IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2009 C O R A M THE HONOURABLE Mr.JUSTICE S.NAGAMUTHU Writ Petition No.4436 of 2009 and M.P.Nos.1 to 3 of 2009 R.Arivazghagan ..Petitioner -Vs- 1. The Secretary to Government of Tamil Nadu, Social Welfare Department (Social Defence) Fort St. George, Chennai 9 2. Children Welfare Committee, rep. By its Chairman, Department of Child Welfare Defence, Government of Tamil Nadu, 300,P.H.Road, Kellys, Chennai.10 3. Mrs.Prabavathy @ Velankanni 4. Mr.David Selvlaraj 5.Mrs.Jayakumari ..Respondents . . . Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records relating to the proceedings of the second respondent in proceedings bearing C.W.C. Profile No.224/2008 and 225 of 2008 dated 30.12.2008, quash the same and consequently issue a mandamus to the respondents herein to restore the custody of minor children Sakthi Easwaran and Sakthi Saran to the petitioner. . . . For petitioner : Mr. T.T.Ravichandran For respondents : Mrs.Malarvizhi Udhayakumar, Spl.Govt.Pleader (R1 & R2) Mr.J.I.Rajkumar (R4 & R5) N A - R3 . . . https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is the biological father of the two children namely, Sakthi Easwaran and Sakthi Saran, who were born on 03.04.2007. His wife Mrs.A.Madhubala was suffering from Tuberculosis and so she was unable to maintain the children. Therefore, according to the petitioner, as a temporary arrangement, the children were handed over to the third respondent, Mrs.Prabavathy, who is closely known to them. It is further alleged that without their knowledge, the third respondent had handed over the children to the custody of respondents 4 and 5, who are professing Christianity. It is further stated that when the petitioner enquired, the third respondent told him that respondents 4 and 5 would keep the children safely and return them as soon as the wife of the petitioner recovered from illness. After some time, when the petitioner demanded the custody of the children, respondents 4 and 5 refused. On one occasion, when his wife went to see the children at the house of the respondents 4 and 5, she found that one child had burn injury in his left hand and the other child had minor bruise in his face. Since respondents 4 and 5 refused to hand over the children, the petitioner preferred a complaint to the police at Poonamallee on 07.10.2008. But no action whatsoever was taken on the same. Another representation was made on 24.10.2008 in this regard to the police. Acting on the complaint of the petitioner dated 07.10.2008, Poonamallee Police rescued the children from the custody of respondents 4 and 5 and brought them to the police Station. In the Police Station, during enquiry, respondents 4 and 5 claimed that there was an Adoption Deed executed by the petitioner and his wife on 19.07.2007 making a valid adoption in their favour and the children were also handed over to them. The petitioner and his wife refuted the same. Therefore, the police handed over the custody of the children to the Child Welfare Committee-Second respondent herein. The Committee, in turn handed over the children for custody to a shelter Home at T.Nagar, Chennai. 2. Thereafter, the 5th respondent filed H.C.P.1696 of 2008 before this Court, in which the petitioner and his wife were respondents 3 and 4, for production of the children and for handing over to the 5th respondent herein. In the affidavit, it was alleged by the 5th respondent herein that the children were given in adoption validly and from the date of the said Deed of Adoption, the children were in the legal custody of respondents 4 and 5. It was further alleged that the Deed of Adoption was executed on 19.02.2007 and the same was registered as Document No.1377 of 2007 on the file of the Sub Registrar, Poonamalle. 3. In the counter filed in the said H.C.P. it was contended by the petitioner and his wife that there was no valid Adoption and the Deed of Adoption produced before the Court was obtained by fraud as they were made to sign the said document without knowing the https://hcservices.ecourts.gov.in/hcservices/ contents of the same. Therefore, according to the petitioner, respondents 4 and 5 have no right to have the custody of the minor children. 4. During the hearing of the case, the children were produced before the Division Bench. After considering the rival claims, the Division Bench passed the following order: "After receipt of notice, the second respondent produced the minor children. The subject matter of the petition is with regard to custody of children and the dispute is between the natural and adoptive parents. Already a petition is pending before the first respondent-chairperson of the Child Welfare Committee constituted under Section 29 of the Juvenile Justice (Care and Protection of Children) Act,2000. Hence, we consider it appropriate to close the Habeas Corpus petition directing the petitioner to appear before the first respondent within two weeks from today and based on the order passed by the first respondent, the parties shall work out their remedy according to law and accordingly, the Habeas Corpus petition is closed." 5. In pursuance of the said order, enquiry was taken up by the second respondent during which the petitioner submitted his objections for the claim made by respondents 4 and 5 and wanted the children to be handed over to him. 6. The second respondent passed an order restoring the custody of the children to respondents 4 and 5 on certain conditions and after executing necessary bond. Accordingly, on 26.12.2008, respondents 4 and 5 executed a bond and took the custody of the children. 