Madras High Court
M.Meena vs The Superintendent Of Police on 28 March, 2018
Bench: S.Vimala, T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2018
CORAM
THE HONOURABLE DR.JUSTICE S.VIMALA
AND
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
H.C.P.(MD) Nos.1110 of 2017 and 1122 of 2017
H.C.P.(MD) No.1110 of 2017:
M.Meena ... Petitioner
-vs-
1. The Superintendent of Police,
Thoothukudi District, Thoothukudi.
2. The Inspector of Police,
Surankudi Police Station,
Thoothukudi, Thoothukudi District.
3. The Sub Inspector of Police,
All Women Police Station,
Vilathikulam, Thoothukudi,
Thoothukudi District.
4. Balamurugan
5. N.Muthuraman ... Respondents
(R5 impleaded suo motu by order dated 18.09.2017)
(By consent of parties R-5 deleted, after final hearing)
Prayer: Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, directing the respondents to produce the
detenu, namely, Malathi, aged about 15 years, D/o.Marimuthu, or her body
before this Court and hand over the custody of minor detenu with the
petitioner or set her at liberty.
!For Petitioner : Mr.V.Nirmal Kumar
^For R1 to R3 : Mr. K.Dinesh Babu, APP.,
For R4 : No Appearance
H.C.P.(MD) No.1122 of 2017
Paramasivan ... Petitioner
-vs-
1. The Superintendent of Police,
Tuticorin District.
2. The Inspector of Police,
Vilathikulam Police Station,
Tuticorin District.
3. Marimuthu
4. N.Muthuraman ... Respondents
(R4 impleaded suo motu by order dated 18.09.2017)
(By consent of parties R-4 deleted, after final hearing)
Prayer: Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, directing the 2nd Respondent to produce the
body or person of petitioner's son, namely, P.Balamurugan, S/o.Paramasivan,
aged about 25 years before this Honourable Court and set him at liberty
For Petitioner : Mr.M.Subash Babu
For R1 to R3 : Mr. K.Dinesh Babu, APP.,
For R4 : No Appearance
:COMMON ORDER
[Order of the Court was made by S.VIMALA, J.] ?To part a woman from her child in a violent manner is a most dangerous step to take. It will so unstabilize her that she may emerge from the shattering experience as an entirely different personality.? (Ellison) .
2. Though the case originated with a prayer by the mother to get back her child, aged 15, ultimately, the case ended in the child aged 15 seeking restoration of custody of her ten month's old baby.
3. Adoption can be a most beautiful solution not only for childless couples and single people, but also for homeless children. It enables a parent-child relationship to be established between persons not biologically related. When a biological mother, who had been under compulsive circumstances to part with the child without knowing the implication of surrender is made to lose the child, what would be the consequence is explained in the above quotation.
4. H.C.P(MD) No.1110 of 2017 has been filed by mother, seeking direction to the respondents to produce her daughter / detenu, namely, Revathi (name changed), D/o.Marimuthu, aged about 15, before this Court and hand over her custody to the petitioner.
4.1. Similarly, H.C.P(MD) No.1122 of 2017 has been filed by father, seeking direction to the 2nd respondent to produce his son / detenu, namely, P.Balamurugan, S/o. Paramasivan, aged about 25, before this Court and set him at liberty.
5. At the time of production of the detenu, Revathi, on 07.03.2018, this Court had passed the following order:
?3. For the sake of brevity, the detenus are referred to by their name.
4. The learned Additional Public Prosecutor for the respondents has produced Revathi [detenu in HCP(MD) No.1110 of 2017] through respondent police. It is submitted by the State that both Revathi, who is aged about 16 years and Balamurugan [detenu in HCP(MD) No.1122 of 2017], who is aged about 23 years, fell in love with each other and subsequently, Balamurugan eloped with Revathi. It is further submitted that on account of their close associations, Revathi became pregnant and begot a male child. At present, the 8 months old baby is under due care with the Child Welfare Committee, (176, Mani Nagar (Opp. Rajaji Park), Thoothukudi). Balamurugan has already been arrested in respect of the offence, in Crime No.1 of 2018, under Sections 366(A) and Sections 5(j)(ii) r/w 6 of POCSO Act, 2012, and pursuant to which, he was remanded to judicial custody on 05.03.2018 itself and lodged at the District Jail, Perurani, Thoothukudi.
