IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).No. 16738 of 2010(Q) -------------------------- CMP.432/2009 of C.J.M.,TRIVANDRUM .................... PETITIONER: --------------- KUTTA, AGED 48, D/O.SARASU, GOVINDAPURAM, RAILWAY PURAMBOKKU, PALAKKAD. BY ADV. SRI.P.PUSHPARAJAN SRI.SREEVALSAN.V RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. MUTHUMARI, AGED 15, GOVINDAPURAM, RAILWAY PURAMBOKKU, PALAKKAD. 3. MEENAKSHI, AGED 13, GOVINDAPURAM, RAILWAY PURAMBOKKU, PALAKKAD. 4. MAHILA MANDIR, REPRESENTED BY ITS SECRETARY, POOJAPURA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.S.U.NAZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------- W.P.(C).No.16738 of 2010 -------------------------------------- Dated this the 11th day of June, 2010 JUDGMENT I heard the learned counsel for the petitioner as well as the learned Government Pleader. 2. The petitioner, who claims to be the mother of two minor girls namely Muthumari and Meenakshi (respondents 2 and 3) aged 15 years and 13 years respectively, challenges Ext.P4 order dated 31/12/2009 passed by the Chief Judicial Magistrate, Thiruvananthapuram dismissing C.M.P.No.432 of 2009 filed by the petitioner claiming custody of the minor children. 3. The case of the petitioner can be summarised as follows: The petitioner along with her diseased husband Mayandi were residing in the railway puramboke at Govindapuram in Palakkad and the two minor children Muthumari and Meenakshi were students of the SVUP School, Vadakkencherry. The father and grandfather of the minor children were conducting a garment business at the railway station, Palakkad. While so, the two minor children along with W.P.(C)No.16738/2010 : 2 : their grandfather reached Thiruvananthapuram railway station in connection with the garment business. When the grandfather went out of the platform for purchasing food and returned to the platform he found the children missing. Subsequently the petitioner has come to know that her minor daughters are inmates of Mahila Mandir, (4th respondent) Poojapura since 16/10/2009. It was learnt that the children were placed in the custody and care of the fourth respondent, Mahila Mandir as per orders of the Chief Judicial Magistrate. Thereupon the petitioner filed C.M.P.No.432 of 2009 before the Chief Judicial Magistrate for the release and custody of the minor children. As per the impugned order dated 31/12/2009 the learned Chief Judicial Magistrate dismissed the said petition. Hence this petition. 4. Going by the order of the Chief Judicial Magistrate the two minor children were seen wandering in the Thampanoor Bus Stand after having arrived at Thiruvananthapuram by train along with someone cited as their grantfather. He was presumably under the influence of liquor and had abandoned the children who were found by the W.P.(C)No.16738/2010 : 3 : police, who produced them before the Chief Judicial Magistrate who, in turn, directed their admission into the fourth respondent, Mahila Mandir at Poojapura. 5. There cannot be any doubt that the minor girls are in need of care and protection and therefore ought to have been produced before the Child Welfare Committee constituted under Section 29 of Juvenile Justice (Care & Protection of Children) Act, 2000 (herein after referred to as “JJ Act” for short). As per Rule 10(2) (iv) of the Kerala Juvenile Justice (Care and Protection of Children)Rules, 2003, when a child in need of care and protection has been produced before the Committee, the committee shall make all arrangements to send the children to a childrens' home pending enquiry and under Clause 3 of Rule 10(2)(iv), the Committee has to make every effort to trace and associate the family of the child after taking the assistance of a recognized voluntary organisation etc. Instead of straightaway dismissing the application filed by the petitioner the Chief Judicial Magistrate should have referred the case to the committee of which he is the Chairperson and all attempts should have been made to trace W.P.(C)No.16738/2010 : 4 : the family of the children. Without doing so, it was not permissible for the Chief Judicial Magistrate acting by himself to reject the application by the petitioner's mother. The matter is accordingly remitted to the Chief Judicial Magistrate with a direction to refer the case pertaining to the two minors to the Child Welfare Committee for appropriate action under the JJ Act and the Rules. I am fortified in this connection by the decision in Jose Maveli Vs. State of Kerala (2007 KHC 545). This Criminal M.C. is disposed of as above. V.RAMKUMAR, JUDGE skj