Janaseva Sisubhavhan v. Child Welfare Committee, Ernakulam & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WA.No. 1070 of 2010() --------------------AGAINST THE JUDGEMENT/ORDER IN WPC.14864/2010 Dated 28/05/2010 .................... APPELLANT(S): PETITIONER. ------------------------- JANASEVA SISUBHAVAN,P.O BOX,107 NEAR U.C COLLEGE, ALUVA, REPRESENTED BY ITS PRESIDENT, JOSE MAVELI. BY ADV. SMT.P.A.ANITHA RESPONDENT(S): RESPONDENTS. --------------------------- 1. THE CHILD WELFARE COMMITTEE, ERNAKULAM REPRESENTED BY ITS CHAIRMAN, O/O.THE CHILD WELFARE COMMITTEE, JUVENILE HOME, KAKKANAD, KOCHI-30. 2. STATE OF KERALA,REPRESENTED BY THE SECRETARY, DEPARTMENT OF SOCIAL WELFARE THIRUVANANTHAPURAM - 695 001. 3. THE SUPERINTENDENT, GOVERNMENT CHILDREN'S HOME, KAKKANAD,KOCHI-30. 4. JOSEPH, VODAI STREET, 2ND LANE, UTTAMAPALAYAM (TP) THENI, 625 531, TAMIL NADU. 5. ALPHONSE, W/O. JOSEPH, -DO- -DO-. SR.GOVERNMENT PLEADER SMT.K.MEERA FOR R1 TO R3 ADVOCATE SRI.P.K.SURESH KUMAR FOR R4 AND R5. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------W.A.No.1070 of 2010** ## **----------------------------------------Dated this the 25[th] day of June, 2010** ## **JUDGMENT** ## _**J.Chelameswar,C. J.**_ The instant appeal is preferred by the petitioner in W.P(C) No.14864 of 2010 which came to be disposed of by judgment dated 28-5-2010. The above mentioned writ petition was heard and disposed of along with another writ petition, W.P(C)No.16372 of 2010. 2. The factual background in which the above two writ petitions came to be filed is as follows. The appellant is a voluntary organisation which takes care of destitute children. The custody of a child, who is not represented in the writ petition, is the subject matter of dispute in this litigation. Respondents 4 and 5 are stated to be the parents of the said child. 3. The above mentioned un-named child was directed to be lodged in the Government Children's Home by the Child Welfare Committee, Ernakulam functioning under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, by Ext.P5 order dated 7.5.2010. It appears from the records that the said child was actually produced before the Child Welfare Committee by the appellant herein. The factual background in which the said production of the ## **W.A.No.1070 of 2010** ## -:2:- child came to take place may not be necessary for us to go into for the purpose of the present appeal. The grievance of the appellant in the writ petition as well as in the instant appeal is that the above mentioned Child Welfare Committee has not followed the appropriate procedure of law before taking a decision of entrustment of the child to the Government Children's Home. 4. Respondents 4 and 5 herein filed W.P(C)No.16372 of 2010 praying that the above mentioned child be restored to their custody. By judgment under appeal the learned Judge disposed of both the writ petitions holding that the child be restored to the custody of the parents. In coming to such a conclusion the learned Judge placed reliance upon a judgment of this Court in _**Jose Maveli v. State of Kerala**_ , 2007 (2) KLT 761, which held that unless the parents of a child are found to have statutory disqualifications, the child cannot be termed as a 'child in need of care and protection'. 5. The Juvenile Justice Act deals with 'children in need of care and protection' and also 'juvenile in conflict with law'. A “child in need of care and protection” is defined under section 2(d) of the Act as follows:- - _“2(d) “child in need of care and protection” means a child, - (i) who is found without any home or settled place or abode and without any ostensible means of_ ## **W.A.No.1070 of 2010** ## -:3:- _subsistence,_ - _(ii) who resides with a person (whether a guardian of the child or not) and such person -_ - _(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or_ - _(b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person,_ - _(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,_ - _(iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child._ - _(v) who does not have parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable inquiry._ - _(vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts._ - _(vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking._ - _(viii) who is being or is likely to be abused for unconscionable gains._ ## **W.A.No.1070 of 2010** ## -:4:- _(ix) who is victim of any armed conflict, civil commotion or natural calamity.”