The paramount interest of the child should be the primary consideration in matters concerning the surrender and reclaiming of custody under the Juvenile Justice (Care and Protection of Children) Act, 2015.

JUDGMENT :

M.S. Sonak, J.

Heard Ms. Gautami Kamat, learned Counsel for the petitioner, Ms. Sapna Mordekar, Addl. Government Advocate for the respondent Nos. 1 and 5, Mr. Dhume the Chair Person of Child Welfare Committee (CWC)-respondent No. 2 in person and Mr. A. Gomes Pereira, learned Counsel for the respondent No.4.

2. Ms. G. Kamat, the learned Counsel seeks leave to delete respondent No. 3 from the array of respondents. Leave is granted. Necessary amendment to be carried out forthwith.

3. Rule. Rule is made returnable forthwith with the consent of and at the request of the learned Counsel for the parties.

4. The petitioner, in terms of Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (said Act) signed a Surrender deed in respect of a child, thereby surrendering rights in respect of a child in favour of the Child Welfare Committee. This was on 04.05.2019.

5. It is the case of the petitioner that on 01.07.2019 the petitioner telephonically intimated respondent no. 4 which is an agency for adoptions, of her intention to cancel the surrender. This was followed by some whatsapp messages, made to respondent No.4 again evincing intention to cancel the surrender. On 17.07.2019 the petitioner made representation to respondent No.4 reclaiming custody of the child.

6. The whatsapp messages produced on record by the petitioner indicate that the respondent No.4 did inform the petitioner that if she wishes to have the custody of the child, she should do so on the very date since, according to the respondent No.4, the said day was the last day in terms of Section 35 of the said Act.

7. Respondent No.4, then addressed a response dated 23.07.2019 to the petitioner expressing inability to accede to the request of the petitioner for reclaiming the custody of the child.

8. The petitioner thereupon addressed a representation dated 28.8.2019 to the CWC which was followed by legal notice dated 31.08.2019. Soon thereafter, the petitioner instituted the present petition.

9. Section 35 of the said Act reads thus:-

"35. (1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee.

(2) If, after prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall be executed by the parent or guardian, as the case maybe, before the committee.

(3) The parents or guardian who surrendered the child, shall be given two months time to reconsider their decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a specialised Adoption Agency, if he or she is below six years of age, or a children's home if he is above six years."

10. In terms of the aforesaid Section 35 of the said Act, the parent or guardian who surrenders their child are given two months time to reconsider their decision. In the present case, the fact that the petitioner wanted to reconsider her decision for surrender should have been intimated to CWC. However, the intimations were sent to respondent No.4, which is infact, the Adoption Agency.

11. To that extent, Mr. Dhume the Chair Person of CWC is quite right in his submission that no such request was received by CWC within the statutory period of two months.

12. However, taking into consideration the purposes and the objective of the enactment in the said Act, according to us, in the peculiar circumstances of the present case, the request of the petitioner for reclaiming the custody of the child is required to be considered by the CWC on its own merits and in accordance with law. The material on record, which does indicate that the petitioner had second thoughts about the surrender of the child within the period of two months from the date of surrender, though this may not have been communicated to the correct authority.

13. The petitioner however addressed communication po