Ker HC | JJ Act: Welfare Committee must follow the fundamental principles enshrined in Section 3 while deciding custody applications

Kerala High Court: The Division Bench of K.Harilal and Annie John. JJ. allowed a revision petition filed by mother of a 15-year old girl, who was subjected to sexual assault by a family friend named Imam Mr Shafeek Al-Kasmi.

The instant petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 challenging the order of respondent whereby it was declared that petitioner’s minor daughter required care and protection and that the child’s counselling shall be carried out by admitting her in an institution. 

Mr Ram Mohan G., counsel on behalf of the petitioner, submitted that the continued detention of a child under the orders of respondent was prejudicial to her interests and well being as she required the moral support, guidance and presence of her mother.

Mr Suman Chakravarthy, Senior Government Pleader appearing on behalf of respondent, submitted that even though the sexual assault took place in February 2019, petitioner and her relatives did not report the matter to police due to which the child could not be medically examined. Further, as per the report of District Child Protection Officer, it was not congenial to restore the child to the petitioner, since the accused was a well-known religious leader and a frequent visitor of their family, who had not been arrested so far. Therefore, the child was not safe with the petitioner.

The learned Judges interacted with the child in Chambers in the absence of her mother and relatives. The child expressed her willingness to go along with her mother or maternal grandmother but was not ready to live in the institution. 

The Court opined that inquiry, as contemplated under Section 36 of the Act, was not conducted by the respondent in the presence of petitioner or other family members of the victim. Respondent did not try to ascertain the wishes of the child. Thus, the mandate of Section 3 of the Act was violated. It was held that when the child needs care and protection, then before putting the child in Children’s Home, there should be the application of mind by the committee and it must also take into account the child’s wishes along with the investigation report of Child Welfare Committee.

In view of the above, the impugned order was set aside and Superintendent of Child Shelter Home was directed to release the child forthwith to the petitioner-mother.[Sheeja Navas v. Child Welfare Committee, 2019 SCC OnLine Ker 1156, Order dated 08-03-2019]

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