In a significant order, the Bombay High Court has observed that children, born to minor unwed mothers in rape cases, cannot be treated as "property" in the crime while considering requests from Child Welfare Committees to declare such children free for adoption.
Accordingly, Justices R M Borde and R V Ghuge quashed orders of a Child Welfare Committee which asked an adoption agency to seek NOC from court and permission from police to allow adoption of children born to unwed mothers who had been raped.
The High Court was hearing two separate petitions filed by Snehalaya Snehankur Adoption Centre which had applied to the Child Welfare Committee to give a declaration that such children, born to unwed mothers, were free for adoption.
Assistant government pleader told the court that the Child Welfare Committee had asked police to inform whether they would need the presence of children since they are born out of sexual violence, in respect of which act, an offence has been registered with the police. Besides, it was also awaiting a report from a probation officer.
The judges said, "Merely because children are born out of sexual violence to minor unwed mothers, it does not mandate calling of report from police as to whether they would need the children for investigation or for calling upon the adoption agency to produce a 'no objection certificate' from the competent court dealing with trial of offence."
"It must be understood that the police are concerned with the investigation of crime which is in the nature of sexual violence meted to a minor girl. Also, the court in a trial is concerned with the offence of sexual violence alleged against the accused," the judges said recently.
Considering the applications, tendered by adoption agency seeking a declaration from the committee that the children are free for adoption, those children, who are born to unwed minor mother out of sexual violence, cannot be treated as "property" involved in the crime," the bench said.
"There is no role of police or court in a criminal trial relating to sexual violence, in the matter of grant of declaration by the committee that the children are free for adoption. We are of the opinion that the committee has not exhibited sensitivity, as contemplated by the government in its policy on children in 2003," they said.
The judges further said, "It must be understood that what is pending before the sessions court is criminal trial concerning act of sexual violence committed by the accused against the unwed minor mother of the child."
"The birth of the child and subsequent procedure, which is required to be followed under the provisions of Juvenile Justice (Care and Protection of Children) Act, is not connected with the trial pending before the Sessions Court."
It is to be noted that in view of subrule (9)(c) of Rule 78, the Child Welfare Committee is obliged to issue a release order declaring that the child is legally free for adoption, within a period of six weeks from the date of application in case of children below the age of two years, the judges said.
In the instant matters, the children are surrendered and as contemplated by subrule (10)(c) of Rule 78, the adoption agency was competent to make an application directly to the Board for giving the child in adoption, the bench said.
It is for the adoption agency to wait for completion of two months reconsideration period to be given to the biological parent or parents. "In the instant cases, it does appear that sufficient time had been given to biological parents for reconsideration", the judges said.
The bench noted that the committee had fallen in error in adopting the procedure in calling report from the probation officer, which is required for issuance of a declaration that the child is abandoned and certifying him as legally free for adoption. No such procedure is envisaged for granting certification in favour of the adoption agency in case the child is surrendered, the judges remarked.
In both these petitions, the children are surrendered by their respective unwed minor mothers through their guardians. The committee, in such circumstances, is obliged to pass order within six weeks from the date of application, the bench said.
"The committee has fallen in error in calling upon the petitioner adoption agency to produce a NOC from the criminal court. Apart from this, orders passed by committee are too vague," the judges said while quashing them.
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