Kerala High Court
Xxxxxx vs State Of Kerala on 21 December, 2023
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
WP(C) NO. 40359 OF 2023
PETITIONERS:
1 XXXXXXXXXX
XXXXXXXXXX
2 XXXXXXXXXX
XXXXXXXXXX
3 XXXXXXXXXX
XXXXXXXXXX
BY ADVS. ARUN CHAND
VINAYAK G MENON
BHARAT VIJAY P.
NEETHU S.
THAREEQ ANVER K.
K.SALMA JENNATH
MINU VITTORRIA PAULSON
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY,
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 CHILD WELFARE COMMITTEE,
THIRUVANANTHAPURAM, GOVERNMENT CHILDREN'S HOME,
POOJAPURA, POOJAPURA P.O., THIRUVANANTHAPURAM,
REPRESENTED BY ITS CHAIRPERSON., PIN - 695012.
3 THE CHAIRPERSON, CHILD WELFARE COMMITTEE,
THIRUVANANTHAPURAM, GOVERNMENT CHILDREN'S HOME,
POOJAPURA, POOJAPURA P.O.,
THIRUVANANTHAPURAM, PIN - 695012.
*ADDL.R4 SAIFUDEEN,
S/O. ABDUL RAHIMAN, AGED 42 YEARS,
'KODIYIL', BEACH NORTH, PALLITHOTTAM,
KOLLAM DISTRICT, PIN - 691 006.
[ADDL.R4 IS IMPLEADED AS PER ORDER DATED 15/12/2023 IN
I.A-1/2023 IN WP(C) 40359/2023]
WP(C) NO. 40359 OF 2023
-2-
*ADDL.R4 SHAHABUDEEN, S/O ASSANARU PILLAI,
AGED 67 YEARS, RESIDING AT ASHIANA,
TC 27/504(1), KUNNUKUZHY, VANCHIYOOR.P.O,
THIRUVANANTHAPURAM-695 035
[ADDL.R5 IS IMPLEADED AS PER ORDER DATED
15/12/2023 IN I.A-2/2023 IN WP(C) 40359/2023]
BY ADVS.
G.SUDHEER
THOUFEEK AHAMED
R.HARIKRISHNAN (H-308)
SMRITHI S.S.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 40359 OF 2023
-3-
JUDGMENT
The 1st petitioner - who is the mother of
petitioners 2 and 3 - seeks that Ext.P8 summons
issued to them by the 2nd respondent - Child
Welfare Committee (CWC), be quashed.
2. Sri.Arun Chandran - learned counsel for
the petitioners, pointed out that the 1st
petitioner and her now divorced husband, had
severe matrimonial disputes, leading to the
divorce between them; and that, taking advantage
of the situation, he seems to have approached
the 'CWC' with a complaint, which interestingly
is supported by the 1st petitioner's father also,
namely respondent No.5.
3. Sri.Arun Chandran argued that his
client's father is supporting the 4th respondent
because he has been completely swayed by his
misrepresentations; but that, in any event,
'CWC' does not obtain any competence to
WP(C) NO. 40359 OF 2023
intervene and direct the petitioners to be
present before them, because the 2nd and 3rd among
them are not children in "need of care or
protection", under the ambit of Juvenile Justice
(Care and Protection of Children) Act, 2015
('Act', for short). He, therefore, prayed that
Ext.P8 summons be quashed.
4. Sri.Ahad T. - learned counsel appearing
for respondent No.4, submitted that his client
had approached the 'CWC', because he believes
that his children are not being taken care of
well by their mother. He argued that the
mother's temperament is dangerous for the well-
being of his children; and hence, that he has
also, in addition, approached the competent
Family Court for their custody. He thus prayed
that this writ petition be dismissed.
5. Noticing the afore rival positions and
since this Court wanted to know the view of the
WP(C) NO. 40359 OF 2023
children involved, namely petitioners 2 and 3, I
indited an order on 15.12.2023, as under:
"The Secretary, DLSA will either on
his/her own or through a competent person
interact with the petitioners,
particularly 2 and 3 herein and file a
report as to their version. This will be
done urgently so that the report will be
available to this Court by the next
posting date."
6. The Report from the learned Sub Judge
and Secretary of the Thiruvananthapuram District
Legal Services Authority (TDLSA), forwarded to
the Registrar (Judicial) of this Court, is now
available on record. The learned Sub Judge says
that he interacted with the children; and that
they exhibit maturity consistent with their
respective ages; but interestingly, adds that
"extracting information from them proved to be a
challenging task lasting hours." He has offered
his opinion that, though the children had
nothing against their mother, they seem to be
WP(C) NO. 40359 OF 2023
harbouring some ill-will towards their father,
particularly the elder one; but that this would
be because of being influenced by their current
guardian - their own mother, namely the 1 st
petitioner.
