22.       Once a child is produced before the CWC, the JJ Act, 2015,\n\nMaharashtra Juvenile Justice (Care and Protection of Children) Rules,\n\n2018 and guidelines of Central Adoption Resource Agency need to be\n\nfollowed strictly to protect best interest of a child.23.       Further it is pointed out by learned Advocate for respondent no.9\n\nManager SAKAR that Specialized Adoption Agency (Smt. Rajkunvar\n\nRameshchandra Bang Shishu Gruha, Jalna) did not upload the\n\ninformation of the child (CNCP) on CARA, CARINGS platform and even\n\nnot uploaded the information on National Tracking System for missing\n\nand vulnerable children though it is mandatory as per the JJ Act, 2015.24.       It is pointed out by Mrs. Gondhalekar, learned advocate for\n\nrespondent no.9 that as per Rule 25(13) of the Rules 2018, the age of\n\nfoster parents should be above 35 years of age, but the age of the\n\npetitioners is admittedly below 35 years and contravened Rule 25(13).\n\nMrs. Gondhalekar further pointed out that Rules 25((9) to 25 (16) are not\n\nfollowed by CWC, Jalna / respondent no.7 and directly passed final order\n\nof foster care of Dewanshu. It is clear-cut violation of the provisions of JJ\n\nAct and Rules.25.       It is pointed out by Mrs. Gondhalekar, learned advocate that\n\nRegulation no.7 of Adoption Regulation, 2017 deals with procedure::: Uploaded on - 07/05/2021                 ::: Downloaded on - 10/09/2021 18:13:30 :::17                             J WP 6314-20.odt\n\nrelating to surrender of child. The said procedure is not adhered to by\n\nCWC, Jalna. She submitted that Chapter-3 of Adoption Regulations, 2017\n\ndescribes "adoption procedure for resident Indians". Regulation 10 relates\n\nto referral of a child from Specialized Adoption Agency through Child\n\nAdoption Resources Information and Guidance System (CARINGS) to\n\nprospective adoptive parents. This regulation itself stipulates the seniority\n\nof the prospective adoptive parents, the seniority is calculated from the\n\ndate of uploading of documents and completion of registration process in\n\nCARINGS. The petitioners are required to follow the procedure and must\n\nstand in the queue as a prospective adoptive parent to complete the\n\nadoption procedure.26.       Mr. Patil, learned counsel for the petitioners has relied upon certain\n\ncitations in support of his argument, which are considered with the facts\n\nof the case on handi) In case ofSivarama K. and others vs. The State of Kerala and\n\nothers, 2020(1)KLT, 294, the writ petition was filed to produce a child. It\n\nwas a writ of habeas corpus. In that case the biological parents had given\n\ntheir child in adoption to the adoptive parents after fulfilling all the\n\nprovisions of the Hindu Adoption andMaintenance Act, 1956, that too,\n\nafter executing a registered adoption deed. The facts of the cited case and\n\nthe facts of the case at hand are quite distinguishable and as such said\n\ndecision is not anyway helpful to the petitioners.::: Uploaded on - 07/05/2021                  ::: Downloaded on - 10/09/2021 18:13:30 :::18                             J WP 6314-20.odt\n\n\n       ii)     In case of Aniruddha M. Railkar Vs. Indian Council for SocialWelfare reported in AIR Bombay R 2007 page 471, the Division Bench of\n\nthis Court was pleased to quash and set aside the order passed by the\n\nFamily Court, Pune rejecting the petitioners prayer for adoption of an\n\nIndian child Shubham. On going through the citation, it is noticed that\n\nCARA had given clearance for adoption and in that background the\n\nparents who are foreign nationals of Indian origin residing in the U.S.A.\n\nallowed to complete the adoption procedure. The facts of the case on hand\n\nare quite different.iii) Mr. Patil, learned advocate further placed his reliance in the\n\ncase of Harishbhai C. Limbachiya and another vs. State of Maharashtra\n\nand others ( Writ Petition No. 1489 of 2017) decided by the Division\n\nBench at principle seat on 31 st August, 2017. On going through the same,\n\nwe noticed that it was a writ of habeas corpus. The Division Bench was\n\npleased to pass interim order regarding custody of the minor child to the\n\npetitioners. It is not a final order and does not render any assistance to\n\nthe petitioners.iv) Mr. Patil, learned advocate for petitioners further relied upon in\n\ncase of Petrik Francis Rodrigues and another vs. State of Maharashtra and\n\nothers, (Criminal Writ Petition No. 334 of 2017) decided by the Division::: Uploaded on - 07/05/2021                  ::: Downloaded on - 10/09/2021 18:13:30 :::19                          J WP 6314-20.odt\n\nBench at principle seat on 14/02/2017. Again it was a case of writ of\n\nhabeas corpus and by way of interim order and taking into consideration\n\nwelfare of the minor child, interim custody was handed over to the\n\npetitioners. It is not a final order.v)    In Suo Moto Writ Petition (Civil) No.4 of 2020 , decided on\n\n03/04/2020 by the Supreme Court, it is held by taking into situation\n\nCOVID-19 pandemic, interest of the children should be looked into.