Telangana High Court
Aloni Prakash, vs Child Welfare Committee, on 26 April, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.16417 OF 2016
ORDER
This Writ Petition has been filed seeking a Writ of Mandamus or other appropriate Writ to declare the proceedings of the 1st respondent dt.10.05.2016 directing the petitioners to give custody of their adopted son in favour of respondents 2 and 3 within 10 days thereof, as illegal, unconstitutional and without jurisdiction and to set aside the same and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. The facts leading to the filing of this Writ Petition are that respondents 2 and 3 are the natural parents of the adopted son of petitioners 1 and 2. The petitioners submit that the 1st petitioner was working as a Pump Operator in Singareni Collieries Company Limited at Srirampur Division and the 2nd petitioner is his wife and the 2nd respondent is the younger brother of his wife and the 3rd respondent is the wife of the 2nd respondent. It is submitted that the petitioners did not have any children and the 2nd respondent was having two children, i.e., a W.P.No.16417 of 2016 2 baby girl and a baby boy. The petitioners therefore had requested respondents 2 and 3 to give Master Sathwik, the baby boy, who was 21 days old at the time of request, in adoption to them. It is submitted that respondents 2 and 3 have agreed to do so and a deed of adoption was executed by them on 30.04.2006 and the adoption deed contains all the necessary clauses. It is submitted that since then, the said boy has become the child of the petitioners and the petitioners have been bringing him up with all care and love. It is submitted that the 1st petitioner's name is recorded as father of the child in all places like the school register, aadhaar card, etc., and that they are looking after the boy with all love and care and also are providing him with good education. It is submitted that though the petitioners were requesting the respondents to come forward to register a deed of adoption, he did not show any interest and since they were related to him, they did not have any doubt and further that after the adoption of baby Sathwik, the 2nd and 3rd respondents got another child by name baby Sreenika. It is submitted that when the petitioners intended to perform thread ceremony of Master Sathwik, respondents 2 and 3 have demanded to return back their son so that they will perform the thread ceremony and they also filed a police complaint against the petitioners. The 2nd and 3rd respondents also W.P.No.16417 of 2016 3 approached the 1st respondent and after hearing all the parties, the 1st respondent has directed the petitioners to hand over the custody of the child to his natural parents, i.e. respondents 2 and 3 and against the same, the petitioners have filed this Writ Petition questioning the jurisdiction of the 1st respondent in entertaining and adjudicating the complaint filed by the 2nd and 3rd respondents.
3. Sri Vedula Srinivas, learned Senior Counsel appearing for the petitioners submitted that an unregistered adoption deed has been executed by respondents 2 and 3 as well as the petitioners and that the fact that the child was with the adopted parents all along proves the validity of the adoption given by the natural parents to the petitioners herein. He submits that if respondents 2 and 3 are challenging the adoption deed itself, then they have to approach the relevant Civil Court, but respondent No.1 has no jurisdiction to entertain the complaint/representation/ application filed by respondents 2 and 3. He submitted that respondent No.1 organization is formed under the Juvenile Justice (Care and Protection of Children) Act, 2015 and the said Act is not applicable to all the children in rem but it is applicable only to the children in conflict with law and those in need of care and W.P.No.16417 of 2016 4 protection. He has drawn the attention of this Court to the definitions of 'child in conflict with law' and 'child in need of care and protection' and submitted that the case of the child involved in this petition does not fall in any of these categories. He has also drawn the attention of this Court to Sections 10 and 14 of the said Act to demonstrate that respondent No.1 Committee does not have jurisdiction to deal with the case on hand.
