Poojitha J vs State Of Karnataka Represented By Home Secretary Vidhana Soudha Bengaluru-560001 & Ors.

Anu Sivaraman, J

This Writ Petition (Habeas Corpus) is filed seeking directions to produce the minor child of the petitioner - Kumari Manali. R. from illegal custody of respondent No.5 and restore the custody of the child to the petitioner.

The petitioner contends that the child, who is aged about 7 years, is born to her and her live-in partner Shri. Rooparam. It is contended that the fourth respondent has abruptly taken custody of the child on an alleged complaint that the child was illegally adopted and has entrusted custody to the fifth respondent. It is submitted that the child was being looked after by the petitioner, who is the biological mother without any room for complaint and that the petitioner is being harassed continuously by the fourth respondent on the pretext that the child is illegally adopted.

The learned SPP had accepted notice on behalf of respondents No.1 and 2. Notice had been ordered to respondents No.4 and 5. When the matter was taken up today, the fourth respondent as well as the Protection officer of the Child Welfare Committee, Mysuru (for short 'CWC') were present before us. They had also made available the records relating to taking the custody of the child. It is contended that there were complaints received from the wife of the petitioner's paramour that the child was illegally adopted and that the petitioner had on an earlier occasion given a statement before CWC admitting that the child was given to her by the biological mother in return for money. It is submitted that it was in those circumstances that the custody of the child was taken from the petitioner. It is submitted that the child is entrusted to the care of the fifth respondent - Institution at present.

We have interacted with the petitioner who was present before us as well as respondent No.4 and the Child Protection Officer of CWC and Mr. Rooparam, who claims to be the biological father of the child. We notice that there is no allegation that the child is in need of care and protection as defined under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'JJ Act, 2015'), there is no contention that the petitioner is harming the child in any manner. The Protection officer attached to the CWC would contend that it was on allegation that the child was illegally adopted or purchased from the biological mother by the petitioner, that action had been taken against the petitioner and the child was forcibly taken custody of and detained in the fifth respondent - Institution.

Having considered the contentions advanced, we are of the opinion that in the absence of any allegation that the child is being trafficked or otherwise harmed in any manner by the petitioner, who claims to be the biological mother of the child, the action taken by the fourth respondent to take forcible custody of the child from the petitioner was completely without jurisdiction. Even if there is an allegation that the petitioner is not the biological mother and that the child is illegally adopted, the course was open to the fourth respondent to register an FIR as against the petitioner and to take appropriate action to see that the penalty is imposed after a fair trial in the matter. Further, in the absence of necessary contentions, the action of the fourth respondent in having taken forcible custody of the child from the petitioner is completely unsupported by the provisions of the 2015 Act.

Section 2(14) of the JJ Act, 2015 defines a child in need of care and protection. We notice that there is no contention raised that the child falls in any of the categories under the said Sub-Section. The powers and functions of the CWC are provided in Sections 29 and 30 of the JJ Act, 2015. Section 31 provides for production of a child in need of care and protection before the Committee by the persons provided therein. Section 36 provides for the inquiry to be conducted by the CWC. It is only after such inquiry that the child is to be placed in the specialised adoption agency. In the instant case, we find that there is no contention that the child is in need of care and protection as provided under the JJ Act, 2015. On the complaint raised by one Smt. Geetha wife of Shri. Rooparam, it appears that an FIR has been lodged against the petitioner. If that be so, appropriate action is liable to be taken against the petitioner in accordance with law, in case, she is found guilty as charged. However, in the facts of the instant case, we find that there is no order passed or finding entered as against the petitioner at present. No material is also available in the files of CWC, which would justify the forceful act of the fourth respondent or the lodging of the child with the fifth respondent. The child has been admittedly in the custody of the petitioner for the past seven years of its life. Even if there are allegations or criminal cases registered against the petitioner, in the absence of any contentions that the best interest of the child would be served by taking it forcibly away from the petitioner, such action, is clearly illegal and against the basic requirements of law.

Moreover, from the records, we notice that there were earlier instances, where complaints have been raised with regard to the identity of the child and the illegal adoption as alleged. However, the complaint had once been closed and thereafter reopened. We fail to see under what provisions of law, the said action have been taken by the fourth respondent and its officials. It is pertinent to note that the petitioner has raised allegations of harassment and corruption as against the functionaries of the fourth respondent.

In the above factual situation, we are of the opinion that the custody of the child is to be restored to the petitioner. The fourth respondent shall take immediate steps to see that the custody of the child is restored from the fifth respondent - Institution to the petitioner, forthwith, at any rate, within two days, from today. The petitioner as well as Mr. Rooparam, who states that he is the biological father of the child shall place affidavit on record before this Court that the child will be properly looked after and shall be taken proper care and that they take full responsibility for the care and wellbeing of the child. The affidavit shall also give the full details of their identity and address and they shall also undertake that the child shall be produced before any Court or other authority as required, in accordance with law.

In case the writ petitioner has any complaints with regard to the handling of the child, she is free to make a complaint as against the concerned persons before the appropriate authorities and in case such complaint is made, the same shall be considered in accordance with law.

It is made clear that the directions in this Writ Petition are being issued only in the best interest of the child and in view of the fact that there is no complaint that the child is at any risk at the hands of the petitioner or her paramour. These observations shall not influence any proper investigation into the FIR registered against the petitioner or into any investigation into her actions, which can be taken and concluded in accordance with law.

Accordingly, Writ Petition (Habeas Corpus) stands disposed of.

Pending IAs, if any, shall also stand disposed of.