R. Arivazghagan v. The Secretary to Government of Tamil Nadu, Social Welfare Department (Social Defence) & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.04.2009C O R A MTHE HONOURABLE Mr.JUSTICE S.NAGAMUTHUWrit Petition No.4436 of 2009andM.P.Nos.1 to 3 of 2009R.Arivazghagan ..Petitioner -Vs-1. The Secretary to Government of Tamil Nadu, Social Welfare Department (Social Defence) Fort St. George, Chennai 92. Children Welfare Committee, rep. By its Chairman, Department of Child Welfare Defence, Government of Tamil Nadu, 300,P.H.Road, Kellys, Chennai.103. Mrs.Prabavathy @ Velankanni4. Mr.David Selvlaraj5.Mrs.Jayakumari ..Respondents . . .Petition filed under Article 226 of the Constitution of India prayingfor the issuance of a writ of certiorarified mandamus to call for therecords relating to the proceedings of the second respondent inproceedings bearing C.W.C. Profile No.224/2008 and 225 of 2008 dated30.12.2008, quash the same and consequently issue a mandamus to therespondents herein to restore the custody of minor children SakthiEaswaran and Sakthi Saran to the petitioner. . . . For petitioner : Mr. T.T.Ravichandran For respondents : Mrs.Malarvizhi Udhayakumar, Spl.Govt.Pleader (R1 & R2) Mr.J.I.Rajkumar (R4 & R5) N A - R3 . . . https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is the biological father of the two childrennamely, Sakthi Easwaran and Sakthi Saran, who were born on03.04.2007. His wife Mrs.A.Madhubala was suffering from Tuberculosisand so she was unable to maintain the children. Therefore, accordingto the petitioner, as a temporary arrangement, the children werehanded over to the third respondent, Mrs.Prabavathy, who is closelyknown to them. It is further alleged that without their knowledge,the third respondent had handed over the children to the custody ofrespondents 4 and 5, who are professing Christianity. It is furtherstated that when the petitioner enquired, the third respondent toldhim that respondents 4 and 5 would keep the children safely andreturn them as soon as the wife of the petitioner recovered fromillness. After some time, when the petitioner demanded the custody ofthe children, respondents 4 and 5 refused. On one occasion, whenhis wife went to see the children at the house of the respondents 4and 5, she found that one child had burn injury in his left hand andthe other child had minor bruise in his face. Since respondents 4and 5 refused to hand over the children, the petitioner preferred acomplaint to the police at Poonamallee on 07.10.2008. But no actionwhatsoever was taken on the same. Another representation was made on24.10.2008 in this regard to the police. Acting on the complaint ofthe petitioner dated 07.10.2008, Poonamallee Police rescued thechildren from the custody of respondents 4 and 5 and brought them tothe police Station. In the Police Station, during enquiry,respondents 4 and 5 claimed that there was an Adoption Deed executedby the petitioner and his wife on 19.07.2007 making a valid adoptionin their favour and the children were also handed over to them. Thepetitioner and his wife refuted the same. Therefore, the policehanded over the custody of the children to the Child WelfareCommittee-Second respondent herein. The Committee, in turn handedover the children for custody to a shelter Home at T.Nagar, Chennai. 2. Thereafter, the 5th respondent filed H.C.P.1696 of 2008before this Court, in which the petitioner and his wife wererespondents 3 and 4, for production of the children and for handingover to the 5th respondent herein. In the affidavit, it was allegedby the 5th respondent herein that the children were given inadoption validly and from the date of the said Deed of Adoption, thechildren were in the legal custody of respondents 4 and 5. It wasfurther alleged that the Deed of Adoption was executed on 19.02.2007and the same was registered as Document No.1377 of 2007 on the fileof the Sub Registrar, Poonamalle. 3. In the counter filed in the said H.C.P. it was contendedby the petitioner and his wife that there was no valid Adoption andthe Deed of Adoption produced before the Court was obtained by fraudas they were made to sign the said document without knowing the https://hcservices.ecourts.gov.in/hcservices/ contents of the same. Therefore, according to the petitioner,respondents 4 and 5 have no right to have the custody of the minorchildren.4. During the hearing of the case, the children wereproduced before the Division Bench. After considering the rivalclaims, the Division Bench passed the following order:"After receipt of notice, the second respondentproduced the minor children. The subject matterof the petition is with regard to custody ofchildren and the dispute is between the naturaland adoptive parents. Already a petition is pendingbefore the first respondent-chairperson of theChild Welfare Committee constituted under Section29 of the Juvenile Justice (Care and Protection ofChildren) Act,2000. Hence, we consider itappropriate to close the Habeas Corpus petitiondirecting the petitioner to appear before the firstrespondent within two weeks from today and based onthe order passed by the first respondent, theparties shall work out their remedy according tolaw and accordingly, the Habeas Corpus petition isclosed."5. In pursuance of the said order, enquiry was taken up bythe second respondent during which the petitioner submitted hisobjections for the claim made by respondents 4 and 5 and wanted thechildren to be handed over to him.6. The second respondent passed an order restoring thecustody of the children to respondents 4 and 5 on certain conditionsand after executing necessary bond. Accordingly, on 