7. Thereafter, the petitioner once again filed H.C.P.2144/08 before this Court for production of the children and to hand over them to him alleging that the second respondent had handed over the children to respondents 4 and 5 without holding proper enquiry and without considering the rival claims. The said H.C.P. was admitted on 30.12.2008 and notice was ordered. When the writ petition came up for hearing on 19.01.2009, the second respondent herein produced its final order in CWC.Profile No. 224 of 2008 and 225 of 2008 dated 30.12.2008 passed under Section 39(3) and 42(1) and (2) of the Juvenile Justice (Care and Protection of children) Act 2000, thereby declaring respondents 4 and 5 as Fit Persons under Section 2 (1) of the Act and sending the children to the foster care basis under Section 42 (1) and (2) of the said Act. Recording the same, the Division Bench disposed of the H.C.P and directed the petitioner https://hcservices.ecourts.gov.in/hcservices/ to approach the appellate Authority if so advised. The petitioner has not filed any appeal against the said order of the second respondent dated 30.12.2008 and instead he has come forward with this writ petition challenging the said order. 8. The crux of the contentions of the petitioner in this writ petition is that the second respondent has not scrupulously followed the provisions of the Act and has acted in an arbitrary manner to hand over the custody of the children to respondents 4 and 5. It is further contended that there is no need to keep the children in the foster care as provided in Section 42(1) and (2) of the Act since the said provision would be applicable in respect of infants who are ultimately to be given for adoption. In this case, according to the petitioner, since there is no such proposal on the part of the second respondent to give the children for adoption, there is no question of keeping the children under foster care as provided under Section 42 (1) and (2) of the Act. The petitioner would further contend that the so-called adoption said to have been given by the petitioner and his wife in favour of respondents 4 and 5 is not true and therefore, the finding of the Committee that respondents 4 and 5 are fit persons to keep the custody of the children is not correct. Being the biological parents, the petitioner and his wife are entitled to have the custody of the children and therefore, according to him, the impugned order is liable to be set aside, it is contended. 9. In respect of the maintainability of the writ petition, it is the contention of the petitioner that though, of course, there is alternative remedy of appeal provided under Section 52 of the Act, since the impugned order is absolutely without jurisdiction, this writ petition is maintainable. 10. It is the contention of respondents 4 and 5 that adoption is true and valid and the Deed of adoption was executed with full consent. It is further contended that from the date of adoption the children were in their custody, and as a matter of fact, the name of the children were changed as Gladson and Giftson. But the children were illegally removed from their custody by the Police and handed over to the second respondent and thereafter, the second respondent has passed the impugned order handing over the children to them on ascertaining the entire facts and circumstances of the case in the interest of the welfare of the minor children. Therefore, according to respondents 4 and 5 , the writ petition is liable to be dismissed. 11. No counter has been filed by respondents 1 to 3. However, the learned Special Government Pleader made her submissions supporting the order passed by the second respondent. 12. I have considered the rival submissions and also perused the records thoroughly. https://hcservices.ecourts.gov.in/hcservices/ 13. Before going into the facts of the case, since the question of jurisdiction of the second respondent is mainly involved in this case, it is better to analyse this first: Section 2 (d) of the Act defines "the children in need of care and protection", which is as follows: "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 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 likelyhood 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 deceases or incurable diseased 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 non one is willing to take care of or whose parents have abandoned him or who is missing and runaway child and whose parents cannot be found after reasonable injury; (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, (ix) who is victim of any armed conflict, civil commotion or natural calamity." https://hcservices.ecourts.gov.in/hcservices/ 14. Chapter III of the Act deals with the child, who needs care and protection. Under Section 29 of the Act, the State Government is empowered to constitute a Child Welfare Committee. Section 31 of the Act deals with the powers of the Committee which states that the Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights. Section 32 deals with production of any child in need of care and protection before the Committee by authorities like the Police Officer etc. Under Section 33 of the Act, the Committee has been empowered to hold enquiry and pass an order to send the child to the Children's home for a speedy enquiry by a social worker or child welfare officer. Section 35 empowers the State Government to appoint Inspection Committees for the children's home and Section 37 deals with shelter homes and Chapter IV of the Act deals with rehabilitation and Social reintegration which is as follows: "Chapter IV. 40. Process of Rehabilitation and Social reintegration: The rehabilitation and social reintegration of a child shall begin during the stay of the child in a children's home or special home and the rehabilitation and social reintegration of children shall be carried out alternatively by (i) adoption,(ii) foster care, (iii) sponsorship and (iv) sending the child to an after-care organisation." 