IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WP(C).No. 14864 of 2010(G) --------------------------------------- PETITIONER: ------------------- JANASEVA SISUBHAVAN,P.O BOX,107 NEAR U.C COLLEGE,ALUVA, REPRESENTED BY ITS PRESIDENT,JOSE MAVELI. BY ADV. SMT.P.A.ANITHA. 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. 3. THE SUPERINTENDENT, GOVERNMENT CHILDRENS HOME, KAKKANAD,KOCHI-30. *ADDL. RESPONDENTS 4 AND 5 IMPLEADED: * 4. JOSEPH, AGED 45 YEARS, S/O. SAVARY, VODAI STREET, 2ND LANE, UTTAMAPALAYAM (TP), THENI – 625 531, TAMIL NADU. W.P.(C). NO.14864/2010-G: *5. ALPHONSE, AGED 40 YEARS, W/O. JOSEPH, -DO- -DO-. *ADDL. R4 & R5 ARE IMPLEADED AS ADDITIONAL RESPONDENTS AS PER ORDER DATED 26/05/2010 IN I.A. NO. 6603/2010. R2 & R3 BY GOVT. PLEADER SRI. P.N. SANTHOSH, ADDL. R4 & R5 BY ADV. SRI.P.K.SURESH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010, ALONG WITH W.P.(C). NO. 16372/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14864/2010-G: APPENDIX PETITIONERS' EXHIBITS & ANNEXURE: EXT.P.1: COPY OF THE CERTIFICATE OF RECOGNITION AS ORPHANAGE OF GIRLS. EXT.P.2: COPY OF THE LETTER DTD. 05/05/2010 FROM THE S.I. OF POLICE, ALUVA TO THE PETITIONER. EXT.P.3: COPY OF THE PETITION TO THE R.1. DTD. 05/05/2010. EXT.P.4: COPY OF THE ORDER OF DR. N. VIJAYAKUMAR DTD. 05/05/2010. EXT.P.5: COPY OF THE ORDER IN O.P. NO. 651/2010 DTD. 07/05/2010 OF THE R.1. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).NO.3821/2007 DTD. 22/03/2007. EXT.P.7: COPY OF THE PETITION DTD. 15/11/2008 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.8: COPY OF THE PAPER REPORT DTD. 30/04/2007. ANNEXURE 1: COPY OF THE ORDER DTD. 22/05/2010 ISSUED BY CHILD WELFARE COMMITTEE, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 14864 & 16372 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010 J U D G M E N T W.P. (C) No.14864/2010 was filed by Janaseva Sisubhavan, a voluntary organization which takes care of destitute children. One such a destitute children was entrusted to their custody. According to them, they have been taking good care of that child. That child is from Tamil Nadu and she became destitute in very unfortunate circumstances, which I do not want to detail in this writ petition, since that may effect the other proceedings in respect of the same. The 1st respondent in that writ petition, viz. the Child Welfare Committee, Ernakulam, initiated proceedings in respect of that child under the Juvenile Justice Act and directed that presently that child be lodged in the Government Children's Home. The petitioners in that writ petition filed this writ petition complaining that the 1st respondent is not deciding cases of destitute children in accordance with the Juvenile Justice (Care and Protection of Children) Rules, 2000. While so, the parents of the child came and requested for custody of the child before the Child Welfare Committee. By an order dated 21.05.2010, I directed the Child Welfare Committee to dispose of the application filed W.P.(C)Nos. 14864 & 16372 of 2010 -2- by the parents, on 22.05.2010 itself. When it was posted for hearing on that day, an order was passed by the Child Welfare Committee permitting the parents to have custody of the child till 25.05.2010. The parents were thereafter to handover custody of the child to the Superintendent, Government Girls' Home. On 24.05.2010 they directed the DPO Theni, Tamil Nadu District, to furnish information of fitness of the parents for restoration of the child. It is under the above circumstances the parents have filed W.P.(C) No.16372/2010 seeking the following reliefs: (i) issue a writ of mandamus or other appropriate writ, order or direction commanding the 2nd respondent to immediately restore the child who is the subject matter of Ext.P1 petition to the petitioners who are the parents of the child; (ii) quash Ext.P2 order by the issue of a writ of certiorari or other appropriate writ, order or direction 2. The counsel for the petitioners therein submits that, the issue involved in this writ petition is covered by the decision in Jose Maveli v. State of Kerala 2007 (2) KLT 761, wherein this court has categorically held that unless the parents has statutory disqualifications, a child with parents cannot be termed as a 'child in need and care of protection' as defined in the Juvenile Justice Act. The counsel submits that in view of that decision in so far as there is no statutory disqualification on the parents, they cannot be denied the W.P.(C)Nos. 14864 & 16372 of 2010 -3- custody of the child, notwithstanding the Juvenile Justice (Care and Protection of Children) Act & Rules. 3. I have heard the parties. On 21.05.2010, I had occasion to talk to the child. The parents of the child were also present in the court on that day. The child expressed desire to go along with her parents. I also had opportunity to observe the relationship between the parents and the child which appeared to be very loving and affectionate. As such, I do not think that the parents be refused custody of the child any longer, especially since they are coming from Tamil Nadu and staying here for several days, which considering their financial condition, they can ill afford. Therefore I feel that the custody of the child can be given to the parents. Accordingly the parents shall appear before the Child Welfare Committee, Ernakulam tomorrow (29.05.2010) on which date, the Child Welfare Committee shall pass orders releasing the child to the parents of the child forthwith. 4. As far as W.P.(C ) No.14864/2010 is concerned, in view of the above direction, the contentions raised by the petitioner in that writ petition need not be considered at all. The learned counsel for the petitioner seeks for a considered decision in respect of the contentions raised. I do not think that this is an appropriate to consider the same W.P.(C)Nos. 14864 & 16372 of 2010 -4- in view of the order I have already passed. Accordingly that writ petition is closed reserving the right of the petitioner therein to raise those contentions in a more appropriate case. The W.P.(C) No.16372/2010 is allowed as above. S. SIRI JAGAN JUDGE shg/