'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. The vacation bench of Justices Hemant Gupta and V. Ramasubramanian was hearing the SLP preferred at the instance of the adoptive parents against a 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 CourtThe 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 ...

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

Mehal Jain

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