Learned counsel for the petitioners relied upon a number of decisions of the apex Court with regard to the principles to be followed in deciding the custody of a child by a parent or guardian under the Hindu Minority and Guardianship Act and under the Guardians and Wards Act and contended that in the matter of custody of a child, the welfare and best interest of the child is the paramount consideration. He also submits that since opposite party no.3 abandoned the child, it cannot be said that it would be in the best interest of the child to give her custody to opposite party no.3. As has been seen earlier the committee is not competent to decide rival claims of right to custody of a child but only concerned with the care and protection of a child and for such purpose, in exercise of its power under the Act it can restore the child to its parents. Considering the age of the child and the circumstances under which opposite party no.3 had left her with another woman in Mangala Temple premises, the Child Welfare Committee, Cuttack decided to restore the child in favour of her mother (opposite party no.3) for her care and protection, which cannot be taken exception to.
Orissa High Court
Sebati Padhi & Another vs Unknown on 23 April, 2013
CRIMINAL REVISION NO.747 OF 2012
Citation; 2014(3)crimes 163 (orissa)
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
This revision has been filed challenging the order dated 15.11.2012 (Annexure-1) passed by the Child Welfare Committee, Cuttack (opp.party no.1) in Case No.607 of 2012 restoring the female child, namely, "Kandhei" to opposite party no.3, who is said to be the biological mother of the child.
2
2. The facts and circumstances leading to the passing of the impugned order as averred in the writ petition, are as follows : The two petitioners are mother and daughter respectively. On 08.09.2011 between 1.00 P.M. and 2.00 P.M. while the petitioners were in the premises of Kakatpur Mangala Temple, among others one Saudamini Giri of village-Kerendiapal, P.S.Kakatpur was also present inside the temple waiting for "Darshan". At that time, a young woman with a minor female child aged about eight months, said to have come from Kendrapara area who was also present inside the Mangala Temple, left the said female child with Saudamini Giri asking her to keep the child for a moment as the said lady wanted to go out to answer call of nature. On humanitarian ground Saudamini Giri held the child awaiting for return of the said lady. The lady however did not return for hours and a search for the lady made by Saudamini Giri and others produced no result. Saudamini Giri ultimately brought the matter to the notice of petitioner no.1, who took custody of the child. On that very day at about 5.00 P.M., the matter was reported at Kakatpur Police Station where Station Diary Entry No.155 dated 08.09.2011 was made to that effect for future reference. The matter was also widely published in the print media at that time. The petitioners named the child as 'Kandhei' and took care of her and brought her up with utmost love and affection as if the child was their own. It is alleged by the petitioners that on 13.09.2012 the S.D.P.O., Nimapara called the petitioners to the Police Station and under threat asked them to return "Kandhei" to opposite party no.3-Pinki Swain @ 3
Padmini Swain. The police forcibly took away the child from the petitioners and gave her to opposite party no.3 and also forcibly took signatures of the petitioners on some papers stating that the State Human Rights Commission has directed to restore the child to opposite party no.3. Opp.party no.3 in her petition before the State Human Rights Commission stated that she had visited Mangala Temple with her husband-Jagannath Swain and the child in question, who was then aged about 8 months, but her husband chalked out a plan to kill them on the way and therefore in order to save her life as well as the life of the child she left the child with Saudamini Giri and fled away from the clutches of her husband, and thereafter, she became mentally imbalanced and her husband ultimately deserted her.
