Observing that the court may not let the law defeat the ends of justice, the Allahabad high court has granted custody of a nine-year-old girl to a woman from whom she was taken away "perhaps" because she already had four children of her own.
A division bench of Justice Saumitra Dayal Singh and Justice Manjive Shukle observed in its order issued on Monday that taking a child by way of adoption or foster care is neither contrary to the practices prevailing in societies nor is something to be looked down upon.
The writ petition had been filed by a woman, named Meena, against a December 13, 2022 order of the Child Welfare Committee, Fatehgarh, Farrukhabad, whereby she was deprived of the custody of the child.
"Adoption application that may be made by the petitioner may be considered in accordance with law. At the same time, the observations made in this order would govern the peculiar facts of this case as may not allow law to defeat the ends of justice that far outweigh the concerns of law." said the court in its order on Monday
According to the details of the case, the child was handed over Meena on November 28, 2014 when it was just a few days old by a third gender person, namely, Arjun alias Anjali.
The petitioner, who has four grown-up children of her own (three of them married with kids), took care of the child without any objection either by any state authority or by any third person till October 11, 2021.
But on that date, according to the petitioner, the child was abducted by Arjun alias Anjali. Meena moved the CWC.
After her complaint, the child was rescued on November 21 that year and returned to the custody of the petitioner a month later on December 22 after counselling.
On October 20, 2022, the district probation officer submitted a report to the Agra district magistrate, based on which the child was taken away from Meena and lodged at the Rajkiya Balika Grih, a government facility at Agra.
"Unfortunately, the district probation officer has mechanically made his report perhaps being swayed by the fact that the petitioner has four children born to her," the court observed.
"Therefore, in the opinion of the district probation officer, the petitioner may have been ineligible in law to take X (the child) in adoption. While the law could not prevent the petitioner from giving birth to another child, it has been relied upon to deprive the petitioner from bringing up another child as her own," it observed.
The court further said, "While we are not in a position to undo what law and the law-enforcement agencies have unknowingly let X suffer. At the same time, in the best interest of X, we allow the writ petition with a few directions."
"Subject to the petitioner applying for the adoption of X, which she undertakes to apply for within a period of one week from today, let custody of X be given over to the petitioner forthwith ie, not later than an hour when she reaches the CWC with a copy of this order." the court added.
"At the same time, subject to such compliance made by the petitioner, the District Probation Officer may remain within his jurisdiction to submit periodical reports with respect to development of X initially on a monthly basis for the period of first six months and thereafter as and when required by law," it said.
