Adarsh Parthan and Usha T.A v The Local Level Committee (Under the National Trust Act), Ernakulam and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ## **`WP(C) NO. 36682 OF 2023`** ## **`PETITIONER :-`** ``` 1ADARSH PARTHAN, AGED 43 YEARS S/O. GOKUL DAS, ESAVASYAM, THAMARAYOOR POST, HARIDAS NAGAR, GURUVAYOOR, THRISSUR, PIN – 680505 2USHA T.A, AGED 64 YEARS ESAVASYAM, THAMARAYOOR POST, HARIDAS NAGAR, GURUVAYOOR, THRISSUR, PIN – 680505 ``` ``` BY ADV ANJANA KANNATH ``` ## **`RESPONDENTS :-`** ``` 1THE LOCAL LEVEL COMMITTEE (UNDER THE NATIONAL TRUST ACT), ERNAKULAM, R EPRESENTED BY ITS CHAIRMAN- DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM, PIN – 682030 2THE CHAIRMAN LOCAL LEVEL COMMITTEE (UNDER THE NATIONAL TRUST ACT), COLLECTORATE, ERNAKULAM, PIN – 682030 3JAYALAKSHMI, AGED 41 YEARS PADINJATEDATH HOUSE, AKG ROAD, PERUVARAM WEST, N. PARAVUR, PIN – 683513 BY ADVS. ADVOCATE GENERAL OFFICE KERALA SOJAN MICHEAL . K.R.RANJITH, GOVERNMENT PLEADER WITH STATE ATTORNEY() V.S.BOBAN(K/957/2001) JENCY MICHEAL(K/562/1992) CHACKO SIMON(K/752/2012) SRI.V RAMKUMAR, AMICUS CURIAE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WP(C) No.36682 of 2023 ## **C.S.DIAS,J** ## **====================== WP(C) No.36682 of 2023** ## **----------------------------------Dated this the 15[th] day of January, 2024** ## **JUDGMENT** The writ petition is filed to direct the 1[st] respondent to consider and dispose of Ext.P1 application within a time period fixed by this Court. 2. The first petitioner is the father of a five year old boy named Sreehari and the second petitioner is the mother of the first petitioner. The child Sreehari (‘child’ for short), is suffering from autism as defined under Section 2(a) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Act for brevity). The marriage between the first petitioner and the third respondent is strained. As the third respondent is not providing proper medical treatment to the child, the first 3 WP(C) No.36682 of 2023 petitioner has been constrained to approach the first respondent – the Local Level Committee constituted under the Act, to appoint the second petitioner as the guardian of the child. Even though the child was taken to a counselling centre, there is no improvement in the child’s mental development. The first petitioner is convinced that the child has lost his abilities to react and pronounce words. In the above circumstances, the petitioners were constrained to file Ext.P1 before the first respondent. Although the application was filed two months back, no effective steps have been taken to adjudicate the application, which is causing prejudice to the petitioners. Hence, this writ petition. 3. The third respondent has filed a counter affidavit, inter alia, denying the assertions in this writ petition. She has stated that the first petitioner has already filed Guardian O.P.No.1129/2023 before the Family Court, North Paravur, to him as the legal guardian of the child. Therefore, it is not proper for the 4 WP(C) No.36682 of 2023 petitioners to approach a statutory authority when the matter is sub judice before the competent Court. The Act is principally to protect the children who are abandoned or when both parents fail and neglect to look after the child. The third respondent and her older daughter are trained to look after to the child. The third respondent has availed 16 hours special leave in a month to take care of the child. It is confirmed that the child is only suffering from autism. The child is being treated at Jivadhara Institute of Neuro Development and Research Centre at Malayattoor. The course of treatment is for a period of three years. If the course is stopped midway, it would adversely af ect the best interest of the child. The third respondent has been advised to appoint a full time special experienced trainer by paying Rs.30,000/-. The child is also undergoing 12 days treatment continuously (Aqua Puncture & Homeo Medicine). There are five other cases pending between the parties before the Family 5 WP(C) No.36682 of 2023 Court. In fact, the first petitioner was granted interim custody of the child pursuant to the orders of the Family Court. The writ petition is totally frivolous and is only to be dismissed. 