15. Section 41 of the Act deals with mode of giving adoption, which reads as follows: "41. Adoption: (1) The primary responsibility for providing care and protection to children shall be that of his family. 2) Adoption shall be resorted to for the rehabilitation of such children as are orphaned,abandoned, neglected and abused through institutional and non institutional methods. (3) In keeping with the provisions of the various guidelines for adoption issued from time to time by the State Government, the Board shall be empowered to give children in adoption and carry out such investigations as are required or giving children in adoption in accordance with the guidelines issued by the State Government from time to time in this regard. https://hcservices.ecourts.gov.in/hcservices/ 4) the children's homes or the State Government run institutions for orphans shall be recognised as an adoption agencies both for scrutiny and placement of such children for adoption in accordance with the guidelines issued under sub section (3). 5. No child shall be offered for adoption: (a) until two members of the Committee declare the child legally free for placement in the case of abandoned children, (b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and (c) without his consent in the case of a child who can understand and express his consent. 6) The board may allow a child to be given in adoption:- (a) to a single parent and (b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters." 16. Section 42 provides for foster care, which is as follows: "42. Foster Care: (1) The foster care may be used for temporary placement of those infants who are ultimately to be given for adoption. (2) In foster care, the child may be placed in another family for a short or extended period of time, depending upon the circumstances where the child's own parent usually visit regularly and eventually after the rehabilitation, where the children may return to their own homes. (3) The State Government may make rules for the purposes of carrying out the scheme of foster care program of children." 17. If the provisions are examined thoroughly, it would make manifestly clear that Chapter 3 and 4 of the Act, would be applicable only in respect of a child in need of care and protection and not in respect of other children who is a child in need of care and protection has been defined in Section 2(d) of the Act as extracted above. If only, a child falls within any of the definitions of the https://hcservices.ecourts.gov.in/hcservices/ term 'child in need of care and protection' as defined in Section 2 (d) of the Act, then such a child would be produced by the police under Section 32 of the Act before the Committee with a report. 18. Coming to the facts of the case, it is not as though the children in question were found without any protection or settled place of abode and without any ostensible means of subsistence. It is also not the case that children are likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts. It is not the case of any of the parties that the children in question would fall within any of the definitions of Section 2(d) of the Act. When there is a dispute regarding the right to custody of the children between the biological father and the foster parents, the said dispute has to be resolved only by appropriate civil Court. The police authorities have no power to take the children from the custody of the foster parents and hand over them to the Committee. Thus the very act of the Police in this case, taking the children from the custody of the respondents 4 and 5 is without jurisdiction. 19. Turning back to the scheme of the act, Section 33 speaks of power of enquiry by the Committee. After such enquiry, the Committee may pass an order to send the child to the Children's Home. In this case, accordingly, the children were sent to Home for safe custody. Thereafter, as directed by the Division Bench of this Court, the parties approached the second respondent and raised their respective claim. However, the Division Bench had no objection to give any finding as to whether the Committee has jurisdiction under the Act to proceed further to decide the dispute with regard to the custody. Since the children were in the Home as directed by the Committee, the Division Bench directed the parties to approach the Committee. At any rate, the second respondent cannot assume jurisdiction on the basis of the order of the Division Bench. 