In the meantime, as it transpires, that getting information about the abandonment of the child, the Puri Child Welfare Committee constituted under Section 29 of the Juvenile Justice (Care and Protection of Children) Act,2000 (herein after referred to as 'the Act') took cognizance of the matter, conducted a preliminary enquiry and ultimately vide their letter dated 23.09.2012 (Annexure-3) directed the Inspector-in- charge of Kakatpur Police Station to produce the child, "Kandhei" before the Child Welfare Committee, Cuttack for her care, protection, treatment and social integration. The Child Welfare Committee, Puri presumed that since Pinki Swain @ Padmini Swain had abandoned the child for about one year, the care, protection, treatment and social integration of the child could not be properly carried out by Pinki Swain @ Padmini 4
Swain(opposite party no.3). In pursuance of such direction the child was produced before the Child Welfare Committee, Cuttack, who transferred the child to Childrens' Home, Basundhara. Thereafter, the Child Welfare Committee, Cuttack conducted an enquiry and having come to the prima facie finding that Pinki Swain @ Padmini Swain is the biological mother of the child, directed for restoration of the child to her. The committee also directed Ganeswar Swain the father-in-law of opposite party no.3 and her other relations and in-laws to take all possible and appropriate steps for full fledged upbringing of "Kandhei" with further direction to produce the child before the CWC, Cuttack every six months.
3. It is alleged by the petitioners that the petitioners filed a written statement vide Annexure-4 before the Child Welfare Committee, Cuttack raising many valid grounds for not entertaining the claim of opposite party no.3 and also questioning the jurisdiction of Child Welfare Committee, Cuttack, but the said statement was neither taken into consideration nor the lawyers appointed by the petitioners were allowed to participate in the proceeding.
4. Challenging the impugned order the following contentions have been raised by the learned counsel for the petitioners : (i) the child, 'Kandhei' cannot be said to be a "child in need of care and protection" within the meaning of Section 2 (d) (ii) as because there is no allegation or any proof of the conduct of the petitioners within the meaning of sub clause(a) or (b) of Section 2 (d) (ii), and, 5
therefore the Child Welfare Committee had no jurisdiction to deal with the matter;
(ii) "Kandhei" being abandoned within the premises of Kakatpur Mangala Temple and thereafter being taken care of by the petitioners in their house within the district of Puri, the Child Welfare Committee, Puri was not competent to direct production of the child before the Child Welfare Committee, Cuttack, nor did the Child Welfare Committee, Cuttack had jurisdiction to decide the matter;
(iii) The Child Welfare Committee has no authority to decide the issue of custody of the child under Section 31 of the Act; and
(iv) The Child Welfare Committee, Cuttack did not adopt proper procedure as required under law. It also did not notice or hear the so called father of the child and ordered to restore the child to opposite party no.3, who herself had abandoned the child.
It is therefore, stated that interest of the child and her care and protection being the paramount consideration, the child has been left with opposite party no.3, who has no intention and means to protect the child.
5. Opposite party no.3 has filed a counter affidavit stating that time and again she approached the petitioners and the local gentries as 6
well as the local police for getting back her child and having failed she approached the State Human Rights Commission and as per the direction of the Commission to the Superintendent of Police, Puri, the police conducted an enquiry and found opposite party no.3 to be the biological mother of the child and accordingly they submitted the report to the Human Rights Commission. It is also stated that on 13.09.2012 petitioner no.1 voluntarily executed an agreement with Saudamini Giri and the latter executed another agreement with opposite party no.3 with respect to restoration of the child to opposite party no.3. The petitioners executed the agreement in order to avoid any future complication and that the allegation made by the petitioners that the police took signatures of the petitioners on some papers forcibly is not correct.
6. The Child Welfare Committee, Puri (opposite party no2.) has filed a counter affidavit stating inter alia that the letter vide Annexure-3 issued by the Child Welfare Committee, Puri was preceded by the proceedings of the Child Welfare Committee on 20.09.2012, 22.09.2012 and lastly on 23.09.2012, which were recorded after making enquiry at Kakatpur and perusal of the relevant documents handed over by the SDPO, Nimapara. It is stated that on preliminary enquiry and perusal of the agreements and immunization card of the child in question it was ascertained that the child hails from Cuttack and since the child was already handed over to opposite party no.3 and it needed care and protection, the Child Welfare Committee, Puri directed the Inspector-in- charge, Kakatpur Police Station to produce the child before the Child 7
Welfare Committee, Cuttack after tracing her out. The decision of the Child Welfare Committee, Puri for production of the child before the Child Welfare Committee, Cuttack was not guided by any other consideration except the interest of the child.