4. Heard Smt.Anjanna Kannath, the learned counsel for the petitioner, Sri.K.R.Ranjith, the learned Government Pleader appearing for respondents 1 and 2 and Sri.Sojan Micheal, the learned counsel appearing for the third respondent. 5. On an evaluation of the pleadings and materials on record, it is evident that the first petitioner has already moved the Family Court by filing OP No.1129/2023 to appoint him as a legal guardian of the child. It is during the pendency of the above proceedings, the petitioner has preferred Ext P1 petition for an identical relief, to appoint his mother – the second petitioner – as the legal guardian of the child as per the provisions of the Act. Thus, the petitioners themselves have sought for the same relief before the two Forums. 6 WP(C) No.36682 of 2023 Indisputably, there are five other cases between the parties pending before the very same Family Court and the first petitioner has been granted interim custody of the child. 6. Recently, this Court in **Abootty vs. Kolangottil Pathumma [2023 (6) KLT 368]** while dealing with the provisions of the Rights of Persons with Disabilities Act and Rules framed thereunder, taking into consideration the provisions of the Act has gone on to hold that both the District Courts and designated Authority have concurrent jurisdiction to deal with the applications filed under the Act. Even though there may not be an analogous provision in the present Act, the fact remains that the relief sought for in both the proceedings is to appoint the petitioners as legal guardians of the child. Ultimately, what is to be looked into is who would be the best person to secure the paramount welfare and best interest of the child. 7 WP(C) No.36682 of 2023 7. Viewed in the above background, to save precious judicial time, multiplicity of proceedings , conflict of decisions and also inconvenience of the parties, I am of the definite view that interest of justice would be met by ordering Ext P1 petition to be transferred from the first respondent so that the same can be consolidated and jointly tried along with the other proceedings. Recently, this Court has gone on to hold that proceedings under the Domestic Violence Act pending before the jurisdictional Magistrates, can be tried by the Family Courts. Drawing analogy from the aforesaid decisions and in exercise of the plenary powers of this Court under Article 226 of the Constitution of India read with Sec.24 of the Code of Civil Procedure, I deem it appropriate, particularly taking into account the paramount welfare and best interest of the child and also the proceedings conducted by the first respondent is summary in nature and on the contrary the proceedings under the Guardian and 8 WP(C) No.36682 of 2023 Wards Act is inquisitorial, I am of the view that interest of justice would be met by ordering the transfer of Ext P1 from the first respondent to the Family Court. In the result, the writ petition is disposed of in the following manner: (i) Ext P1 proceedings pending before the first respondent is hereby withdrawn and transferred to the Family Court, North Paravur. (ii) The Registry is directed to forward a copy of this judgment to the first respondent with instructions to forthwith transfer Ext P1 proceedings to the Family Court, North Paravur. (iii) The Family Court, North Paravur, shall immediately on receipt of the records in Ext P1 proceedings, post Ext P1 along with OP No.1129/2023, and number the proceedings as guardian original petition. (iv) The parties would be at liberty to move the Family Court, North Paravur, and seek for consolidation and joint trial of the two original petitions. - (v) The parties would also be at liberty to file interlocutory applications for interim reliefs. 9 WP(C) No.36682 of 2023 (vi) Taking into account the peculiar facts and circumstances of the case, the Family Court, North Paravur, is directed to consider and dispose of Ext P1 and OP No.1129/2023 , in accordance with law and as expeditiously as possible, within an outer time period of one year from the date of receipt of Ext P1. Sd/- **C.S.DIAS, JUDGE** ## **SMA** 10 WP(C) No.36682 of 2023 ## **`APPENDIX OF WP(C) 36682/2023`** ``` PETITIONER EXHIBITS :- ``` ``` Exhibit P1TRUE COPY OF THE PETITION DATED 30.08.2023, FILED BEFORE THE FIRST RESPONDENT ```