Mumbai: 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 RM Borde and RV 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.