Kerala High Court
Anoopkumar G vs State Of Kerala on 23 March, 2023
W.P.(C). No.8173 of 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
WP(C) NO. 8173 OF 2023
PETITIONERS:
1 ANOOPKUMAR G
AGED 47 YEARS
S/O GOPALAKRISHNAN, ANUPRIYA HOUSE, CHAKKALAMUTH ROAD,
NORTH FORT GATE, THRIPUNITHURA, ERNAKULAM DISTRICT .,
PIN - 682301
2 SUNITHA A.S
AGED 43 YEARS
W/O ANOOPKUMAR G, ANUPRIYA HOUSE, CHAKKALAMUTH ROAD,
NORTH FORT GATE, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN
- 682301
BY ADVS.
VIJAY SANKAR V.H.
AMRUTHA P S
BINDU MOHAN
SRUTHY UNNIKRISHNAN
SAQIB RIZWAN
JERIN JOSEPH
ARYA B. VENUGOPAL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, DEPARTMENT OF WOMEN AND CHILD
DEVELOPFFLEFIT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURARN, PIN - 695001
2 CHILD WELFARE COMMITTEE
ERNAKULAM REP BY. ITS CHAIRMAN, BORSTAL SCHOOL,
ECHAMUKU, KUNNUMPURAM, PADAMUGHAL, KAKKANAD, KERALA,
PIN - 682037.
W.P.(C). No.8173 of 2023 2
SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C). No.8173 of 2023 3
JUDGMENT
Dated this the 23rd day of March, 2023
This writ petition is filed by the petitioners seeking the following reliefs:
(i) Issue a writ of mandamus or any other appropriate writ, order or
direction, commanding the 2nd respondent to hand over the custody of
the child to the petitioners.
(ii) Issue a writ of mandamus or any other appropriate writ, order or
direction, to consider Exhibit P3 representation within a stipulated period
of time.
2. According to the petitioners, they were married 20 years back and no child
was born in the wedlock. It is also the case of the petitioners that they have
attempted various types of treatments but no fruitful results could be achieved.
It is the case of the petitioners that they are financially sound and are qualified
under the provisions of the Juvenile Justice (Care and Protection of Child) Act,
2015, to undertake the foster care of a child. The subject issue relates to
handing over of a child to the petitioners through one of their friends on
3.9.2022. The date of birth of the child, according to the petitioners, is on
27.8.2022. The issue with respect to the foster care of a child is dealt with under
the Act, 2015.
3. It is the admitted case of the petitioners that none of the procedures
contemplated as per the provisions of the Act, 2015 was undertaken by the
petitioners. The submission made in the writ petition is that the petitioners have
submitted Exhibit P3 representation before the Child Welfare Committee,
Kakkand, Ernakulam, to hand over the custody of the child to the petitioners.
Apparently, the Child welfare Committee took custody of the child and now the
child is under the care and protection of Valsalyam, Sisubhavan, Kalamassery.
Therefore, according to the petitioners, it would suffice, if a direction is issued to
consider Exhibit P3 representation submitted by the petitioners.
4. The learned Senior Government Pleader was directed to take instructions
in the matter; and accordingly produced a statement given by the Child Welfare
Committee, Ernakulam, wherein various aspects are dealt with leading to the
circumstances under which the child was taken into custody and entrusted to the
Valsalyam, Sisubhavan, Kalamassery for the welfare and protection of the child.
Learned Senior Government Pleader also submitted that the direction sought for
by the petitioners to consider Exhibit P3 representation, cannot be granted since
a clear cut procedure is prescribed as per the provisions of the Act, 2015 and the
rules thereto.
5. I have heard learned counsel for petitioners - Sri.Vijay Sankar V.H.,
learned Senior Government Pleader - Smt.Deepa Narayanan, learned Standing
Counsel for Child Welfare Committee - Smt.M.U.Vijayalakshmi and perused the
pleadings and material on record.
6. In the above view of the matter, I think it is only appropriate that the
petitioners are permitted to file a suitable application in terms of law before the
Child Welfare Committee, Ernakulam, and a direction is issued to consider the
said application, in accordance with law, within the time frame fixed by this
Court. Therefore, the petitioners are granted liberty to file a suitable application
before the Child Welfare Committee, Ernakulam - the 2 nd respondent, within two
weeks from the date of receipt of a copy of this judgement and if any such
application is filed, it shall be considered by the Child Welfare Committee, in
accordance with law, at the earliest, at any rate within a month thereafter.
Learned counsel for the petitioner submitted that petitioners are deeply
attached with the child and since the custody of the child is taken away, they are
finding it difficult and therefore, the petitioners may be permitted to visit the
child.
7. Considering the facts, circumstances, law and the instructions imparted by
the Child Welfare Committee I am of the view that the petitioners can be
permitted to see the child at Valsalyam, Sisubhavan, Kalamassery, on every
Saturday, between 4 p.m. and 5 p.m. The said arrangement will be operative till
such time a decision is taken by the Child Welfare Committee, as directed above.
The child Welfare Committee, Ernakulam is directed to issue necessary
instruction to the Sisubhavan accordingly.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 8173/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 13/02/2023 OF
THE HONORABLE SESSIONS COURT, ERNAKULAM IN
CRL.MC NO.366/2023 .
Exhibit P2 TRUE COPY OF THE ORDER DATED 13/02/2023 OF
THE HONORABLE SESSIONS COURT, ERNAKULAM IN
CRL.MC NO.383/2023
Exhibit P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT
DATED 22/02/2023
