1. With consent, heard finally.
2. This Habeas Corpus petition is filed for taking custody of the corpus namely Jeevika Gupta, who is aged about 2 years and 9 months, by contending that petitioner No.1 is the person, who has taken the corpus in adoption by way of Deed of Adoption dated 27.07.2021. Thereafter, the corpus is residing with petitioner No.1. Petitioner Nos.2 and 3 are biological parents of the corpus and they became petitioners herein to support the case of petitioner No.1.
3. The grievance of the petitioners is that on 28.04.2024 around 04:30 PM, two members representing them to be ‘Bal Rakshaks’ came with two constables and entered the house of petitioner No.1 forcibly and took the child from his custody. The said action is totally unauthorised and thereafter, the child is in custody of said respondents.
4. Learned counsel for the petitioner contends that the Deed of Adoption is valid and the respondents have no authority, jurisdiction and competence to take the child from custody of petitioner No.1. Further, the petitioners are entitled for compensation of Rs.10,00,000/- for the aforesaid action of the respondents.
5. Faced with this, the learned counsel for the respondent-State submitted that respondent Nos.2 and 3 received complaint regarding unauthorised custody of corpus by petitioner No.1 and on the basis of said complaint, action has been taken. He supported the action on the touchstone of Section 2 (14) (v) and Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act of 2015). He submitted that no fault can be found in the act of respondents and the corpus cannot be said to have been illegal confined.
6. The arguments of both parties are confined to the extent indicated above.
7. Before dealing with the contentions of both sides, it is apt to refer to Section 2 (14) (v) and Section 31 of Act of 2015, on which reliance is placed by the learned counsel for the respondents-State, which are reproduced as under:
“Section 2: Definition
(14) child in need of care and protection" means a child—
(i)…
(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or
Section 31: Production before Committee
(1) Any child in need of care and protection may be produced before the Committee by any of the following persons, namely:—
(i) any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer of District Child Protection Unit or inspector appointed under any labour law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-governmental organisation or any agency as may be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing home, hospital or maternity home:
Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.
(2) The State Government may make rules consistent with this Act, to provide for the manner of submitting the report to the Committee and the manner of sending and entrusting the child to childrens home or fit facility or fit person, as the case may be, during the period of the inquiry.”
8. A conjoint reading of aforesaid makes it clear that a child can be said to be ‘in need of care and protection’ provided the parent, who has a custody of said child is found to be ‘unfit’ or ‘incapacitated’ by Committee or the body to care for and protect the safety and well being of the child. Thus, finding of Committee is sine qua non whether parent is ‘unfit’ or ‘incapacitated’. Putting it differently, unless the Committee takes a decision that the parent/guardian of the corpus is ‘unfit’ or ‘incapacitated’, the child cannot be said to be “in need of care and protection”.
9. Despite our repeated query, the learned counsel for the State could not show us any enabling provision pursuant to which respondent Nos.2 and 3 could have forcibly taken the corpus from the custody of petitioner No.1. 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 learned counsel for the State is directed to communicate this order to respondent Nos.2 and 3 during the course of the day. This order will not come in the way of respondents to proceed against petitioner No.1 if law so permits. So far the claim of compensation is concerned, in this Writ Petition, we are not inclined to enter into the said aspect. In order to decide the aspect of compensation various ingredients are required to be looked into. We are only inclined to give liberty to the petitioner to avail appropriate remedy under the civil law for the purpose of compensation.
10. With the aforesaid directions, this Writ Petition is disposed of.
11. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