7. Be that as it may, the acme question
before this Court is whether petitioners 2 and 3
are children, who require care and attention
under the 'Act'.
8. Pertinently, Smt.Vidya Kuriakose -
learned Government Pleader, unreservedly
affirmed that no proceedings to declare
petitioners 2 and 3 as afore as ever have been
taken and completed. She conceded that the
proceedings before the 'CWC' began with a
complaint preferred by the former husband of the
1st petitioner; but added that Ext.P8 summons
would not cause any prejudice to her because, it
is only the beginning of an enquiry, which will
WP(C) NO. 40359 OF 2023
be closed, if it is found to be unnecessary.
9. Even when I hear the learned Government
Pleader as afore, the fact remains that the
'CWC' could have intervened, only if the
criteria under the Statutory Scheme had been
projected and prima facie established. I,
therefore, pointedly asked Smt.Vidya Kuriakose
about this, and she admitted that, as at
present, since petitioners 2 and 3 do not have
any complaints against the 1st petitioner - their
mother, the role of the 'CWC' is not sure. She
then added that the said Authority will only act
as per further orders from this Court.
10. I have evaluated and considered the
afore rival submissions, particularly the Report
from the Sub Judge and Secretary of 'TDLSA'.
11. It is without doubt that the children
have no complaint against their mother - 1 st
petitioner; and that they appear to be well
WP(C) NO. 40359 OF 2023
taken care of and protected. In any event, the
1st petitioner is the natural guardian of
petitioners 2 and 3.
In the afore circumstances, I see no reason
why 'CWC' should have intervened and issued
Ext.P8 summons to the petitioners. However, this
does not mean that the 4th respondent - former
husband of the 1st petitioner, is incapacitated
from proceedings against the said petitioner
legally, under remedies that may be available to
him in law, but only that a proceeding as
initiated through Ext.P8 summons is not tenable.
Resultantly, I order this writ petition and
set aside Ext.P8; however, leaving open every
other liberty to the party respondents and to
the 1st petitioner; for which purpose, all rival
contentions are left open.
Sd/-
DEVAN RAMACHANDRAN
akv JUDGE
WP(C) NO. 40359 OF 2023
APPENDIX OF WP(C) 40359/2023
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED
2/12/2021 IN CMP 759/2021 IN M.C
17/2021 PASSED BY THE JUDICIAL FIRST
CLASS MAGISTRATE COURT - III,
THIRUVANANTHAPURAM
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED
2/8/2022 IN CMP 2081/2022 IN M.C
13/2022 PASSED BY THE JUDICIAL FIRST
CLASS MAGISTRATE COURT - III,
THIRUVANANTHAPURAM
EXHIBIT P3 THE TRUE COPY OF THE ORDER DATED
2/9/2022 IN CRL. M.P. NO. 2195/2022 IN
CRL. APPEAL 131/2022 PASSED BY THE
SESSIONS COURT, THIRUVANANTHAPURAM
EXHIBIT P4 THE TRUE COPY OF THE OP 1372/2022
FILED BY THE EX-HUSBAND OF THE 1ST
PETITIONER BEFORE THE FAMILY COURT,
THIRUVANANTHAPURAM
EXHIBIT P5 THE TRUE COPY OF I.A. 2/2023 IN
OP(G&W) 1372/2022 FILED BY THE 1ST
PETITIONER'S EX-HUSBAND BEFORE THE
FAMILY COURT THIRUVANANTHAPURAM
EXHIBIT P6 THE TRUE COPY OF C.M.P. FILED BY THE
EX-HUSBAND OF THE 1ST PETITIONER IN
M.C. NO. 17/2021 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT - III
THIRUVANANTHAPURAM
EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION
DATED 24/11/2023 SUBMITTED BY THE 1ST
PETITIONER BEFORE THE 3RD RESPONDENT
WHICH WAS ACKNOWLEDGED ON 27/11/2023
WP(C) NO. 40359 OF 2023
EXHIBIT P8 THE TRUE COPY OF THE SUMMONS DATED
27/11/2023 ISSUED BY THE 2ND
RESPONDENT TO THE 1ST PETITIONER
RESPONDENT ANNEXURES
ANNEXURE A TRUE COPY OF THE PETITION FILED BEFORE
THE KERALA STATE COUNCIL FOR CHILD
WELFARE
ANNEXURE B TRUE COPY OF THE OP(G&W) 2297/2023
PENDING BEFORE THE FAMILY COURT,
THIRUVANANTHAPURAM
