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'CWC Acted Beyond The Scope Of Juvenile Justice Act': Madras High Court Returns The Custody Of Child To Adoptive Mother

Sebin James
28 Nov 2021 2:46 PM GMT
CWC Acted Beyond The Scope Of Juvenile Justice Act: Madras High Court Returns The Custody Of Child To Adoptive Mother
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Madras High Court has recently set aside an order of the Child Welfare Committee to lodge a child in one of the reception homes in a custody battle between the adoptive mother and the biological mother. The court observed that the girl child can't be branded as one 'in need of care and protection', especially when 'two mothers are fighting with each other to give her care...

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Madras High Court has recently set aside an order of the Child Welfare Committee to lodge a child in one of the reception homes in a custody battle between the adoptive mother and the biological mother. The court observed that the girl child can't be branded as one 'in need of care and protection', especially when 'two mothers are fighting with each other to give her care and protection'.

A Division Bench of Justice P.N Prakash and Justice R. Hemalatha was hearing two habeas corpus petitions filed by the biological mother and the adoptive mother respectively, both of whom are sisters-in-law.

The court referred to Section 101 of Juvenile Justice (Care and Protection of Children) Act, 2015 and noted that there is an appeal remedy to challenge the CWC Order that took away the custody of the child. However, relying on the facts of the case at hand, the court found it appropriate to note down the following:

"We find that the police and the CWC had acted beyond the scope of the said Act, by mechanically lodging Abi (girl child) in the said Home. Abi is not an orphaned child, who is in need of care and protection. On the contrary, she has two mothers viz., Saranya (biological mother) and Sathya (adoptive mother), who are fighting with each other to give her care and protection. "

Noting that the initial mediation proceedings have revealed the child's deep love for both the mothers and her wish to live in close vicinity of her siblings, the court recorded in the order that the adoptive mother would retain her custody of the child. However, it won't bar the biological parents or siblings from having unrestricted access to the child during weekends.

The girl child, when she was three and a half years old, was given in adoption by the biological mother to her childless sister-in-law. When the adoptive mother's husband, i.e., brother of the biological mother, died due to an ailment, the families became estranged. Last month, the biological mother filed a complaint to the Commissioner of Police stating that she or her husband had no longer unrestricted access to the child. The complaint was forwarded to an All Women Police Station at Ammapet.

An enquiry was conducted by the police, the biological mother was also called to the police station to verify the situation and later CWC, Salem got involved in the matter. The child was taken to a reception home by an order of CWC dated 15th November.

Around the same time the habeas corpus petitions were being scrutinised by the High Court Registry, the adoptive mother also filed a habeas corpus petition before Supreme Court for the child's custody. The apex court then directed her to appear before High Court so that it can settle the conflict between the mothers and consider the legality of steps taken by CWC.

While examining the facts of the case, the division bench also added in the order that the police erred in entertaining a complaint of such nature and complicated it even further:

"The police should have directed the parties to settle the matter before the civil Court and if Saranya (biological mother) was disputing the adoption, it was for her to seek redress under the Guardianship and Wards Act, 1890, or for seeking a declaration that the adoption is null and void. The police ought not to have interfered with in a case of this nature, removed Abi(the girl child), who was under the care and custody of Sathya (adoptive mother) for about 10 years and lodged her in a Home."'

Putting the matter to rest, the court set aside the CWC order on facts and handed over the child's custody to the adoptive mother.

Case No: H.C.P.Nos.1868 and 1892 of 2021

Click Here To Read/ Download Order




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