20. During the enquiry held, the Committee ought to have seen whether it has got jurisdiction under the Act to decide the question regarding the right to custody of the children or not. But the Committee has failed to do so. There can be no second opinion that the Committee will have no jurisdiction to decide the said question. Since the dispute is in respect of legal right to have custody between the biological parents and the foster parents, the Committee ought not to have ventured to decide the said disputed question as the same is not within its jurisdiction. The Committee ought to have referred the parties to resolve the said dispute before a competent Civil Court. 21. Curiously, in the impugned order the Committee declared the respondents 4 and 5 as "Fit persons" under Section 2 (i) of the Act and has directed the children to be in the "foster care" of the second respondent. Section 42(1) of the Act which deals with foster care can be pressed into service by the Committee, if only the https://hcservices.ecourts.gov.in/hcservices/ children in question are going to be given for adoption. But there was no such proposal on the part of the second respondent,Committee to give the children in question in adoption as provided under Section 41 of the Act in future. Therefore, the impugned order declaring respondents 4 and 5 as Fit persons and directing the children to be kept in the foster care is wholly without jurisdiction. Thus, looking from any angle, the impugned order is liable to be set aside. 22. In respect of the maintainability of the present writ petition, it is the contention of respondents 4 and 5 that since the order under challenge is appealable under Section 52 of the Act and since the said remedy is efficacious one , this Writ petition is not maintainable. It has been settled in a catena of decisions b y the Hon'ble Supreme Court that mere availability of alternative remedy would not oust the jurisdiction of the High Court under Article 226 of the Constitution of India. On the contrary, if such remedy more efficacious, the writ Court shall restrain itself from exercising its jurisdiction under Article 226 of the Constitution of India. At the same time, when the order under challenge is found to be wholly without jurisdiction, then there is no embargo for this Court to entertain the writ petition so as to drive the parties to resort to the alternative remedy. In the instant case, as I have already held since the impugned order is wholly without jurisdiction, I hold that this writ petition is maintainable. 23. As I have already stated, the question whether the adoption said to have been given in favour of respondents 4 and 5 by the petitioner is valid or not and whether the same is void , is a matter to be resolved only by the Civil Court on evidence. This Court cannot give any opinion regarding the same in this writ petition. Therefore, the parties can be only directed to approach the Civil Court in this regard. 24. It is contended by the learned counsel for the petitioner that until the petitioner approaches the Civil Court, the children may be ordered to be handed over to him and his wife. But the learned counsel for the respondents 4 and 5 would submit that since the children had been all along in their custody before the police took them and also after 26.12.2008 as per the order of the Committee,they may ordered to be in the custody of respondents 4 and 5. It is unfortune that there has been a legal fight between the biological parents of the children and the alleged foster parents of the children, before the forum which have got no jurisdiction to resolve the dispute. Admittedly, the children were only in the custody of respondents 4 and 5 until they were rescued by the police. Therefore, the order of the committee handing over the children to respondents 4 and 5 has to be set aside and the original position has to be necessarily restored. Therefore, the custody of the children have to be restored to respondents 4 and 5. https://hcservices.ecourts.gov.in/hcservices/ 25. At this juncture, learned counsel for the petitioner would submit that liberty may be given to the petitioner to approach the Civil Court and until then there may be a direction to respondents 4 and 5 not to remove the children out of the jurisdiction of this Court. According to him, there is likelyhood of the children being taken abroad. The learned counsel for respondents 4 and 5 would submit that respondents 4 and 5 shall not remove the children from and out of the jurisdiction of this Court. The said submissions of the learned counsel on either side are recorded. 26. In view of the foregoing discussions, the Writ petition is allowed; the impugned order of the second respondent is set aside and the children are restored to the custody of respondents 4 and 5 until the disputed question regarding the right to have custody of the children is settled by the Civil Court, whom the parties will approach to work out their remedies, if so advised. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. PAL To 1. The Secretary to Government of Tamil Nadu, Social Welfare Department (Social Defence) Fort St. George, Chennai 9 2. The Chairman, Children Welfare Committee, Department of Child Welfare Defence, Government of Tamil Nadu, 300,P.H.Road, Kellys, Chennai.10 + 1 CC To Mr.T.T.Ravichandran, Advocate SR NO.17955 + 1 CC to the Government Pleader SR NO.18054 + 1 CC To Mr.J.I.Rajkumar Roberts, Advocate SR NO.17391 W.P.No. 4436 of 2009 MS {CO} TP/6.5.2009. https://hcservices.ecourts.gov.in/hcservices/