7. The Child Welfare Committee, Cuttack (opposite party no.1) has filed a counter affidavit through its Chairman. It is stated in the affidavit that the child, 'Kandhei' on being produced before the Child Welfare Committee, Cuttack on 24.09.2012 was sent to the Children's Home, Basundhara, Bidanasi. It is also stated that petitioner no.1 appeared personally before the Child Welfare Committee and submitted the written application stating that her daughter, Maheswata Dikshit (petitioner no.2) was fostering the child in question and, therefore, the child may be handed over to her as because they have developed relationship and affinity with the child. Another application was received from Padmini Swain (opposite party no.3), who claimed to be the biological mother of the child and prayed for restoration of the child to her. After receipt of such application, Child Welfare Committee, Cuttack fixed the matter to 02.10.2012 for hearing. The committee members personally visited P.H.C., Mahidharpada for verification of the daily register with respect to claim of opposite party no.3 that she was the biological mother of the child as because opposite party no.3 had submitted the birth certificate of the child and discharge certificate of Mahidharpada P.H.C. The committee also issued letter dated 29.09.2012 (Annexure-A/7) to the Medical Officer of Mahidharpada, PHC seeking 8
confirmation about the birth of the child to opposite party no.3. On 17.10.2012 petitioner no.2-Maheswata Dikshit filed a representation before the Child Welfare Committee, Cuttack asking for handing over the child to her for better care and protection. On 09.10.2012 petitioner no.1 filed a written version through her lawyer stating that since she has taken care of 'Kandhei' like her own child, she should be restored to her. Thereafter, the Child Welfare Committee, Cuttack started enquiry about the mother, and other family members to ascertain whether they were capable of taking care of the child. On enquiry and perusal of the documents and spot visit the Child Welfare Committee, Cuttack was satisfied that opposite party no.3 is the biological mother of the child, "Kandhei" and that her family including her father-in-law and other family members were capable for taking care of the child. The committee also took note of the order passed by the State Human Rights Commission wherein it had been observed that the petitioners, Sebati Padhi and Maheswata Dikshit had no legal right of custody over the child. It is stated that the Child Welfare Committee, Cuttack conducted enquiry as required under the Act and the Rules framed thereunder. The Child Welfare Committee has power under Section 39 to restore the child in need of care and protection to its parents in order of priority. Under the provision the parents have a preferential right over adoptive parents or foster parents to be restored with the child if they are capable of providing adequate care and protection to the child. After conducting due enquiry and being satisfied that opposite party no.3, the biological mother of the 9
child, and her family members are capable of providing care and protection to the child, the Child Welfare Committee, Cuttack passed the impugned order restoring the child, 'Kandhei' to opposite party no.3 with certain conditions.
8. From the pleadings of the parties the following issues arise for consideration:
(i) Whether the child, 'Kandhei' can be said to be a "child in need of care and protection" within the meaning of the Act, so that the District Child Welfare Committee can assume jurisdiction to conduct enquiry and pass necessary orders for care and protection of the child ? ; (ii) Whether in the facts and circumstances of the case, the Child Welfare Committee, Puri was competent to direct production of the child before the Child Welfare Committee, Cuttack and whether Child Welfare Committee, Cuttack had the jurisdiction to consider the question of care and protection of the child ? ; (iii) Whether the Child Welfare Committee is competent under the Act to decide the question of custody of the child in exercise of its power under the Act ? ; (iv) Whether the Child Welfare Committee, Cuttack conducted proper enquiry in accordance with the provisions of the Act and Rules framed thereunder?; and
10
(v) Whether the order of Child Welfare Committee, Cuttack directing restoration of the child in favour of opposite party no.3 is proper and legally justified ?
