Madhya Pradesh High Court
Seema vs Child Welfare Committee Mandsaur on 3 May, 2017
Cr.R. No.323/2017 1
Cr.R. No.323/2017
03/05/2017
Shri Satish Jain, learned counsel for the petitioner.
This revision under Section 102 of The Juvenile Justice (Care & Protection of Children) Act, 2015 (for short 'The Act, 2015) is directed against order dated 13/02/2017 passed by the Collector, Indore in case No.2/appeal/2016- 17, whereby and whereunder order dated 08/12/2016 passed by Child Welfare Committee, Mandsaur (for short 'CWC'), declining grant of foster care of girl child Kriti in favour of Seema Bhandari, has been maintained.
02. From the record it transpires that girl child Kriti, born on 19/05/2015, is presently in the care and protection of 'CWC'. Allegedly, the girl child, after her birth, was abandoned by her biological mother, who is presently facing trial before the Sessions Judge, Mandsaur for offence under Section 317 of IPC. Petitioner Seema Bhandari, resident of Manglam Vihar, Kityani, Tehsil and District Mandsaur, moved an application before the 'CWC' for grant of foster care of girl child Kriti to her. 'CWC', after due consideration, vide order dated 08/12/2016 declined the request on the ground that the policy of law happens to be that, only those children who are more than 6 years of age should be considered for being given in foster care, while children below 6 years of age, as far as possible, Cr.R. No.323/2017 2 be considered for adoption. It was also stated in the order that natural mother Karibai, has also claimed custody of the girl child and that the girl child is yet to be surrendered.
03. The order passed by 'CWC' was unsuccessfully challenged before the Collector, Mandsaur, who, vide impugned order dismissed the appeal, upholding the order passed by 'CWC'. In this revision, the impugned order so also the order passed by 'CWC' is challenged on the ground that the same is against the provisions of 'The Act, 2015'. It is submitted that the petitioner was found to be a fit person for foster care and that a criminal case is pending against the biological mother of the child for throwing away new born child, hence, the question of granting custody of the child to the biological mother did not arise. Therefore, in the light of Section 30 (v) and Section 44 of 'The Act, 2015', 'CWC' ought to have awarded the custody of the child to the petitioner for foster care.
04. Heard on the question of admission and perused the record.
05. Juvenile Justice (Care and Protection of Children) Act, 2015 aims at consolidating and amending 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, through child friendly approach in the best interest of children and for their rehabilitation through Cr.R. No.323/2017 3 processes provided, and institutions and bodies established under the 'The Act, 2015'.
06. Foster Care, which is defined in Section 2 sub- clause 29 of 'The Act, 2015' is one of the modes prescribed under 'The Act, 2015' for rehabilitation and re-integration of child in need of care and protection. It means placement of a child, by the Committee for the purpose of alternate care in the domestic environment of a family, other than the child's biological family, that has been selected, qualified, approved and supervised for providing such care. One of the functions and responsibilities of the Child Welfare Committee, constituted under Section 27 of 'The Act, 2015', as provided under Section 30 (v) of 'The Act, 2015', is directing placement of a child in foster care.
07. Section 110 of 'The Act, 2015' confers rule making power on the Central / State Government. Proviso to Section 110 stipulates that Central government may frame model rules in respect of all or any of the matters with respect to which the State Government is required to make rules and where any such model rules have been framed in respect of any such matter, they shall apply to the State 'mutatis mutandis' until the rules in respect of that matter are made by the State Government and while making any such rules, they conform to such model rules.
08. The Central Government, in exercise of powers conferred by the proviso of sub section (I) of Section 110 of 'The Act, 2015', has framed The Juvenile Justice (Care Cr.R. No.323/2017 4 and Protection of Children) Model Rules, 2016 (for short 'Model Rules, 2016'), which have been published in Gazette of India (Extraordinary) Part II Section 3(i) dated 21/09/2006. Here it is noticeable that State Government has so far not framed any Rules, therefore, the 'Model Rules, 2016' will apply till Rules are framed by the State Government.
09. As regards foster care, Sub-clause 3 of Rule 23 of the 'Model Rules, 2016' provides that all decisions related to placement of a child in foster care shall be taken by Committee. It further provides that children in the age group of 6 years and above may be considered for placement in foster care in the circumstances mentioned in sub-rule(1) of Rule 44 of these Rules. Rule 44 further provides that children who are not being adopted, after being declared legally free for adoption, may be eligible for foster care. Sub clause (1) (i) of Rule 44, which is relevant in this regard runs as under:
"Rule 44 (1) The following categories of children may be considered for Foster Care in following circumstances:
(i) Children in the age group of 0 to 6 years who are being considered by the Committee as legally free for adoption and those who have been declared legally free for adoption shall not as far as possible be considered for placement in foster care. Such children shall be provided a permanent family through adoption as per Adoption Regulations."Cr.R. No.323/2017 5
From the aforesaid, it is clear that primarily and as far as possible, only a child, above 6 years of age, who has been declared legally free for adoption and who is not being adopted after being so declared may be eligible for foster care. In the instant case, the girl child, who is hardly 2 years old is yet to be declared legally free for adoption, thereafter the concerned agency will have to make effort for her adoption by following the mechanism provided in the law and still if the child is not adopted, then on completion of 6 years, the issue of foster care will arise.
In the aforesaid premises it cannot be said that the 'CWC' or for that matter the Collector has committed any legal or factual error in declining the prayer, for foster care, made by the petitioner.
Therefore, this petition sans merits, is dismissed in limine.
Certified copy as per rules.
(Ved Prakash Sharma) Judge sumathi