_ Chapter III of the Act deals with the 'child in need of care and protection'. Section 29 contemplates the constitution of a Child Welfare Committee by the State Government. Section 31 of the Act prescribes the powers of the Child Welfare Committee. Section 32 stipulates that any child in need of care and protection may be produced before the Committee by any one of the persons specified in section 32. Section 32 reads as follows:- - _“32. Production before Committee.-_ - _(1) Any child in need of care and protection may be produced before the Committee by one of the following persons:-_ - _(i) any police officer or special juvenile police unit or a designated police officer;_ - _(ii) any public servant;_ - _(iii) childline, a registered voluntary organisation or by such other voluntary organisation or any agency as may be recognised by the State Government._ - _(iv) any social worker or a public spirited citizen authorised by the State Government._ ## **W.A.No.1070 of 2010** -:5:- - _(v) by the child himself._ - _(2) The State Government may make rules consistent with this Act to provide for the manner of making the report to the police and to the Committee and the manner of sending and entrusting the child to children's home pending the inquiry.”_ Section 33 contemplates an enquiry by the Committee before the Committee passes any order regarding custody of the child produced before it. Such an enquiry is required to be conducted in the manner prescribed by the rules framed under the Act and the State of Kerala framed appropriate Rules known as the Kerala Juvenile Justice (Care & Protection of Children) Rules, 2003. 6. Rule 11 thereof specifies the procedure to be followed at the enquiry contemplated under section 33. Apart from the prescription of the rules, it goes without saying, the basic fact to be ascertained in such an enquiry is whether the child brought before the Committee is a child in need of care and protection, within the meaning of the said expression as defined under the Juvenile Justice Act. In other words, whether the child is found without any home or settled place or abode and without any ostensible means of subsistence or whether such a child is residing with a person specified under clauses (a) and (b) of sub-section (ii) of section 2(d) etc. ## **W.A.No.1070 of 2010** -:6:- 7. In the context of the case where somebody comes forward claiming to be the parents of the child, necessarily the Committee is required to enquire into the bonafides of such claimant. Secondly, even if the Committee is satisfied with such claim of the parents, the Committee must be satisfied that the entrustment of the child to such claimants is in the best interests of the child. Recording of such satisfaction must necessarily be preceded by an appropriate enquiry into various facts. It is well settled in our law that in matters of custody of child the paramount consideration is the welfare of the child and nothing else. The grievance of the appellant is that the Committee Constituted under the Juvenile Justice Act in the State of Kerala is not making an appropriate enquiry in any one of these cases, but is acting in a peremptory manner. We do not propose to record987+ any finding in this regard in the instant case. We only take note of the allegations and nothing more. It remains on record that the learned Judge, by judgment under appeal, recorded a finding that the learned Judge observed the interaction of the 4[th] and 5[th] respondents with the child whose custody is in dispute and the learned Judge recorded his satisfaction that the relationship was affectionate. In the circumstances we do not see any reason to interfere with the judgment under appeal. However, we make it clear that the enquiry ## **W.A.No.1070 of 2010** -:7:- under section 33 of the Juvenile Justice Act is not a mere formality. It is required to be undertaken the ultimate aim of examining the question as to where the welfare of the child lay. With the above observation the appeal is disposed of at the admission stage. ## **J.CHELAMESWAR, Chief Justice** **P.N.RAVINDRAN, Judge.** **ahg.** **J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------W.A.No.1070 of 2010 ----------------------------** ## **JUDGMENT** **25[th] June, 2010**