\n\nInterest of these children all of whom fall within the ambit of Juvenile\n\nJustice (Care andProtection of Children) Act, 2015 should be protected\n\nand to prevent the same, certain directions are issued.27.       Having regard to the stock of citations (supra) relied upon by Mr.\n\nPatil, learned advocate for the petitioners, none of them supports to his\n\ncase.28.       We found merit in the argument advanced by the learned Assistant\n\nSolicitor General, AGP and Mrs. Gondhalekar for respective respondents.\n\nThe case at hand is a classic example of breach of provisions of JJ Act,\n\n2015 and Rules 2018 which deals with adoption of child who is termed as\n\nchild in need of care and protection. The child Dewanshu was in the\n\ncustody of the petitioners for a period of 7 months on the basis of foster\n\ncare agreement but that foster care agreement is found to be in breach of::: Uploaded on - 07/05/2021               ::: Downloaded on - 10/09/2021 18:13:30 :::20                          J WP 6314-20.odt\n\nprovisions of JJ Act and Rules. The CWC, Jalna by blatant violation of\n\nmandatory provisions of JJ Act, 2015 and Rules 2018 seem to have given\n\ncustody of a child to the petitioners by way of foster care agreement. The\n\nentire process is found to be defective in the eye of law.29.       We understand the feelings and emotions of petitioners. We also\n\nunderstand the petitioners' may have developed attachment with the child\n\nDewanshu. At the same time, we cannot overlook mandatory provisions\n\nof JJ Act, 2015 and Rules 2018, which provides welfare of a child before\n\ngiving a child in adoption. This Court allowed the petitioners to move\n\nRelaxation Committee of Central Adoption Resource Authority and\n\ndirected CARA to consider the case of the petitioners having regard to its\n\npeculiar facts. However, the Relaxation Committee vide its decision dated\n\n11.02.2021 communicated that the present case does not come under the\n\npreview of the Relaxation Committee constituted under the provision of\n\nthe Adoption Regulations Act 2017, which is passed on the JJ Act 2015.30.       In case of S. Vanitha (Smt. Vs. Deputy Commissioner, Bengaluru\n\nUrban District and Others, reported in 2020 SCC online SC 1023, the\n\nHon'ble Supreme Court has emphasized upon the necessity to protect the\n\nrights of the children so as to give purposeful interpretation to the\n\ndefinition of child in need of care and protection underSection 2(14) of\n\nthe JJ Act, 2015.::: Uploaded on - 07/05/2021               ::: Downloaded on - 10/09/2021 18:13:30 :::21                          J WP 6314-20.odt31.       In this background, we are of the considered opinion that the male\n\nchild in the facts and circumstances of the present case, is in need of care\n\nand protection and proper procedure is not followed while giving the\n\ncustody to the petitioners on the basis of foster care agreement. The\n\npetitioners are resident of Khamgaon, District Buldana. Local NGO Samaj\n\nBhan is from Jalna. The question poses how Samaj Bhan a local NGO\n\ncame to know that the petitioners are issueless and they want to adopt a\n\nchild. How a local NGO made contact with the petitioners on 22.11.2019\n\nand handed over the custody of the abandoned child directly to the\n\npetitioners also a suspicious circumstance. In SMPIL No. 2 of 2020\n\n(Registrar (Judicial) Vs. Union of India and others), this Court has issued\n\ncertain directions and in pursuance of directions issued by this Court, the\n\nDistrict Women and Child Development Officer, Jalna has filed F.I.R.\n\nbearing No.0577 of 2020 dated 18.12.2020 against the members of Child\n\nWelfare Committee, Jalna and Directors of Marwadi Charitable Trust,\n\nJalna regarding illegalities committed in the process of adoption. In the\n\nabove background, the entire process of giving interim custody of child on\n\nexecution of foster care agreement in this case is highly tainted. There is\n\nno application of provisions of JJ Act 2015 and Rules 2018.::: Uploaded on - 07/05/2021               ::: Downloaded on - 10/09/2021 18:13:30 :::22                             J WP 6314-20.odt\n\n\nIn view of the above, the prayers made by the petitioners cannot be\n\ngranted. We arrived at this conclusion by keeping the best interest of the\n\nmale child as being paramount consideration.32.       In view of above, we find that there is no merit in the writ petition.\n\nAccordingly, the writ petition is dismissed. Rule is discharged. No order\n\nas to costs.(SHRIKANT D. KULKARNI)                         (S. V. GANGAPURWALA.)\n          JUDGE                                           JUDGE\n\n\n\nS P. Rane::: Uploaded on - 07/05/2021                  ::: Downloaded on - 10/09/2021 18:13:30 :::