26.12.2008,respondents 4 and 5 executed a bond and took the custody of thechildren.7. Thereafter, the petitioner once again filedH.C.P.2144/08 before this Court for production of the children and tohand over them to him alleging that the second respondent had handedover the children to respondents 4 and 5 without holding properenquiry and without considering the rival claims. The said H.C.P. wasadmitted on 30.12.2008 and notice was ordered. When the writ petitioncame up for hearing on 19.01.2009, the second respondent hereinproduced its final order in CWC.Profile No. 224 of 2008 and 225 of2008 dated 30.12.2008 passed under Section 39(3) and 42(1) and (2) ofthe Juvenile Justice (Care and Protection of children) Act 2000,thereby declaring respondents 4 and 5 as Fit Persons under Section 2(1) of the Act and sending the children to the foster care basisunder Section 42 (1) and (2) of the said Act. Recording the same,the Division Bench disposed of the H.C.P and directed the petitioner https://hcservices.ecourts.gov.in/hcservices/ to approach the appellate Authority if so advised. The petitioner hasnot filed any appeal against the said order of the second respondentdated 30.12.2008 and instead he has come forward with this writpetition challenging the said order.8. The crux of the contentions of the petitioner in thiswrit petition is that the second respondent has not scrupulouslyfollowed the provisions of the Act and has acted in an arbitrarymanner to hand over the custody of the children to respondents 4 and5. It is further contended that there is no need to keep the childrenin the foster care as provided in Section 42(1) and (2) of the Actsince the said provision would be applicable in respect of infantswho are ultimately to be given for adoption. In this case, accordingto the petitioner, since there is no such proposal on the part ofthe second respondent to give the children for adoption, there is noquestion of keeping the children under foster care as provided underSection 42 (1) and (2) of the Act. The petitioner would furthercontend that the so-called adoption said to have been given by thepetitioner and his wife in favour of respondents 4 and 5 is not trueand therefore, the finding of the Committee that respondents 4 and 5are fit persons to keep the custody of the children is not correct.Being the biological parents, the petitioner and his wife areentitled to have the custody of the children and therefore, accordingto him, the impugned order is liable to be set aside, it is contended.9. In respect of the maintainability of the writ petition,it is the contention of the petitioner that though, of course, thereis alternative remedy of appeal provided under Section 52 of the Act,since the impugned order is absolutely without jurisdiction, thiswrit petition is maintainable.10. It is the contention of respondents 4 and 5 thatadoption is true and valid and the Deed of adoption was executed withfull consent. It is further contended that from the date of adoptionthe children were in their custody, and as a matter of fact, the nameof the children were changed as Gladson and Giftson. But the childrenwere illegally removed from their custody by the Police and handedover to the second respondent and thereafter, the second respondenthas passed the impugned order handing over the children to them onascertaining the entire facts and circumstances of the case in theinterest of the welfare of the minor children. Therefore, accordingto respondents 4 and 5 , the writ petition is liable to bedismissed. 11. No counter has been filed by respondents 1 to 3.However, the learned Special Government Pleader made her submissionssupporting the order passed by the second respondent.12. I have considered the rival submissions and also perusedthe records thoroughly. https://hcservices.ecourts.gov.in/hcservices/

13. Before going into the facts of the case, since thequestion of jurisdiction of the second respondent is mainly involvedin this case, it is better to analyse this first: Section 2 (d) ofthe Act defines "the children in need of care and protection", whichis as follows:"Child in need of care and protection" means a child (i) who is found without any home or settled place or abodeand without any ostensible means of subsistence, (ii) who resides with a person(whether a guardian of thechild or not) and such person:(a) has threatened to kill or injure the childand there is a reasonable likelyhood of thethreat being carried out, or(b) has killed , abused or neglected someother child or children and there is areasonable likelihood of the child in questionbeing killed, abused or neglected by thatperson,(iii) who is mentally or physically challenged or ill childrenor children suffering from terminal deceases or incurablediseased having no one to support or look after, (iv) who has a parent or guardian and such parent or guardian isunfit or incapacitated to exercise control over the child,(v) who does not have parent and non one is willing to take careof or whose parents have abandoned him or who is missing andrunaway child and whose parents cannot be found after reasonableinjury;(vi) who is being or is likely to be grossly abused, tortured orexploited for the purpose of sexual abuse or illegal acts, (vii) who is found vulnerable and is likely to be inducted intodrug abuse or trafficking,(viii) who is being or is likely to be abused for unconscionablegains,(ix) who is victim of any armed conflict, civil commotion ornatural calamity." https://hcservices.ecourts.gov.in/hcservices/

