Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Mad) 4271

High Court of Judicature at Madras
R.S. RAMANATHAN
Seva Chakkara Samajam rep. by its Secretary
Versus
The Chairman Child Welfare Committee & Others
C.R.P(PD)Nos. 3434 & 3435 of 2012
Decided on: 16-10-2012

Advocates Appeared:
For the Petitioner:M.S. Krishnan, Senior Counsel for M/s.Saravabhauman Associates, Advocates.
For the Respondents:R1, R2 & R4, No appearance, R3, Mrs.Saraswati Shivaram Iyer, Govt. Advocate (C.S).

Ratio
The Child Welfare Committee has jurisdiction only in respect of the ’child in need of care’ and the child entrusted to the custody of the child welfare home by its mother could not be termed as ’child in need of care’.

Headnote:(A)Juvenile Justice (Care and Protection of Children) Act, 2000(56 of 2000)-Sec.2(d), 30-Juvenile justice-Child in need of care-Child welfare committee-Jurisdiction-Petitioner society was entrusted with the custody of two children by their mothers-When the committee had directed the petitioner to produce one child before it periodically and hand over another child to another trust, petitioner challenged both orders-While the petitioner contended that the children were entrusted to the custody of the petitioner by their respective mothers and they could not be termed as ’children in need of care’ and so the Committee did not have jurisdiction to pass the impugned orders, respondent resisted them and contended that as against the orders passed by it, only appeals lie-Held, the Child Welfare Committee had jurisdiction only in respect of the ’child in need of care’ and the child entrusted to the custody of the petitioner by its mother could not be termed as ’child in need of care’-As the respondent had no jurisdiction to pass the impugned orders, writ petition could be filed to challenge the same-Revision was allowed and the impugned orders were set aside.

       (B)Juvenile Justice (Care and Protection of Children) Act, 2000(56 of 2000)-Sec.2(d), 30-Juvenile justice-Child in need of care-Child welfare committee-Jurisdiction-The Child Welfare Committee has jurisdiction only in respect of the ’child in need of care’ and the child entrusted to the custody of the child welfare home by its mother could not be termed as ’child in need of care’.
       Therefore, a reading of the various provisions of Chapter III of the Act, makes it clear that the Child Welfare Committee is constituted to exercise powers and to discharge duties only in relation to child in need of care and protection and in respect of other child, as defined under Section 2(k), the Committees shall have a final Authority to dispose of all the cases for care, treatment, education, training, development and rehabilitation of the children as well as to provide the basic needs and protection of Human Rights. Further, Section 31(2) of the Act also makes it clear that the Child Welfare Committee shall have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection. Para 16
       A reading of the affidavit filed by the mother would also make it clear that the child Bhavana cannot be brought under the ambit of Section 2(d)(v) Act, as the mother of the child has not abandoned her, but, only entrusted for proper custody. Therefore, the two children, by name S.C.Sairam and Bhavana came to the custody of the revision petitioner-Society through their respective mother, and therefore, they cannot be considered as child in need of care and protection, as per the provisions defined in Section 2(d) of the Act. Para 19

Judgement Key Points

Key Points: - The Child Welfare Committee has jurisdiction only in respect of the ’child in need of care and protection’; a child entrusted to custody by the mother may not fall under that category (!) (!) . - The petitioner-society’s two children, S.C.Sairam and Bhavana, were not ‘children in need of care and protection’ under Section 2(d); thus the Committee had no jurisdiction over them (!) (!) . - The High Court can entertain these petitions under Article 227 and also via Section 53 of the Act to scrutinize orders for legality or propriety when the Committee/ authorities acted without jurisdiction (!) (!)

What is the jurisdiction of the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2000 in relation to a 'child in need of care and protection'?

What is the status and eligibility of children entrusted to custody of a society or institution by their mothers, in terms of being categorized as 'children in need of care and protection'?

What remedies or powers does the High Court have under Sections 53 and 227 of the Constitution when a Child Welfare Committee or competent authority acts without jurisdiction?

ORDER:

1. These two Civil Revision Petitions are filed challenging the orders, dated 6.7.2012, passed in C.W.C.Nos.170 & 171 of 2012, by the respondents 1 and 2, thereby, directing the production of one child, by name S.C.Sairam, aged about 2 = years before the Child Welfare Committee in the first week of every month and for handing over another child, by name, Bhavana, to Balamandir Kamaraj Trust, viz., the fourth respondent herein.

2. Mr.M.S.Krishnan, the learned Senior Counsel appearing for the revision petitioner submitted that the revision petitioner is a Society, registered under the Tamil Nadu Societies Registration Act and is recognized and approved by the Ministry of Home Affairs, Government of India, under the provisions of Foreign Contribution (Regulation) Act, 1976. The Society is also registered under the Orphanages & Other Charitable Homes (Supervision and Control) Act, 1960.

3. The learned Senior Counsel for the revision petitioner further submitted that the revision petitioner-Society is also registered under Section 34 (3) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). As per the registration under the Act, the revision petitioner-Society has gained a status of Children's Home, defined under Section 2(e) of the said Act and it is taking care of 176 children, who are in need of care and protection. The Authorities under the said Act also, periodically, visited the revision petitioner-Society and so far, no adverse remarks are made by the Authorities constituted under the Act.

4. While so, on 29.06.2012, the Child Welfare Officer, by name Mrs.Shanthi, along with her Junior Assistant, one L.Revathi, visited the revision petitioner-Society and gave instructions to the Society to produce the three months old child, by name Bhavana before the Child Welfare Committee through Child Line, on or before, 2.7.2012, and also directed for the production of all the children under the Society, who are below the age of five years before the Child Welfare Committee to get their opinion and the same should be reported to the Child Welfare Officer, on or before, 02.07.2012.

5. In compliance of the above said directions given by the Child Welfare Officers, the child, by name S.C.Sairam, aged 2= years and other child, viz., Bhavana, aged about three months were produced and the details regarding the manner, in which, those two children came into the custody of the revision petitioner-Society were also furnished. Thereafter, the first respondent passed the impugned order, on 06.07.2012, thereby, directing the revision petitioner-Society, to produce child, S.C.Sairam, before the Child Welfare Committee in the first week of every month and also directed the revision petitioner-Society to provide proper care and facilities to the said child and the revision petitioner-Society should strictly adhere to the norms, as laid down under the Act.

6. The learned Senior Counsel for the revision petitioner-Society has no objection for the conditions stipulated, viz., the condition that the child should be provided with much proper care and facilities and the revision petitioner-Society should strictly adhere to the norms, as laid down under the Act. But the order of the first respondent, directing the revision petitioner-Society to produce the child, S.C.Sairam, before the Child Welfare Committee in the first week of every month is not in accordance with law. Therefore, that part of the order is challenged in C.R.P.No.3434 of 2012.

7. The learned Senior Counsel for the revision petitioner-Society further submitted that on the same date itself, the respondents 1 and 2 passed the order in respect of the another child Bhavana, aged three months and directed the revision petitioner-Society to handover the said child to Balamandir Kamaraj Trust, viz., the fourth respondent in C.R.P.No.3435 of 2012 and that order is challenged in C.R.P.No.3435 of 2012.

8. The learned Senior Counsel for

Click Here to Read the rest of this document