5. The parents of both Revathi and Balamurugan are present before this Court, who have assured this Court that they are ready to arrange the marriage of detenus after Revathi attaining majority.
6. The paramount welfare of the child is the prime consideration for this Court to decide the further course of action to be taken in respect of the child, born to both the detenus. Therefore, Balamurugan / accused in Crime No.1 of 2018 is directed to be produced before this Court on 13.03.2018. In the meanwhile, Registry is directed to call for a report from the Child Welfare Committee (address furnished above), where the child is kept, regarding the welfare, growth and status of the child and the report be placed before this Court on 13.03.2018.
List these matters on 13.03.2018 for hearing.?
5.1. On 13.03.2018, the following order had been passed:-
?.....
4. The detenu in HCP(MD) No.1110 of 2017 is present before this Court along with her parents and Balamurugan / detenu in HCP(MD) No.1122 of 2017, who is in custody at the District Jail, Perurani, Thoothukudi has been produced by the respondent Police. The parents of Balamurugan are also present in this Court. On enquiry with the detenus, it is found that the accused / detenu in HCP(MD) No.1122 of 2017 is in custody; that the woman detenu in HCP(MD) No.1110 of 2017 is in the custody of home attached to the Child Welfare Committee and the child is in the custody of the Specialized Adoption Agency, namely, Tirunelveli Social Service Society, Saranalayam Adoption Centre, No.4, Tenkasi Road, Alankulam, Tirunelveli District.
5. When the matter was taken up for hearing on 07.03.2018, this Court directed the registry to call for a report from the Child Welfare Committee with regard to the status of the child. Today, a report has been filed by the Child Welfare Committee, in which it is stated that the child has been declared as ?legally free for adoption?. The male detenu produced today, who is the accused would state that he was in employment earning a sum of Rs.22,000/- per month and that he is financially sound, i.e., in a position to bring up the child. The parents of detenus would submit that they would be in a position to contribute financially for the growth of the child and that they would extend all kinds of support including physical, financial, moral and psychological to the child. The detenus and the parents of the detenus have given written undertakings to that effect.
6. The parents of the female detenu would submit that they will take custody of the daughter and would provide support not only to their daughter, but also to the child born to her, i.e., grandson. The Home attached to the Child Welfare Committee is directed to release the detenu in HCP(MD) No.1110 of 2017 to the custody of the parents.
7. The parents of male detenu also expressed their view that they are ready to give support to the grandson. So far as the custody of Minor.Darwin is concerned, the Child Welfare Committee has sent a report dated 11.03.2018, in which reference has been made to several reports, but those reports have not been sent along with the Committee Report. The Child Welfare Committee is directed to send all the communications 1 to 7 referred to in the reference column in the report dated 11.03.2018.
8. The report alleges that the child is declared as legally free for adoption. As the detenu in HCP(MD) No.1110 of 2017 has made a strong and deep appeal for custody of the child, further proceedings after the declaration of the child being free for adoption is ordered to be kept in abeyance. Final decision will be taken after receipt of all documents cited as references in the report dated 11.03.2018.
List these matters on 16.03.2018 for further hearing.?
5.2. On 16.03.2018, this Court directed the Child Welfare Committee to produce the communications 1 to 7 referred to in the reference column in the report dated 11.03.2018 and directed to post the matter on 20.03.2016 and thereafter, it was adjourned to 26.03.2018.
5.3. Further on 26.03.2018, this Court had passed the following order:
?......
3. During pendency of these two petitions, the petitioner in H.C.P(MD) No.1110 of 2017 has filed a petition along with an affidavit, seeking to hand over the custody of the male child (at present kept in the Child Welfare Committee), which was born to her daughter through the detenu in H.C.P(MD) No.1122 of 2017, who is in custody at the District Jail, Perurani, Thoothukudi. The detenu in H.C.P(MD) No.1110 of 2017 and both the grandmothers of the child are present before this Court.
4. The Chairperson / Member, Child Welfare Committee, Thoothukudi District has filed a petition, objecting to such custody, stating that the petition filed by the petitioner / grandmother of the child cannot be entertained and the detenu in HCP(MD) No.1110 of 2017, being minor also cannot file any such petition, seeking custody of the child.
5. When this was put to the mother and grandmothers of the child, the mother of the detenu in HCP(MD) No.1122 of 2017 (the said detenu is the father of the child) would inform this Court that her son, who is in jail relating to POCSO Act, is very much anxious to bring up the child and he has given instructions to get the custody of the child.
6. Hence, Balamurugan / detenu in HCP(MD) No.1122 of 2017, who is in custody at the District Jail, Perurani, Thoothukudi is directed to be produced before this Court for enquiry on 27.03.2018. The respective parties and the concerned Member of the Child Welfare Committee, Thoothukudi District are also directed to be present in this Court on the said date.
List these matters on 27.03.2018 for further hearing.?
5.4. In continuation of the order, dated 26.03.2018, the following order had been passed on 27.03.2016:
?.....
2. The detenu in H.C.P(MD) No.1122 of 2017, who is an accused in respect of Crime No.1 of 2018 on the file of CBCID, Thoothukudi, is produced before this Court. The detenu in HCP(MD) No.1110 of 2017, mother of two detenus and the Member of Child Welfare Committee are also present in this Court.
3. In continuation of the order dated 26.03.2018, the matters are taken in the Chamber and heard in the presence of the learned counsel on either side. Enquiry was conducted. The detenu in H.C.P(MD) No.1122 of 2017 (father of the child) has filed a petition seeking custody of his child and has expressed his willingness to bring up his child under his custody, in the event of the child being handed over to him by this Court. He has also filed an affidavit, giving no objection to hand over the child to his wife pursuant to his incarceration in jail.
4. List this matter on 28.03.2018 'For Orders'. The Director, Tirunelveli Social Service Society, Saranalayam ? Adoption Centre (Phone No.0462-2321170) is directed to bring the child to this Court safely on the said date by 4.45pm and the address of the Adoption Centre is furnished as under:
Head Office:
Tirunelveli Social Service Society No.2A, St.Mark's St., P.B.No.108, Palayamkottaasi, Tirunelveli-627 002 Home:
Tirunelveli Social Service Society ? Babies Home No.4, Near Aruna Petrol Bulk, Nallur Post, Tenkasi Road, Alankulam-627 851.?
6. The detenu in H.C.P.(MD) No.1122 of 2017 has also filed a petition seeking custody of his child with a request to hand over the custody to his wife. Whether the child can be given to the custody of the father / mother, when the child has been surrendered to the Child Welfare Committee and after the expiry of 60 days from the date of surrender and more especially, when the child has been declared legally free for adoption. In other words, whether parental rights get extinguished after the expiry of 60 days from the date of surrender of the child.
7. To decide this issue, it is necessary to look into the legal provisions relating to the ?surrendered child? and ?child in need of care and protection?: -
?Section 2(16) of J.J.Act, 2015 defines child legally free for adoption. According to Section 2(16) child legally free for adoption means a child declared as such by the Child Welfare Committee after making due enquiry under Section 38?.
7.1. A child in need of care and protection, as defined under Section 2(14) means a child,
(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child or not) and such person? (a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or (b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or (c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or
(vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable gains; or
(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnization of such marriage.?
7.2. The procedure for declaring a child free for adoption is provided under Section 38 of the Act, which reads thus:-
?38. (1) In case of orphan and abandoned child, the Committee shall make all efforts for tracing the parents or guardians of the child and on completion of such inquiry, if it is established that the child is either an orphan having no one to take care, or abandoned, the Committee shall declare the child legally free for adoption:
Provided that such declaration shall be made within a period of two months from the date of production of the child, for children who are up to two years of age and within four months for children above two years of age:
Provided further that notwithstanding anything contained in this regard in any other law for the time being in force, no first information report shall be registered against any biological parent in the process of inquiry relating to an abandoned or surrendered child under this Act.
(2) In case of surrendered child, the institution where the child has been placed by the Committee on an application for surrender, shall bring the case before the Committee immediately on completion of the period specified in section 35, for declaring the child legally free for adoption.
(3) Notwithstanding anything contained in any other law for the time being in force, a child of a mentally retarded parents or a unwanted child of victim of sexual assault, such child may be declared free for adoption by the Committee, by following the procedure under this Act.
(4) The decision to declare an orphan, abandoned or surrendered child as legally free for adoption shall be taken by at least three members of the Committee.
(5) The Committee shall inform the State Agency and the Authority regarding the number of children declared as legally free for adoption and number of cases pending for decision in the manner as may be prescribed, every month.
7.3. Section 40 of the Act provides for restoration of child in need of care and protection and it reads as under:-
?TAMIL NADU JUVENLIE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2017:-
51. Procedure for surrender of child for adoption.- (1) A child may be surrendered by ,- (i) both the parents; (ii) any one of the parent if the other is not alive or has been declared to be unsound mind by a competent court; (iii) natural guardian or the guardian appointed by the Court, where both parents are alive but are not living together and the parents have given their consent to the Child Welfare Committee for surrendering the child; (iv) an unmarried mother where the biological father of the child had deserted the mother and his whereabouts are not known; (v) an unmarried minor mother, or a mentally challenged mother accompanied by a parent or a guardian; (vi) an unmarried minor mother placed in a child care institution accompanied by the Officer-in-charge when the child has no parents or guardians or relatives, as the case may be.
(2) The application for surrender of a child shall be in a prescribed Form XXVI and the deed of execution shall be in Form XXVII, to the effect that child is legally free for adoption after the expiry of sixty days from the date of surrender;
(3) The Specialized Adoption Agency or child care institution shall follow due procedure as provided in guidelines governing adoption of children notified by the Ministry of Women and Child Development, Government of India from time to time.
8. Contending that the consent of the father was not taken for the surrender of the child and that the implication of the surrender was not explained to the mother of the child, the custody of the child is reclaimed from the Child Welfare Committee. It is also contended that the father and mother (detenu) married each other and therefore, the surrender could not have been made without the consent of the father.
9. It is not out of place to mention that the marriage between them is not void, but it is only voidable under the Child Marriage Restraint Act and therefore, till the marriage is set-aside, the marriage is valid.
9.1. The child, which was brought into existence cannot be branded as illegitimate. The grandmother of the child would say that she was constrained to surrender, because of the social stigma that the child is a wrong child (jg;ghd FHe;ij), but she never knew that the child would be taken for adoption.
9.2. The Member of the Child Welfare Committee submitted that counselling was given before surrender regarding the implication of surrender. The mother would state that only with a view to take back the child after the problems are settled, she gave the child to the Child Welfare Committee and she never intended to give the child in adoption. The anxiety in the eyes of the mother with incessant tears from the eyes of the mother and the longings cannot be answered in the negative.
9.3. No doubt, adoption is the very laudable method of providing a family to a child, but it is laudable only to a child, who has no family. Here is a case, where both parents, along with the grandparents, are willing to take care of the child.
10. The accused / detenu has also shown keen interest in taking back his child. When the marriage is valid, the minority of the mother cannot be a disqualification to have the custody of the child.
11. The Child Welfare Committee would not have known that the child has a father. The consent of the father has not been given for surrender. The so called consent allegedly given by the mother is not an informed consent. Therefore, the consent itself is not valid. The advantages of nurturing the child by the biological mother cannot be underestimated and the advantages, as disclosed in various reports, are as under:
i) A gentle and nurturing skin-to-skin embrace offers several benefits to a baby, especially when this contact is made by the mother
ii) When they are left to cry alone for an hour, children can develop a fear of abandonment. Isolation causes a fear of never being held again. They can also experience separation anxiety, which can ultimately lead to a deep sense of insecurity. This can disturb relationships throughout the rest of their lives. The absence of affection that originates in the crib can cultivate into the world.
iii) Babies tend to be mother-centric. Because of the maternal bond that starts in utero, it is common for dads to feel like the odd man out.
iv) During pregnancy, the womb and the placenta provide warmth to an unborn baby. After delivery, the same needs are met when the newborn is placed on the mother?s chest. In the loving arms of mom, the baby maintains an optimal body temperature, allowing the newborn to conserve energy. This warmth regulates the baby?s body temperature better than any other method.
v) Whether it's a hand on the cheek, fingers on the lips, or a nibble on the nose, a baby is a touchy-freely being.
vi) It's natural for newborns to prefer their mothers above everyone else because moms are a food source.
vii) In one study, babies who were orphaned after World War II showed not only a physical failure to thrive but also a psychological stunting. It was later realized that a lack of physical contact slowed the babies?
metabolism, stunting their growth.
viii) Babies need an embrace to feel safe
ix) From the minute a baby is born, he/she is ready to interact with his mother. A newborn yearns to be protected by a parent after birth, the way nature intended. The importance of the mother-baby bond is well known but studies have shown the value in the first few hours following birth.
x) During skin-to-skin contact, the baby transfixes on the mother. The mother?s warmth, smell, sound, and touch help the newborn feel safe. While the mother exchanges sensory information with her baby, the mother becomes more in tune with her newborn.
xi) Hugs, regular affection, comfort, and prompt reactions to crying in babyhood are beneficial. A secure attachment is necessary for normal brain activity, social adjustment, and an overall health and well-being.
xii) Babies are calmer when they hear their mother's heartbeat because it is a familiar sound from the womb.
xiii) The first three years of life are crucial to a child's development. Newborns' brains weigh only 25% of their adult weight.?
12. In view of the foregoing discussions and observations, the surrender deed executed by the mother / detenu in H.C.P.(MD) No.1110 of 2017 stands cancelled and the custody of the child, by name, Darwin, is hereby ordered to be entrusted to the mother / detenu in H.C.P.(MD) No.1110 of 2017. Accordingly, M/s.P.Muhamathi, Co-ordinator and Sr.Clara Mary, Nurse, working in Tirunelveli Social Service Society, Saranalayam (No.89, South Balabackia Nagar, Tirunelveli-627 001), who have brought the child to the Court, have duly handed over the child along with the child's medical records to the mother of the child, namely, the detenu in HCP(MD) No.1110 of 2017 in the Chambers, as directed by this Court. The Tirunelveli Social Service Society is also permitted to visit the child as and when they feel so.
13. We are in agreement with the statement that a picture is worth 1,000 words. The idea that a picture can convey what might take many words to express was voiced by a character in Ivan S. Turgenev's novel, Fathers and Sons, 1862:
"The drawing shows me at one glance what might be spread over ten pages in a book."
The little girl has never seen her mother, so she drew a mom on the ground and fell asleep with her. - Iraqi Orphanage.
-- https://www.reddit.com/r/pics/comments/1i8k06/
14. Whether the statement made is true or not is immaterial and this picture has been used only to highlight the importance of relationship between the biological mother and the child. This picture is incorporated in the judgment itself, in order to imprint an indelible impression in the minds of the authorities who are in-charge of counselling the mother, when the mother comes to surrender a child and those who are in-charge of explaining the implication of surrender and the termination of parental rights on the expiry of 60 days from the date of surrender.
15. In the result, the Habeas Corpus Petitions are closed.
Note to Registry: To send a copy of this order to The Chairperson / Member, Child Welfare Committee, Thoothukudi District as well as Tirunelveli Social Service Society as well. By Fax Issue order copy on 16.04.2018 To:
1. The Superintendent of Police, Thoothukudi District, Thoothukudi.
2. The Inspector of Police, Surankudi Police Station, Thoothukudi, Thoothukudi District.
3. The Sub Inspector of Police, All Women Police Station, Vilathikulam, Thoothukudi, Thoothukudi District.
4. The Inspector of Police, Vilathikulam Police Station, Tuticorin District.
5. The Inspector of Police, CBCID, Thoothukudi.
6. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.