Full Text
HIGH COURT OF DELHI
Date of order: 16th October, 2024
KIRAN & ANR. .....Petitioners
Through: Mr. Chiranjev Chauha, Ms. Alina and Ms. Muskaan, Advocates along
Through: Mr. Amol Sinha, ASC for the State.
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Articles 226 and 227 of the Constitution of India, 1950 has been filed on behalf of the petitioners seeking the following reliefs: “..(a) pass a writ of mandamus or any other writ, order of direction thereby directing the respondents to produce the child named 'Kismat' (aged about 124 days] before this Hon'ble Court; (b)pass a writ of mandamus or any other writ, order of direction thereby directing the respondents to handover the physical custody of the named 'Kismat' (aged about 124 days) to the petitioners being her adoptive parents and until the biological parents of the child could not be traced out;
(c) pass a writ of mandamus or any other writ, order or direction of like nature thereby directing the respondents to consider this case under special and exception category and provide all necessary and immediate assistance including medical, vaccination etc. to the child named 'Kismat' (aged about 124 days);
(d) allow the petitioners to meet the child named 'Kismat' (aged about 124 days], who is presently in the custody of respondent no.3/CWC and further allow them to give the child home made healthy diet;..”
2. Learned counsel appearing on behalf of the petitioner submitted that the petitioner couple got married in the year 2018, however, despite several attempts no child could be born out of the wedlock, therefore, the petitioner couple adopted a female child aged about 21 days on 17th January, 2024 from the adoption centre namely „Home Child Adoption Centre‟ situated in Delhi which is being run by one Ms. Ashmeet Kaur.
3. It is submitted that the petitioner had done the necessary due diligence on their part and all the legal mandates were duly complied with by the petitioner couple and they were under impression that the said adoption centre is legal.
4. It is submitted that on 9th April, 2024, the officials of the Police Station - Nangloi, Delhi contacted the petitioner couple stating that an FIR bearing no. 0293/2024 was lodged against Ms. Kaur and her aides, and the said adoption centre was sealed by the police for non-compliance with the legal requirements and therefore, the petitioner couple were directed to hand over the child to the concerned authorities.
5. It is submitted that the petitioner couple, present today before this Court, have developed love and affection towards the child who was adopted when she was only 21 days old and it is prayed that the child may be given to them and they undertake to complete all the formalities for the purpose of adoption of the same child. Hence, it is prayed that the instant writ petition may be allowed and the reliefs may be granted.
6. Per contra, learned ASC appearing for the State apprised this Court that upon investigation, it has been found that the Child Adoption Centre in question which is being run by Ms. Ashmeet Kaur was being run illegally and without any authorization from the concerned authorities.
7. It is also submitted that the formalities and documentation claimed to be completed by the petitioner couple are not as per the law and mandate of the provision and thus, there is no merit in the instant petition.
8. Ms. Kaisar Parveen, Officiating Chairperson of Child Welfare Committee, Hope Foundation, Matri Chaya (State Adoption Agency) is also present in the Court and submitted that due to the non-compliance with the adoption mandate, the child in question has been taken away from the petitioner couple and is kept in the State Adoption Agency.
9. Ms. Parveen thereafter submitted that the child is an infant, therefore, it would be premature to comment on the aspect of whether the child has developed love and affection with the petitioner couple but the learned ASC as well as Officiating Chairperson of the said committee conceded to the fact that the mother may develop the love and affection with the child who was adopted by them when she was only 21 days old.
10. Furthermore, Officiating Chairperson suggested that the petitioner couple may be given the priority to adopt the child as the petitioner couple were oblivious to the fact that the said adoption centre was being run illegally and the petitioner couple had developed love and affection with the child living with them for the past 3.[5] months.
11. Heard the parties and perused the material on record.
12. The power vested in Article 226 of the Constitution of India empowers litigants to directly approach the High Courts to safeguard their fundamental rights and rectify injustices. Criminal writ petitions under Article 226 of the Constitution of India can thus, be filed in the High Court when there is a fundamental rights‟ violation or in cases where an individual seeks the Court‟s intervention in some criminal proceedings, however, it is pertinent to note that not everyone can assert their rights before a writ Court and file a criminal writ petition. The eligibility to file the same is generally restricted to those directly affected by the issue at hand and this includes individuals or entities whose rights are being infringed or are in jeopardy due to actions or inactions attributable to public authorities.
13. In Bhubaneswar Development Authority v. Adikanda Biswal, (2012) 11 SCC 731, it was held by the Hon‟ble Supreme Court that while exercising powers under Article 226 of the Constitution of India, it is trite law that the power of judicial review is not directed against the decision but is confined to the decision-making process. It was also observed by the Hon‟ble Court that the process of judicial review is not an appeal from a decision, rather the same is merely a review of the process via which the decision has been made.
14. In view of the above, it is observed that as per the settled position of law, the High Court confines itself to the question of legality and is only concerned with the issue of whether the decision-making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers with respect to the said adoption.
15. As per the status report on record, it is prima facie established that the centre being run by one Ms. Ashmeet Kaur is illegal and the adoption being done by the petitioner couple was not as per the legal mandate, however, this Court is of the view that the petitioner couple did not have any knowledge about the said illegality and therefore, they are not to be blamed for the wrongful adoption.
16. Furthermore, it has been duly admitted by the learned ASC as well as the Officiating Chairperson of the aforesaid committee that the petitioner couple may have developed the love and affection with the child who was adopted by them when she was only 21 days old. During the course of proceedings, it has also been submitted by the Officiating Chairperson of the aforesaid committee that the petitioner couple may be given the priority to adopt the child as they were oblivious to the fact that the said adoption centre was being run illegally and that the child has been living with them for the past 3.[5] months.
17. This Court has witnessed the plight of the petitioner couple present in the Court and is of the view that the petitioner couple has indeed developed love and affection for the adopted child. Further, the Officiating Chairperson of the aforesaid committee has not refuted to the fact that the petitioner couple were oblivious to the fact that the said adoption centre was being run illegally.
18. Therefore, taking into consideration the aforesaid submissions made by the leaned counsel appearing on behalf of the petitioner, the contention that the learned ASC and the Officiating Chairperson of the aforesaid committee have conceded to the fact that the petitioner couple may have developed the love and affection with the child, this Court is of the considered view that this is a fit case to exercise the powers under Article 226 of the Constitution.
19. Thus, in the interest of the child as well as the petitioner couple, on humanitarian grounds, this Court deems it appropriate to direct the concerned authorities to give first priority to the petitioner couple for adoption of the child in question.
20. In view thereof, the Officiating Chairperson of Child Welfare Committee, Hope Foundation, Matri Chaya (State Adoption Agency) is directed to take initiation for completion of the process for adoption of the said child to the petitioner couple expeditiously, preferably within a period of two weeks.
21. Accordingly, the instant petition is disposed of. Pending applications, if any, stands dismissed.