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The court noted that a child could only be considered 'in need of care and protection' if a competent authority had formally declared the parent or guardian unfit or incapacitated and the authority cannot be entitled to the custody of such child without such declaration
The Telangana High Court, in a recent ruling has directed the Women and Child Welfare Department (CWD) to return a two-year and nine months old girl to her adoptive parents, addressing a case of alleged illegal custody.
The court, presided over by Justice Sujoy Paul and Justice J. Sreenivas Rao, made the order while hearing a Habeas Corpus petition by the adoptive father, identified as Petitioner No. 1, who had legally adopted the child, Jeevika Gupta, through a Deed of Adoption dated July 27, 2021. The biological parents, petitioners Nos. 2 and 3, supported this adoption.
The court ruled that according to the law, "a child can be said to be ‘in need of care and protection’ provided the parent, who has custody of said child, is found to be ‘unfit’ or ‘incapacitated’ by the Committee or the body to care for and protect the safety and well-being of the child. Thus, finding of the Committee is sine qua non whether the parent is ‘unfit’ or ‘incapacitated’.”
The Court clarified that unless the Committee takes a decision that the parent or guardian of the child is ‘unfit’ or ‘incapacitated’, the child cannot be said to be “in need of care and protection”. Thereby, disentitling the authority to take custody of such child.
The petitioners contended that on April 28, 2024, at approximately 4:30 PM, two individuals identifying themselves as 'Bal Rakshaks', accompanied by two constables, forcibly entered Petitioner No. 1's residence and took the child without authorization. Since then, the child had been in the custody of the respondents.
Advocate Himangini Sanghi, representing the petitioners, argued that the Deed of Adoption was valid and binding. She asserted that the CWD (respondents) had no legal authority to remove the child from Petitioner No. 1’s custody and sought Rs 10,00,000 in compensation for the wrongful act.
Conversely, the counsel for the respondent-State defended their actions, citing a complaint regarding the unauthorized custody of the child by Petitioner No. 1. They justified their actions under Section 2 (14) (v) and Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015. They argued that these sections allowed intervention if a parent or guardian is deemed unfit or incapacitated.
The court, examining the contentions of both the parties, noted that a child could only be considered 'in need of care and protection' if a competent authority had formally declared the parent or guardian unfit or incapacitated. The Court found no evidence of such a declaration in this case.
The Court held, “In absence of showing any enabling provision, we are unable to countenance the action of the respondents in taking the custody of the child. Resultantly, we are of the opinion that the child was taken from the custody of petitioner No.1 without any authority of law. Thus, the respondents are directed to forthwith return the child/corpus to petitioner No.1.”
The Court also granted the adoptive parents the liberty to seek compensation through appropriate civil legal channels, but declined to adjudicate the compensation claim within the writ petition itself.
Cause Title: Arun Kumar Gupta vs State of Telangana [WP No.13338 of 2024]
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