Due process of law to be followed before depriving adoptive parent of child’s custody

Delhi High Court

Delhi High Court: Disposing of a petition wherein the petitioner had sought a writ of habeas corpus directing the respondents to produce her minor adopted child, whose custody had been illegally handed over to an NGO in pursuance of the orders of the Child Welfare Committee dated May 16, 2016, the Bench of G.S. Sistani and Sangita Dhingra Sehgal, JJ. observed that the procedure adopted by CWC was extremely unusual and dangerous in forcibly taking a child from the custody of her adoptive mother, and not in the interest of the child. This act of CWC had created a traumatic situation for the child.

The petitioner had contended that the custody and guardianship of the child were given to her in 2008, when the child was barely four days’ old by the child’s mother vide an adoption deed. Hence, CWC had exceeded its jurisdiction and its order was illegal and bad in law, in view of the adoption deed. She contended that in June 2015, the biological mother had lodged a complaint with the Delhi Commission for Women that the petitioner had kidnapped her child. After verifying the adoption deed and the relevant photographs, the police cancelled the FIR and the CWC passed an order in favour of the petitioner on October 19, 2015. However, the CWC suo moto took up the matter based on a newspaper report that the child’s biological mother had filed a protest petition before the Magistrate Court. The petitioner was directed to be present before CWC, whereupon on May 16, 2016 the custody of the child was forcibly taken by CWC and handed over to an NGO in the presence of the biological mother.

On the other hand, the biological mother contended she was forced into in to sex trade on account of her vulnerable condition of having lost her husband and none to support her family. On account of her pitiable condition, she was also forced to part with the child and made to sign various documents, which were not even explained to her.

The Court held that the petitioner cannot be deprived of the child’s custody without following the due process of law, when the investigation carried out by the police and the CWC were in favour of the petitioner. The Court directed the custody of the child to be handed over to the petitioner in the court itself and observed that this order would not come in the way of the proceedings, if any, by the biological mother seeking cancellation of the adoption deed. [Sulekha  v. State NCT of Delhi, 2016 SCC OnLine Del 3566, decided on June 1, 2016]

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