14. Chapter III of the Act deals with the child, who needscare and protection. Under Section 29 of the Act, the StateGovernment is empowered to constitute a Child Welfare Committee.Section 31 of the Act deals with the powers of the Committee whichstates that the Committee shall have the final authority to disposeof cases for the care, protection, treatment, development andrehabilitation of the children as well as to provide for their basicneeds and protection of human rights. Section 32 deals withproduction of any child in need of care and protection before theCommittee by authorities like the Police Officer etc. Under Section33 of the Act, the Committee has been empowered to hold enquiry andpass an order to send the child to the Children's home for a speedyenquiry by a social worker or child welfare officer. Section 35empowers the State Government to appoint Inspection Committees forthe children's home and Section 37 deals with shelter homes andChapter IV of the Act deals with rehabilitation and Socialreintegration which is as follows:"Chapter IV. 40. Process of Rehabilitation andSocial reintegration: The rehabilitation and socialreintegration of a child shall begin during the stayof the child in a children's home or special homeand the rehabilitation and social reintegration ofchildren shall be carried out alternatively by (i)adoption,(ii) foster care, (iii) sponsorship and(iv) sending the child to an after-careorganisation."15. Section 41 of the Act deals with mode of givingadoption, which reads as follows:"41. Adoption: (1) The primary responsibility forproviding care and protection to children shall be thatof his family.2) Adoption shall be resorted to for the rehabilitationof such children as are orphaned,abandoned, neglectedand abused through institutional and non institutionalmethods. (3) In keeping with the provisions of the variousguidelines for adoption issued from time to time by theState Government, the Board shall be empowered to givechildren in adoption and carry out such investigations asare required or giving children in adoption in accordancewith the guidelines issued by the State Government fromtime to time in this regard. https://hcservices.ecourts.gov.in/hcservices/ 4) the children's homes or the State Government runinstitutions for orphans shall be recognised as anadoption agencies both for scrutiny and placement of suchchildren for adoption in accordance with the guidelinesissued under sub section (3).5. No child shall be offered for adoption:(a) until two members of the Committee declarethe child legally free for placement in the caseof abandoned children,(b) till the two months period forreconsideration by the parent is over in the caseof surrendered children, and (c) without his consent in the case of a childwho can understand and express his consent.6) The board may allow a child to be given in adoption:-(a) to a single parent and(b) to parents to adopt a child of same sexirrespective of the number of living biologicalsons or daughters."16. Section 42 provides for foster care, which is as follows: "42. Foster Care: (1) The foster care may be used fortemporary placement of those infants who areultimately to be given for adoption.(2) In foster care, the child may be placed inanother family for a short or extended period oftime, depending upon the circumstances where thechild's own parent usually visit regularly andeventually after the rehabilitation, where thechildren may return to their own homes.(3) The State Government may make rules for thepurposes of carrying out the scheme of foster careprogram of children."17. If the provisions are examined thoroughly, it would makemanifestly clear that Chapter 3 and 4 of the Act, would be applicableonly in respect of a child in need of care and protection and not inrespect of other children who is a child in need of care andprotection has been defined in Section 2(d) of the Act as extractedabove. If only, a child falls within any of the definitions of the https://hcservices.ecourts.gov.in/hcservices/ term 'child in need of care and protection' as defined in Section 2(d) of the Act, then such a child would be produced by the policeunder Section 32 of the Act before the Committee with a report.18. Coming to the facts of the case, it is not as though thechildren in question were found without any protection or settledplace of abode and without any ostensible means of subsistence. Itis also not the case that children are likely to be grossly abused,tortured or exploited for the purpose of sexual abuse or illegalacts. It is not the case of any of the parties that the children inquestion would fall within any of the definitions of Section 2(d) ofthe Act. When there is a dispute regarding the right to custody ofthe children between the biological father and the foster parents,the said dispute has to be resolved only by appropriate civil Court.The police authorities have no power to take the children from thecustody of the foster parents and hand over them to the Committee.Thus the very act of the Police in this case, taking the childrenfrom the custody of the respondents 4 and 5 is without jurisdiction. 