IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 19176 of 2008(G) -------------------------- PETITIONER(S): --------------- SHEENA FRANCIS, W/O. FRANCIS, PANAMKUZHACKAL HOUSE, PADINJATTUM BAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM DT. BY ADV. SRI.T.MADHU SRI.SAJI JACOB RESPONDENT(S): --------------- 1. THE DIRECTOR, ST. JOSEPH'S CHILDREN HOME, KUMMANNUR.P.O, KIDANGUR, KOTTAYAM DT. 2. UDAYAN, S/O. KUTTAPPAN, MUTHELIYIL HOUSE, ATHIRAMPUZHA.P.O, KOTTAYAM. 3. LAILA, W/O. BASHEER, KOCHALUNGAL VEEDU, KUMARANELLUR, KOTTAYAM. 4. JUVENILE JUSTICE BOARD, THIRUVANCHUR, KOTTAYAM. BY GOVERNMENT PLEADER SRI.GIKKU JACOB ADV. SRI.P.GOPAKUMARAN NAIR FOR R1 SRI.C.S.DIAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ W.P(C). No.19176 of 2008 ------------------------------------- Dated this the 29th day of January, 2009 JUDGMENT Petitioner, a woman, has come to this Court aggrieved by the order passed by the Chie Judicial Magistrate, Kottayam holding that the petitioner has not substantiated her claim that she is the biological mother of a child by name Nelson @ Lalu, who is admitted to the 1st respondent's institution. 2. According to the petitioner, the child named Nelson @ Lalu is a child born to her in her intimacy with the 2nd respondent. According to the petitioner, the 2nd respondent acting in collusion with a woman, who described herself in the name and address of the 3rd respondent had surrendered her child to the 1st respondent's institution. The 1st respondent's institution takes the stand that respondents 2 and 3 had surrendered the child to the institution claiming to be the biological parents of the child. The child is thus in the custody of the 1st respondent. The petitioner claiming to be the biological mother of the child staked a claim that the child may be released to her. That petition must have been considered by the Child W.P(C). No.19176 of 2008 2 Welfare Committee. It is submitted that at the relevant time the Child Welfare Committee had not been constituted and the learned C.J.M, who in the absence of the Child Welfare Committee was obliged to consider such application, had proceeded to pass the impugned order describing himself to be the Principal Magistrate of the Juvenile Justice Board. When the petition came up for hearing the petitioner was not present and the impugned order, it is seen, is an order passed by default. Though there is reference to a report of the District Probation Officer, the learned C.J.M does not appear to have considered the question as to whether the petitioner is the biological mother of the child in any detail. 3. The petitioner claims to be aggrieved by the impugned order. The petitioner contends that her claim must have been properly disposed of by the Child Welfare Committee under Section 33 of the Juvenile Justice (Care and Protection of Children) Act. She has not received the consideration to which she is entitled on a crucial issue like the instant one. It is prayed that the Child Welfare Committee may be directed to consider the request of the petitioner in accordance with law under Section 33 of the said Act. W.P(C). No.19176 of 2008 3 4. Respondents 1 and 2 have been served. The 3rd respondent could not be served as it is reported that she is a fictitious person. Thereupon the petitioner wanted the 3rd respondent to be deleted from the array of parties. The 2nd respondent though served, has not entered appearance. The 1st respondent has entered appearance through counsel. 5. After discussions at the Bar, there is fair acceptance of the fact that appropriate orders on merits and in accordance with law has to be passed by the Child Welfare Committee under Section 33 of the Juvenile Justice (Care and Protection of Children) Act. 6. In the circumstance of the case, I direct the Child Welfare Committee to pass appropriate orders as expeditiously as possible. The learned C.J.M shall forthwith transmit the files in C.M.P No.42 of 2007 to the Child Welfare Committee. 7. It is submitted that the child is now in the custody of the 1st respondent. The 1st respondent shall be permitted to keep the child in their custody until a decision is taken by the Child Welfare Committee. Until then, the child shall be kept with the 1st respondent and custody of the child shall not be handed over to anyone. It is submitted that a person claiming to be the 3rd W.P(C). No.19176 of 2008 4 respondent is appearing before the 1st respondent even now and visiting the child. The 1st respondent shall ascertain all relevant details of such person and furnish the same to the Child Welfare Committee. The 1st respondent has a grievance that the petitioner, who they suspect to have some mental ailment, is causing inconvenience and embarrassment to the proper functioning of the 1st respondent. The petitioner can approach the Child Welfare Committee for visitation rights and the Child Welfare Committee till final orders are passed in the application under Section 33 of the Act shall pass appropriate orders and make necessary arrangements to facilitate visit of the child by the petitioner herein. 8. This Writ Petition is allowed to the above extent. 9. Hand over a copy of this judgment to the learned counsel for the petitioner for production before the learned C.J.M, Kottayam. Communicate copy to the learned C.J.M and the Child Welfare Committee. (R.BASANT, JUDGE) rtr/-