IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 WP(C).No. 14664 of 2007(U) ---------------------------------------- PETITIONER: -------------------- DINASEVANA SABHA, SNEHA NIKETAN, SOCIAL CENTRE, PATTUVAM, KANNUR DISTRICT, REPRESENTED BY ITS SISTER IN-CHARGE, SR.KUMARI. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.AJITH MURALI RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. *ADDL.R3 IS IMPLEADED: R3. SRI.VINCENT PAUL, INSPECTOR GENERAL OF POLICE, OFFICER IN CHARGE (SPECIAL INVESTIGATING TEAM- DIVINE RETREAT CENTRE, MURINGOOR), THIRUVANANTHAPURAM. (*ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 29/05/2007 IN I.A.NO.6490/07) BY GOVERNMENT PLEADER SRI. I.V. PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2007, THE COURT ON THE 02/08/2007 DELIVERED THE FOLLOWING: Kss WPC.NO.14664/2007 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF CERTIFICATE OF RECOGNITION ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, NEW DELHI DTD. 16/02/2005. EXT.P2: COPY OF RELINQUISHMENT DEED EXECUTED IN FAVOUR OF THE PETITIONER – INSTITUTION DTD. 10/10/2000. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. =============== W.P.(C) NO. 14664 OF 2007 U ===================== Dated this the 2nd day of January, 2008 J U D G M E N T Petitioner is an Adoption Placement Agency recognised by the Central Adoption Resource Agency, New Delhi for In-country and Inter-country adoptions within the State of Kerala. Ext.P1 is a copy of the certificate of recognition. It is also stated that the institution is a Foundling Home, registered under the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960. 2. In this writ petition, it is stated that an unwedded mother by name Mini, gave birth to a female child on 30/9/2000 and by executing Ext.P2 relinquishment deed dated 10/10/2000, she relinquished the child to the care of the petitioner. It is stated that the child was given to the custody of an Indian couple for the purpose of adoption as per the guardianship order passed by the District Court, Thalasserry. Long thereafter, during May 2007, police officers under the 2nd respondent describing WPC 14664/07 :2 : themselves to be members of the special investigation team constituted for investigating the allegations against the Divine Retreat Centre, Muringoor came to the petitioner's institution and asked about the present whereabouts of the child. It is stated that they were compelled to furnish information including the address of the adoptive parents. They learnt that the investigation is in connection with the allegation that the said women had become pregnant on being raped by a priest and investigation is to fix the paternity of the child by subjecting the child, its biological mother and the alleged putative father to DNA test. On the apprehension that if the present whereabouts of the child and the identity of the child's foster parents are made public, it would be against the welfare of the child and that the child will become a laughing stock among the neighbours, this writ petition has been filed. 3. Petitioner makes reference to the Apex Court judgments in the case of Lakshmikant Pandey v. Union of India (AIR 1984 SC-469) and also Laxmi Kant Pandey v. WPC 14664/07 :3 : Union of India (AIR 1986 SC 272) and also submits that the disclosure of the details regarding the biological mother would be disastrous to the child and is against the law laid down by the Apex Court. It is on this basis writ petition has been filed. 4. There are three main prayers in this writ petition and I extract them for reference. i) issue a writ of mandamus or other appropriate writ, direction or order,commanding the respondents not to disclose to the foster parents of the child born to Mini, on 30/9/2000, the details regarding the child's biological mother or its alleged putative father. ii) issue a writ of mandamus or other appropriate writ, direction or order, commanding the respondents, not to disclose or reveal to the biological mother, her relatives or the alleged putative father of the said child, the identity or other details regarding the foster parents of the child. Iii) issue a writ of mandamus or other appropriate writ, direction or order, commanding the respondents, to keep the said details confidential and not to publish the same, in any manner what so ever. 5. Initially I was led to think that the objection of the petitioner is against locating the child and subjecting the child to DNA test as part of the investigation. But going by the prayers WPC 14664/07 :4 : that have been made, the anxiety of the petitioner seems to be more against disclosure of information of the biological mother or its alleged putative father to its foster parents and vice versa. 6. True, the Apex court in its judgment in Lakshmikant Pandey v. Union of India (AIR 1984 SC 469) have held that even in a proceedings for the guardianship, no notice should be issued to the biological parents of the child, since it would create considerable amount of embarassment and hardship. It has also been laid down that such disclosure could result in emotional and psychological disturbance for the child which might affect his future happiness. On this basis, it has been held that it is absolutely essential that the biological parents should not have any opportunity of knowing, who are the adoptive parents taking the child in adoption. This position has been reiterated by the Apex Court in Laxmi Kant Pandey v. Union of India (AIR 1986 SC 272). 7. On behalf of the 3rd respondent, counter affidavit has been filed. In the affidavit filed, the necessity of locating the WPC 14664/07 :5 : child has been highlighted as essential for the successful completion of the investigation in Crime NO.381/05 of Koratty Police Station, which is being investigated by a Special Investigation Team, constituted under the orders of this court in Crl.M.C.405/06. It is stated that they have already located two children, whom Miss.Mini Varghese had given birth on 16/9/03 and 31/8/05 and that they have not succeeded in locating the first child born on 30/9/2000, which was given to the custody of the petitioner. The affidavit discloses that the 3rd respondent has recognised the necessity of maintaining the details of the biological mother unknown to the foster parents. It is on this basis, it has been stated that it is not necessary to disclose the identity of the child in the investigation of the case at any stage. It is also stated that considering the social and psychological impact of such revelation, the Special Investigation Team is ready to give any assurance to keep the details highly confidential and not to publish them. It is also stated that the investigation team is not going to question or record the WPC 14664/07 :6 : statements of the adopted parents. 8. In my view, the assurance given in the counter affidavit should satisfy the anxiety shown by the petitioner. As already noticed, prayers in this writ petition are not against the investigation that is going on or against locating the child for investigation purposes. However the anxiety of the petitioner seems to be more on the publication of information relating to the biological parents to the foster parents and vice versa. Petitioner is certainly justified in having that anxiety and it is doubtless that such disclosure of information will be disastrous to the welfare of the child, which has been recognised by courts as a matter of prime concern in issues like this. At the same time, this Court cannot also upset the investigation of a crime when serious offences such as rape is alleged. 9. In view of this, I direct that while the respondents will be free to proceed with the investigation including locating the child in question and also subjecting the child to such scientific tests as are absolutely necessary for the purpose of investigation, WPC 14664/07 :7 : the respondents will at the same time ensure that the details of the biological mother or its alleged putative father are not disclosed to the foster parents of the child born to Miss.Mini Varghese on 30/9/2000. It will also be their responsibility not to disclose or reveal to the biological mother or her relatives or the alleged putative father of the child the identity and other details regarding the foster parents of the child. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE. Rp