19. Turning back to the scheme of the act, Section 33speaks of power of enquiry by the Committee. After such enquiry, theCommittee may pass an order to send the child to the Children's Home.In this case, accordingly, the children were sent to Home for safecustody. Thereafter, as directed by the Division Bench of thisCourt, the parties approached the second respondent and raised theirrespective claim. However, the Division Bench had no objection togive any finding as to whether the Committee has jurisdiction underthe Act to proceed further to decide the dispute with regard to thecustody. Since the children were in the Home as directed by theCommittee, the Division Bench directed the parties to approach theCommittee. At any rate, the second respondent cannot assumejurisdiction on the basis of the order of the Division Bench.20. During the enquiry held, the Committee ought to haveseen whether it has got jurisdiction under the Act to decide thequestion regarding the right to custody of the children or not. Butthe Committee has failed to do so. There can be no second opinionthat the Committee will have no jurisdiction to decide the saidquestion. Since the dispute is in respect of legal right to havecustody between the biological parents and the foster parents, theCommittee ought not to have ventured to decide the said disputedquestion as the same is not within its jurisdiction. The Committeeought to have referred the parties to resolve the said dispute beforea competent Civil Court. 21. Curiously, in the impugned order the Committee declaredthe respondents 4 and 5 as "Fit persons" under Section 2 (i) of theAct and has directed the children to be in the "foster care" of thesecond respondent. Section 42(1) of the Act which deals with fostercare can be pressed into service by the Committee, if only the https://hcservices.ecourts.gov.in/hcservices/ children in question are going to be given for adoption. But therewas no such proposal on the part of the second respondent,Committeeto give the children in question in adoption as provided underSection 41 of the Act in future. Therefore, the impugned orderdeclaring respondents 4 and 5 as Fit persons and directing thechildren to be kept in the foster care is wholly withoutjurisdiction. Thus, looking from any angle, the impugned order isliable to be set aside.22. In respect of the maintainability of the present writpetition, it is the contention of respondents 4 and 5 that since theorder under challenge is appealable under Section 52 of the Actand since the said remedy is efficacious one , this Writ petition isnot maintainable. It has been settled in a catena of decisions b ythe Hon'ble Supreme Court that mere availability of alternativeremedy would not oust the jurisdiction of the High Court underArticle 226 of the Constitution of India. On the contrary, if suchremedy more efficacious, the writ Court shall restrain itself fromexercising its jurisdiction under Article 226 of the Constitution ofIndia. At the same time, when the order under challenge is found tobe wholly without jurisdiction, then there is no embargo for thisCourt to entertain the writ petition so as to drive the parties toresort to the alternative remedy. In the instant case, as I havealready held since the impugned order is wholly withoutjurisdiction, I hold that this writ petition is maintainable.23. As I have already stated, the question whether theadoption said to have been given in favour of respondents 4 and 5 bythe petitioner is valid or not and whether the same is void , is amatter to be resolved only by the Civil Court on evidence. ThisCourt cannot give any opinion regarding the same in this writpetition. Therefore, the parties can be only directed to approach theCivil Court in this regard.24. It is contended by the learned counsel for thepetitioner that until the petitioner approaches the Civil Court, thechildren may be ordered to be handed over to him and his wife. Butthe learned counsel for the respondents 4 and 5 would submit thatsince the children had been all along in their custody before thepolice took them and also after 26.12.2008 as per the order of theCommittee,they may ordered to be in the custody of respondents 4 and5. It is unfortune that there has been a legal fight between thebiological parents of the children and the alleged foster parents ofthe children, before the forum which have got no jurisdiction toresolve the dispute. Admittedly, the children were only in thecustody of respondents 4 and 5 until they were rescued by the police.Therefore, the order of the committee handing over the children torespondents 4 and 5 has to be set aside and the original positionhas to be necessarily restored. Therefore, the custody of thechildren have to be restored to respondents 4 and 5. https://hcservices.ecourts.gov.in/hcservices/

25. At this juncture, learned counsel for the petitionerwould submit that liberty may be given to the petitioner to approachthe Civil Court and until then there may be a direction torespondents 4 and 5 not to remove the children out of thejurisdiction of this Court. According to him, there is likelyhood ofthe children being taken abroad. The learned counsel for respondents4 and 5 would submit that respondents 4 and 5 shall not remove thechildren from and out of the jurisdiction of this Court. The saidsubmissions of the learned counsel on either side are recorded.26. In view of the foregoing discussions, the Writ petitionis allowed; the impugned order of the second respondent is set asideand the children are restored to the custody of respondents 4 and 5until the disputed question regarding the right to have custody ofthe children is settled by the Civil Court, whom the parties willapproach to work out their remedies, if so advised.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.PALTo1. The Secretary to Government of Tamil Nadu, Social Welfare Department (Social Defence) Fort St. George, Chennai 92. The Chairman, Children Welfare Committee, Department of Child Welfare Defence, Government of Tamil Nadu, 300,P.H.Road, Kellys, Chennai.10+ 1 CC To Mr.T.T.Ravichandran, Advocate SR NO.17955+ 1 CC to the Government Pleader SR NO.18054+ 1 CC To Mr.J.I.Rajkumar Roberts, Advocate SR NO.17391 W.P.No. 4436 of 2009MS {CO}TP/6.5.2009.