9. Issue No.(i) : Learned counsel for the petitioners submitted that since the conditions under sub-clauses (a) and (b) of Section 2 (d) (ii) are not satisfied inasmuch as the petitioners have never threatened to kill or injure the child, or have killed, abused or neglected any other child, it cannot be said that 'Kandhei' is a child in need of care and protection. Section 2(d) of the Act which defines "child in need of care and protection" is extracted hereunder:
"2(d) "Child in need of care and protection" means a child- (i) who is found without any home or
settled place or abode and without any
ostensible means of subsistence,
(ia) who is found begging, or who is either
a street child or a working child,
(ii) who resides with a person (whether a guardian of the child or not) and such
person-
(a) has threatened to kill or injure
the child and there is a
reasonable likelihood of the
threat being carried out, or
(b) has killed, abused or neglected
some other child or children and
there is a reasonable likelihood of
the child in question being killed,
abused or neglected by that
person,
11
(iii) who is mentally or physically challenged or ill children or children
suffering from terminal diseases or
incurable diseases having no one to
support or look after,
(iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over
the child,
(v) who does not have parent and no one
is willing to take care of or whose
parents have abandoned [or surrendered] him or who is missing
and run away child and whose parents
cannot be found after reasonable injury,
(vi) who is being or is likely to be grossly abused, tortured or exploited for the
purpose of sexual abuse or illegal acts,
(vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
(viii) who is being or is likely to be abused for unconscionable gains,
(ix) who is victim of any armed conflict,
civil commotion or natural calamity;"
10. Having regard to the facts of the present case, it is evident that the child, 'Kandhei' was left by a woman with a stranger in the premises of Mangala Temple at Kakatpur and it is only when the said woman did not return to the temple to take back the child, the petitioners took the child though she did not belong to them. Therefore, when the 12
child was found abandoned in the premises of the temple, she was without any home or settled place of abode and without any ostensible means of subsistence. Therefore, she is covered directly under Section 2 (d) (i) and must be treated to be a 'child in need of care and protection'. In the facts and circumstances of the case, she will not be covered under Section 2 (d) (ii). The issue no. (i) is accordingly answered.
11. Issue no(ii) : From the facts described in the writ application, counter affidavit of opposite party no.2 and the materials on record it reveals that though the child was abandoned inside the campus of Mangala temple at Kakatpur on 08.09.2011, apparently the Child Welfare Committee, Puri, which had originally the jurisdiction to deal with the child, had not taken cognizance of the matter suo motu prior to 20.09.2012. It was only after the news items were published in Oriya daily, 'The Samaj' dated 19.09.2012 and 20.09.2012 about the child, who had by then already been taken away from the petitioners by the SDPO, Nimapara and handed over to Padmini Swain (opposite party no.3) since 13.09.2012 that the Child Welfare Committee, Puri swung into action. Since by that time the child had already gone away to the jurisdiction of the Child Welfare Committee, Cuttack, the Child Welfare Committee, Puri, after making some enquiry directed the concerned police personnel to produce the child before the Child Welfare Committee, Cuttack for her care and protection. As it transpires, the child originally hailed from Kendrapara within the jurisdiction of the Child Welfare Committee, Cuttack. In such circumstances, the direction of the Child Welfare 13
Committee, Puri to the Inspector-in-charge of Kakatpur Police Station to produce the child before the Child Welfare Committee, Cuttack cannot be taken exception to. Even otherwise, irrespective of the competency of the Child Welfare Committee, Puri to give such direction, the Child Welfare Committee, Cuttack had the jurisdiction to take cognizance of the matter, since the child had already come to their jurisdiction being handed over to opposite party no.3 by the SDPO, Nimapara. Sub-section (1) of Section 38 of the Act provides that if during the enquiry it is found that the child hails from the place outside the jurisdiction of the Child Welfare Committee, the Child Welfare Committee shall order the transfer of the child to the competent authority having jurisdiction over the place of residence of the child. In view of such statutory provision, the exercise of jurisdiction by the Child Welfare Committee, Cuttack over the matter as 'Kandhei' by then was within its territorial jurisdiction is wholly justified.
12. Issue No.(iii) : Learned counsel for the petitioner submitted that the Child Welfare Committee, Cuttack by the impugned order handed over the custody of 'Kandhei' to opposite party no.3 treating her as the biological mother of the child, which is not within the power of the Child Welfare Committee under Section 31 of the Act. Section 31 of the Act provides as under :
"31. Powers of Committee.-(1) The committee
shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to 14
provide for their basic needs and protection of human rights.
