IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 23668 of 2010(G) -------------------------- PETITIONER(S): --------------- 1. JANASEVA SISUBHAVAN, P.O.BOX 107, NEAR U.C.COLLEGE, ALUVA, REPRESENTED BY ITS GENERAL SECRETARY, INDIRA SABARINATH. 2. THANKAMMA, THAMBUPPARA HOUSE, OZHUKUPARA, VATTAPPARA, THIRUVANANTHAPURAM. BY ADV. SMT.P.A.ANITHA RESPONDENT(S): --------------- THE CHILD WELFARE COMMITTEE, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, O/O.THE CHILD WELFARE COMMITTEE GOVERNMENT CHILDREN'S HOME, POOJAPPURA, THIRUVANANTHAPURAM-695 102. GOVT. PLEADER SHRI.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 23668 of 2010 ================== Dated this the 29th day of July, 2010 J U D G M E N T The 1st petitioner is a voluntary organization by name, “Janaseva Sisubhavan”, who renders services for looking after destitute children and is recognised under the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960, for the purpose. The 2nd petitioner is the grand-mother of two children, who have been ill- treated by their father and one of them was tortured by the father. Their mother is away in Dubai. According to the 1st petitioner, when they knew about the torture of the children by their father, the officials of the 1st petitioner went to Trivandrum, met the 2nd petitioner, who is having the custody of the children and in the presence of respectable persons, including the Chairperson of the Kerala Women's Commission, took custody of the children taking the children to the 1st petitioner's institution. According to the petitioners, the children are very happy in the first petitioner's institution and they have been authorised by the mother of the children by Ext.P6 e-mail to look after the children. While so, the Child Welfare Committee under the Juvenile Justice (Care & Protection of Children) Act, 2000, (“the Act” for short) has issued Ext.P7 notice to the respondent to produce the children before the them, since, according to them, the children come within w.p.c.23668/2010 2 the definition of “child in need of care and protection” under the Act and, therefore, the children are to be dealt with under the Act. The petitioners are challenging Ext.P7 notice. According to them, since the mother and grand-mother are capable of looking after the children and they have entrusted the children to the 1st petitioner, the Child Welfare Committee does not have jurisdiction to deal with the children. Therefore, they seek the following reliefs; “A). Call for the records leading to Ext.P7 and issue a writ in the nature of certiorari, quashing Ext.P7 forthwith, B). declare that in view of the the averments in the writ petition coupled with the exhibits, the children sought to be produced before the respondent cannot be considered as children in need of care and protection and that the respondent has no jurisdiction to decide matters pertaining to those children, and that Ext.P7 is ab-inito void, vitiated with lack of jurisdiction, rendering it liable to be quashed.” 2. I have heard the learned counsel for the petitioners. 3. The term, “child in need of care and protection” has been defined in Section 2(d) of the Act, thus: “2. Definitions.- ..... (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 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 w.p.c.23668/2010 3 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, (ix) who is victim of any armed conflict, civil commotion or natural calamity.” In view of the situation described by the petitioners themselves, it is a moot question as to whether the children are children in need of care and protection, which has to be decided by a competent authority. The Child Welfare Committee, which is a statutory authority, is certainly competent to decide that issue. Therefore, I am of opinion that the Child Welfare Committee has jurisdiction to decide the question as to whether these children are in need of care and protection also. As such, I do not find any infirmity in Ext.P7 notice directing the 1st petitioner to produce the children for consideration of the issue. Therefore, I do not find any merit in the challenge against Ext.P7. w.p.c.23668/2010 4 However, the Child Welfare Committee shall decide the question as to whether the children are in need of care and protection as defined in Section 2(d) of the Act. If the Child Welfare Committee is of opinion that the children are in need of care and protection, they shall also ascertain the children's wishes as to whether they are happy with the 1st petitioner institution and take a decision only after taking into account all facts and circumstances of the matter. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge