Petitioner challenged placement of child Martin in a Children's Home via habeas corpus. Court dismissed petition, holding placement under Juvenile Justice Act by Child Welfare Committee was legal. Alternative statutory remedies available.
Writ of habeas corpus dismissed; petitioner directed to approach competent statutory authorities under the Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
WP(Crl.).No.409 OF 2019
PETITIONER/S:
AQUINA, AGED 60 YEARS W/O. MATHEW, THANNIKODE (H), ST. MARYS MERCY HOME, VELUR, THRISSUR 680 601. BY ADVS. SRI.C.A.ANOOP SMT.R.KRISHNA
RESPONDENTS:
2 CHAIRMAN, CHILD WELFARE COMMITTEE, OFFICE, VIYYUR, THRISSUR 680 009.
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dias,J
The petitioner seeks a writ of habeas corpus on the allegation that, a child named Martin, who is in need of care and protection, is under the illegal detention of the 1st respondent.
2. The petitioner has filed the writ petition, inter alia, asserting that the child Martin and his two siblings were entrusted to the petitioner by their parents long back, due to their financial difficulties and due to other
circumstances. The petitioner was taking good care of the children. Later, ten years back, on an anonymous complaint,
some officials went and took the
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children, including the alleged detenu, and placed them with the Children's Home, Viyyur. The petitioner used to visit the alleged detenu at the Children's Home. The child had expressed his desire to live with the petitioner.
3. The petitioner alleges that the
child was taken away from her and is now under illegal detention of the 1st respondent. The petitioner and the child have made Exts.P4 and P5 representations, but there is no response. Hence, this writ petition.
4. Pursuant to the interim order dated 20.11.2019, the learned Government Pleader has filed a memo with the statement of the Child Welfare Committee, Thrissur and the
report of the District Child Protection
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Officer, Thrissur.
5. It is mentioned in the statement of
the Child Welfare Committee that the alleged detenu and his siblings were physically and sexually abused by the husband of the petitioner,Mr.Antony Baby, while the children were in an unauthorised institution managed by them at Thrissur.
6. Consequently, the children were transferred to the Government Children's Home, Thrissur and the children were placed in foster care with two families. However, foster care failed. It is also reported that on 16.11.2018, Mr.Antony Baby took away Martin from school and a complaint was filed before the Viyyur Police Station.
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7. Subsequently, the petitioner sought
permission of the Child Welfare Committee, to take Martin for a retreat, but the same was rejected. The order of the Committee has become final.
8. The District Child Protection Officer who was also ordered to conduct an an enquiry, has reported that as per the records, the alleged detenu's parents are Priya and Sajeevan and the petitioner has no relationship with the child and that the Child Protection Officer cannot recommend the release of the child to the petitioner.
9. In view of the statement filed by the Child Welfare Committee and the District Child Protection Officer, we are of the opinion that, the allegation in
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the writ petition that the child is under the illegal detention of the 1st respondent is incorrect and unwarranted.
10. The alleged detenu, who is a child in need of care and protection, is placed with a statutory institution functioning under the Juvenile Justice (Care and Protection of Children) Act, 2015,(in short “Act”) as per the order of the Child Welfare Committee, the competent authority under the Act. By no stretch of imagination can the Committee be said to be illegally detaining the child, when the legislature has conferred the committee with the power to protect all children in need of care and protection.
11. If the petitioner is aggrieved by
the order placing the child with an
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institution functioning under the Act, there are alternative remedies provided under the Act, for redressal of her grievance. Under no circumstances, a writ of habeas corpus is maintainable, that too on the allegation that the child in need of care and protection is being illegally detained by the statutory Committee.
12. Therefore,we find no circumstances warranting the issuance of a writ of habeas corpus under Article 226 of the Constitution of India, to hand over the child to the petitioner. The petitioner would be at liberty to approach the competent statutory authorities under the Act and the rules framed thereunder, for
appropriate reliefs, if she so desires.
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The writ petition is disposed of,
accordingly.
Sd/- K.HARILAL, JUDGE
ma/26/11/2019 Sd/-C.S.DIAS,JUDGE
/True copy/ P.S to Judge
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE BAPTISMS CERTIFICATE. EXHIBIT P2 THE TRUE COPY OF THE BIRTH CERTIFICATE OF THE CHILD. EXHIBIT P3 THE AADHAR CARD ISSUED IN THE NAME OF CHILD. EXHIBIT P4 THE TRUE COPY OF THE REQUEST LETTER SEND TO THE 2ND RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE REQUEST LETTER MADE BY THE CHILD.
3 issues framed by the court
Whether a writ of habeas corpus is maintainable against a statutory committee placing a child in need of care and protection in a government home.
Whether the detention of a child by a Children's Home under the Juvenile Justice Act constitutes illegal detention warranting habeas corpus.
What alternative remedies exist for an individual aggrieved by an order of a Child Welfare Committee.
2 provisions across 2 enactments
AQUINA
SUPERINDENTENT, GOVERNMENT CHILDRENS HOME, RAMAVARMAPURAM
K HARILAL
C S DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