4. Sri Rajeswara Rao, learned counsel representing Sri K. Prabhakar Rao, learned counsel for respondents 2 and 3, on the other hand, submits that the respondents had never given their son on adoption to the petitioners and that it was only out of love and affection that respondents 2 and 3 had allowed the child to be with the petitioners for some time and in Aadhaar card also, the 2nd respondent's name was only mentioned as the child's father and that it was later, at the behest of the petitioners that the name of the father has been changed as that of petitioner No.1. The attention of the Court is drawn to the fact that the adoption deed is not signed by any of the relatives of the petitioners or respondents 2 and
3. Thus, it is denied that the signatures on the alleged adoption deed are of respondents 2 and 3. He submitted that since the child was not being W.P.No.16417 of 2016 5 looked after properly and was not being permitted to meet his parents on the ground that he has been adopted by them, they had no option but to approach the respondent No.1, who has the power to deal with such an issue.
5. He has drawn the attention of this Court to the definition of 'adoption' provided under Section 2 Sub-section (2) and Sub-section (3) of the Juvenile Justice (Care & Protection of Children) Act, 2015 and to Chapter II Section 3 thereof relating to 'general principles of care and protection of children' and to Section 8 which deals with 'powers, functions and responsibilities of the Board' and to Section 27 regarding constitution of 'child welfare committee' and Sub-section (9) thereof, wherein it has been provided that the Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class and also to Section 30 dealing with functions and responsibilities of the Committee. He further draws the attention of this Court to Section 101 of the said Act, wherein there is a provision for appeal to the Children's Court. Therefore, the learned counsel for respondents 2 and 3 submits that the order passed by the 1st W.P.No.16417 of 2016 6 respondent Court is valid and should be upheld and if the petitioners are aggrieved by the order of the 1st respondent, the proper course of action would be to file an appeal to the Children's Court. It is also submitted that since alternative remedy is available, this Writ Petition is not maintainable. Learned counsel for the respondents also placed reliance upon a decision of the Hon'ble Supreme Court in the case of Addagada Raghavamma and another Vs. Addagada Chenchamma and another1 for the proposition that when the natural parents have only one male child, it is improbable that they would give the child in adoption to others.
6. In rebuttal, the learned Senior Counsel for the petitioners submits that it is admitted by respondents 2 and 3 herein before the 1st respondent authority that they have given the child in adoption and sought cancellation of the said adoption deed. It is therefore not open to them now to take a different stand that the child was not given in adoption. Further, he submits that as the petitioners are challenging the jurisdiction of respondent No.1 in dealing with the issue, this Writ Petition is maintainable.
1 (1964) AIR (SC) 136 W.P.No.16417 of 2016 7
7. Having regard to the rival contentions and the material on record, it is seen that the basic and foremost question before this Court in this Writ Petition is about the maintainability of the application of respondents 2 and 3 before the 1st respondent under the Juvenile Justice (Care and Protection of Children) Act, 2015. Though the learned counsel for the petitioners submitted that respondents 2 and 3 have questioned the adoption deed before the 1st respondent, on going through the copy of the application filed by respondents 2 and 3 before the 1st respondent Committee on 01.04.2016, it is noticed that the prayer therein is to bring back the child to their custody and also to take suitable action against the school management for issuing the certificate by changing the name of the parents in the school certificate. There is no mention of the adoption deed in the said application. Therefore, it is clearly not for cancellation of the adoption deed and therefore the argument of the petitioners that respondents 2 and 3 ought to have approached Civil Court is not sustainable.
8. The next issue to be considered is the maintainability of the application of respondents 2 and 3 dt.01.04.2016. To adjudicate this issue, it is felt necessary to go into various provisions of the Act. It is W.P.No.16417 of 2016 8 seen that initially, the Juvenile Act, 1986 was introduced to lay down the basic principles for administering justice to a juvenile or the child in the Bill and to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each District or group of Districts amongst various other objectives. In the year 2000, there was an amendment to the Juvenile Act, 1986 by bringing into force the Juvenile Justice (Care and Protection of Children) Act, 2000 with effect from 01.04.2001. This Act intended to extend the provisions of the Act to the scope of adoption of a child to childless parents and to limit the same under the Juvenile Justice (Care and Protection of Children) Act, 2000 to citizens of India only. Thereafter, Act No.2 of 2016 was introduced to consolidate and amend the law relating to 'children alleged and found to be in conflict with law' and 'children in need of care and protection' by catering to their basic needs through proper care, protection, development, treatment, social re- integration and by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children.