(2) Where a Committee has been constituted
for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection."
Section 31 of the Act speaks about the power of the committee in general. However, sub section (3) of Section 39 of the Act confers power on the Child Welfare Committee to restore any child in need of care and protection to his parent, guardian, fit person or fit institution, as the case may be, and give them suitable directions. Sub- section (3) of Section 39 of the Act is quoted herein below : "39. xx xx xx xx (3) The committee shall have the powers to restore any child in need of care and protection to his parent, guardian, fit person or fit institution, as the case may be, and give them suitable directions. Explanation.- For the purposes of this section "restoration of and protection of a child" means restoration to -
(a) parents;
(b) adopted parents;
(c) foster parents;
(d) guardian;
(e) fit person;
(f) fit institution."
15
13. It is seen that in exercise of its power under sub section (3) of Section 39, the Child Welfare Committee, Cuttack has directed for restoration of 'Kandhei' to opposite party no.3 on being satisfied that opposite party no.3 is the biological mother of 'Kandhei'. Therefore, it is not a case of determination of custody of a child but it is restoration of child, 'Kandhei' to her parent within the meaning of the aforesaid provision. It is not a case of determination of the rights of the petitioners to take custody of the child vis-à-vis the right of opposite party no.3. A child staying with his/her parents may be one in need of care and protection, in which event the Child Welfare Committee may for the protection and rehabilitation of the child, direct for keeping the child in any fit institution or with any fit person contrary to the custodial rights of a parent or guardian. Under the Act, the Child Welfare Committee does not decide rival claims of custody of a child, though, it has power to restore the child to a parent or guardian if it considers such restoration to be in the interest of care and protection of the child. The issue no.(iii) is accordingly answered.
14. Issue Nos.(iv) and (v) : With respect to the enquiry conducted by Child Welfare Committee, Cuttack, it is the submission of the learned counsel for the petitioners that the Committee did not conduct proper enquiry in accordance with the provisions of the Act and the Rules framed thereunder. In particular, it is submitted that Section 54 of the Act provides for following such procedure in enquiries as may be prescribed and subject thereto, the Child Welfare Committee shall follow, 16
as far as may be, the procedure laid down in the Code of Criminal Procedure,1973 for trial in summons cases.
Procedure for enquiry by the committee has been prescribed in Rule 28 of the Juvenile Justice (Care and Protection of Children) Rules,2007 (in short 'the Rules') framed by the Central Government.
Rule 28 provides as under :
"28. Procedure for inquiry.- (1) When a child is brought before the Committee, the Committee shall assign the case to a social worker or caseworker or child welfare officer or Officer-in-charge as the case may be, of the institution or any recognized agency for conducting the inquiry through an order in Form XII.
(2) The Committee shall direct the concerned
person or organization about the details or particulars to be enquired into for developing an individual care plan and suitable rehabilitation. (3) All inquiries conducted by a social worker or caseworker or child welfare officer or Officer-in- charge of the institution or any recognized agency shall be as per Form XIII and must provide an assessment of the family situation of the child in detail, and explain in writing whether it will be in the best interest of the child to restore him to his family. (4) The inquiry must be completed within four months or within such shorter period as may be fixed by the Committee:
Provided that the Committee may, in the best
interest of the child and for the reasons to be 17
recorded in writing, extend the said period under special circumstances.
(5) After completion of the inquiry, if, the child is under orders to continue in the children's home, the Committee shall direct the Officer-in-charge of the home to submit quarterly progress report of such child and produce the child before the Committee for an annual review of the progress."
