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In a custody battle between the biological and the adoptive mother of a child, Madras High Court  granted the custody to her adoptive mother.

Justices PN Prakash and R Hemalatha also directed the biological mother who is the sister-in-law of the adoptive mother free access to the child, during weekends.

The Court further opined that the child in question was not orphaned, in need of care and protection. On the contrary, said the court, she has two mothers viz., who are fighting with each other to give her care and protection and thus, this matter should not have been brought to the police station at all.

Sathya and Sivakumar were siblings. Sivakumar got married to Saranya and Sathya was given in marriage to Ramesh. Since Sathya-Ramesh were childless for a long time, Sivakumar's daughter Abi was given in adoption to them, when she was hardly 3½ months old, sometime in the year 2012.

After Ramesh died of cancer in 2019, the relationship between Ramesh's family and Sivakumar's family soured.

Alleging that Sathya was not permitting the Saranya-Sivakumar couple free access to Abi, Saranya filed a complaint dated in October 2021. 

Both the mothers, biological and adoptive, also approached the High Court seeking custody of the child.

While conducting enquiry, both the sides were brought to the police station and the Child Welfare Committee (CWC), Salem was informed accordingly.

The CWC, Salem, by a reception order, admitted Abi in Government Lifeline Trust, Reception Home, Salem.

"Thus, the CWC successfully took away the custody of the child, which was normally growing in the family of the adopted parents and branded it as a child in need of care and protection and handed the child over to the Lifeline Trust, by a mere reception order, without any reasons in support thereof.", remarked the Court.

After hearing the parties, the High Court had referred the matter to the Mediation and Conciliation Centre for conciliatory talks.

During the mediation proceedings, it came to light that Abi has great love for both Sathya and Saranya;  and she wanted all of them to live together so that she can play with her natural siblings viz., Kavya and Oviya. Even according to Saranya, Abi was given in adoption to Sathya, when she was hardly 3½ months old, noted the Bench.

The Court thus opined that it was not proper on the part of the police to have entertained a complaint from Saranya, conducted an enquiry, branded Abi as a child in need of care and protection and kept her in a Home.

"The police should have directed the parties to settle the matter before the civil Court and if Saranya was disputing the adoption, it was for her to seek redress under the Guardianship and Wards Act, 1890, or for seeking a declaration that the adoption is null and void. The police ought not to have interfered with in a case of this nature, removed Abi, who was under the care and custody of Sathya for about 10 years and lodged her in a Home.", it said.

The Court further found that the police and the CWC had acted beyond the scope of the Juvenile Justice (Care and Protection of Children) Act, 2015, by mechanically lodging Abi in the said Home.

"...the removal of the child by the CWC from the custody of Sathya based on the police complaint of Saranya, lodging of the child by the CWC in the said Home and thereafter, handing over the custody of the child to Saranya, are clearly illegal", held the High Court.