9. Thus, this Act came to be called as the Juvenile Justice (Care and Protection of Children) Act, 2015. Sub-Section (4) of Section 1 thereof W.P.No.16417 of 2016 9 provides that notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning 'children in need of care and protection' and 'children in conflict with law' and Clause (ii) thereof refers to procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection. The words 'adoption' and 'adoption regulations' are defined under Sub- Sections (2) and (3) of Section 2 respectively. Sub-Section (13) thereof defines 'child in conflict with law' to mean a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence and Sub-Section (14) defines 'child in need of care and protection' to mean 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 W.P.No.16417 of 2016 10
(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) ........., (v) ........., (vi) ......, (vii) ........., (viii) ........., (ix) ........., (x) ........., (xi) ........., (xii) .........
Sub-Section (26) of Section 2 defines 'District Child Protection Unit' to mean a Child Protection Unit for a District, established by the State Government under Section 106, which is W.P.No.16417 of 2016 11 the focal point to ensure the implementation of this Act and other child protection measures in the District.
10. As seen from the impugned order, it is passed by the Child Welfare Committee, Karimnagar and the relevant provision under which such an order has been passed is not mentioned. As seen from the complaint of respondents 2 and 3, the allegation was that the petitioners were threatening them that they would take drastic steps if the child were to be given to respondents 2 and 3 and also that they were influencing the child against respondents 2 and 3. Therefore, this Court is of the opinion that the provisions of Section 2, Sub-Section (14), Clause (iii)(a) thereof would apply to the present case and the child can be considered as a child in need of care and protection. The allegations of the natural parents of the child were that because of the child being in the custody of the petitioners, they were exploiting the situation to influence the child against them. The fact that the child was not being allowed to see his natural parents would go to establish that the child was being influenced and thus being exploited. Therefore, this Court is satisfied about the amenability of this situation to the subject Act. W.P.No.16417 of 2016 12
11. Further, the Child Welfare Committee is formed under Section 27, and Sub-Section (9) thereof provides that such Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class. Sub-Section (10) thereof provides that the District Magistrate shall be the grievances redressal authority for the Child Welfare Committee and anyone connected with the child, may file a petition before the District Magistrate, who shall consider and pass appropriate orders. Thus, it is clear that the Child Welfare Committee has trappings of a Court and has the power to take action in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 30 deals with functions and responsibilities of the Committee and Clause (ii) thereunder provides that the functions and responsibilities of the Committee shall include conducting inquiry on all issues relating to and affecting the safety and wellbeing of the children under this Act. Clause (iv) thereunder provides for conducting inquiry for declaring fit persons for care of children in need of care and protection and Clause (vi) includes ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child's individual W.P.No.16417 of 2016 13 care plan and passing necessary directions to parents or guardians or fit persons or children's homes or fit facility in this regard. Section 37 of the Act provides that the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders, namely,
(a) ........,
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker. Section 101 of the Act provides for an appeal to the Children's Court against any order under the Act within 30 days from the date of such order.
12. In view of the above provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, this Court is satisfied that the child in question is a 'child in need of care and protection' and therefore the W.P.No.16417 of 2016 14 District Child Welfare Committee has rightly exercised the jurisdiction over the complaint filed by respondents 2 and 3.
13. As regards the merits of the order, it is found that there is a provision of appeal to the Children's Court and the petitioners, if they were aggrieved by the order of the Child Welfare Committee, ought to have approached the Children's Court for a decision in appeal. Since alternative remedy is available, this Court does not deem it fit and proper to go into the merits of the decision taken by the Child Welfare Committee, Karimnagar.
14. Therefore, the Writ Petition filed by the petitioners is dismissed. No order as to costs.
15. Pending miscellaneous petitions, if any, in this Writ Petition shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 26.04.2022 Svv