15. It transpires from the records of Child Welfare Committee, Cuttack that instead of assigning the case to a social worker or caseworker or Child Welfare Officer, as envisaged in Rule-28(1), the Child Welfare Committee, Cuttack itself conducted the enquiry on the basis of the written application and statements and the documents filed by opposite party no.3 and the petitioners. Opposite party no.3 along with her claim statement submitted documents with regard to her and the child's identity, such as voter list, the discharge certificate issued by the PHC,Mahidharpada indicating admission of opposite party no.3 in the PHC on 18.09.2010 and giving birth to a female child on 19.09.2010, and also a birth certificate with regard to birth of such female child. In her petition opposite party no.3 has described the circumstances and the conduct of her husband, which compelled her to leave the child with another woman in order to save the life of the child. As asserted in their counter affidavit, the members of the Child Welfare Committee, Cuttack personally visited PHC, Mahidharpada for verification of different registers with respect to the claim of opposite party no.3 that she was the biological mother of the child. The stand taken by the Child Welfare Committee, 18
Cuttack in their counter affidavit remains uncontroverted. The committee also called for and obtained report from the Medical Officer of Mahidharpada PHC which they took into consideration in passing the impugned order. Rule 28 of the Rules does not prescribe in detail the manner of conducting enquiry. Therefore, as per the provision of Section 54 (1) of the Act the procedure laid down in the Cr.P.C. in Chapter-XX relating to trial of summons cases shall, as far as may be, followed. The expression "as far as may be" signifies that all the provisions of the Cr.P.C. for trial of summons cases shall not be followed and that only those provisions, which are relevant and suitable for the purpose of inquiry under the Act, may be followed. Therefore, the only provision for trial of summons cases which may be relevant for inquiry by the committee is Section 254 of the Cr.P.C. which provides for hearing the prosecution and the accused and to take all such evidence as they may choose to produce and for issuing summons to any witness to give evidence or to produce any document. Apparently, such procedure has been followed by the Child Welfare Committee, Cuttack in conducting inquiry and coming to the conclusion that opposite party no.3 is the biological mother of the child, Swati @ 'Kandhei', in absence of any other person claiming paternity and that opposite party no.3, her father-in-law and other relations are capable of providing care and protection to the child. Therefore, it was a fit case for restoring the child to opposite party no.3. The records of the Child Welfare Committee in relation to the enquiry also contained the undertakings given by opposite party no.3 and 19
her father-in-law in Form-IX, as required under Rule 27(17) of the Rules. In the aforesaid circumstances, I am of the view that the procedure as provided under the law for enquiry has been substantially followed by Child Welfare Committee, Cuttack and, therefore, their decision under Annexure-1 for restoration of the child, 'Kandhei' in favour of her mother (opposite party no.3) does not suffer from illegality or any other infirmity.
16. Learned counsel for the petitioners relied upon a number of decisions of the apex Court with regard to the principles to be followed in deciding the custody of a child by a parent or guardian under the Hindu Minority and Guardianship Act and under the Guardians and Wards Act and contended that in the matter of custody of a child, the welfare and best interest of the child is the paramount consideration. He also submits that since opposite party no.3 abandoned the child, it cannot be said that it would be in the best interest of the child to give her custody to opposite party no.3. As has been seen earlier the committee is not competent to decide rival claims of right to custody of a child but only concerned with the care and protection of a child and for such purpose, in exercise of its power under the Act it can restore the child to its parents. Considering the age of the child and the circumstances under which opposite party no.3 had left her with another woman in Mangala Temple premises, the Child Welfare Committee, Cuttack decided to restore the child in favour of her mother (opposite party no.3) for her care and protection, which cannot be taken exception to.
20
In the days when the evil of female foeticide is rampant in the society, the conduct of the petitioners in fostering the female child, 'Kandhei' and taking good care of her for a year is indeed commendable. Kandhei being taken away from their care, they have felt a sense of deprivation. Their sentiment is understandable and the court has all the sympathy for them, but the law has to take its own course and the petitioners have to abide by the same. This Court only observes that if the petitioners so like they may see and meet Kandhei once in a year for an hour or two in presence of the Child Welfare Committee, Cuttack, who shall make arrangement for the same on an application being made by the petitioners in that regard.
Subject to the aforesaid observation the CRLREV is dismissed.
......................
B.K.Nayak,J.
Orissa High Court, Cuttack
The 23rd April, 2013/Gs .
No comments:
Post a Comment