What Kerala High Court held on custody restoration of children to Non-Biological Parents under Juvenile Justice Act

The Kerala High Court recently clarified that even non-biological, non-adoptive parents are entitled to restoration of custody of children under the Juvenile Justice Act (Care and Protection of Children) Act, 2015 (JJ Act) if the same is in the best interests of the child..A Bench of Justices K Harilal and Annie John of Kerala High Court cited Section 40 of the JJ Act to pass a ruling to this effect last month. Section 40 empowers the Child Welfare Committee to restore the custody of children found initially to be “in need of care and protection” to the child’s parents, guardian or fit person, who is suited to take care of the child..The Court clarified that the category of such “fit persons” would also include non-biological and non-adoptive parents. The case prompting the observation involved a 5-year-old child who had been separated from her non-biological caregivers and sent to a juvenile home by the Child Welfare Committee..The child had been abandoned soon after birth at a hospital. She was found by a childless couple who decided to take her in as their child. The child’s birth certificate also mentioned this couple as her parents. However, the couple did not complete the formal process of adoption..While this was the case, it came to light that the child was sexually molested by the 15-year-old son of a neighbouring tenant. The incident came to light after the child complained about the same to her teacher. The teacher informed the concerned authorities, leading to the child eventually being sent to a juvenile home..The Child Welfare Committee invoked Section 2(14)(v) of the JJ Act to send the child to the juvenile home. This provision is invoked in cases where a child’s parent or guardian is found to be unfit or incapacitated to care for and protect the safety and well-being of the child..The Child Welfare Committee thereafter denied her non-biological parents custody of the child despite repeated requests. Eventually, the Committee also passed an order to this effect. Among the reasons stated for this order was that the non-biological parents would not fall under any of the categories of caregivers mentioned in Section 40 of the JJ Act..Challenging the order, a revision petition was eventually moved in the Kerala High Court by the non-biological mother of the child for custody. Inter alia, she argued that the sexual assault incident had occurred beyond her control. She also informed the Kerala High Court that the adoption process had been initiated. The petitioner also argued that it would be in the best interest of the child that her custody be restored to the revision petitioner..On its part, the Court also took note that the child had indicated that she wished to go with the petitioner on one occasion when the two were allowed to interact by the Child Welfare Committee. The Court also came to know that the Committee had not conducted any inquiry to ascertain the wishes of the child before passing its order. The Court faulted the Child Welfare Committee on this aspect, pointing out that this would violate Sections 3, 36 and 37 of the JJ Act..“From the records, it is quite clear that respondents have violated the mandates as prescribed under Section 3 of the JJ Act. Considering the above, we are of the opinion that the respondents have completely ignored the dictum laid down under Section 3 of the Act..Virtually the inquiry contemplated under Section 36 of the Act was not conducted in the presence of the father and mother of the child. …on going through the impugned order, it would reveal that practically, no inquiry was conducted as contemplated under the Juvenile Justice Act and Rules..The Court emphasised,.“Before invoking Section 2(14)(v) of the JJ Act the authority has to look into the general principles under Section 3 of the JJ Act. Section 3 of the JJ Act would state certain general principles which is to be followed in the administration of the Act…”.Section 3 lays down fundamental principles to be borne in mind in making decisions concerning children in need of care and protection. This would also entail taking into consideration the wishes of the child (principle of participation). This mandate is also implicit in Section 37 of the JJ Act. However, in the case before the Court, the Child Welfare Committee had neglected to account for any of these considerations..“…Nowhere it is stated that they have given option of the child regarding the residence of choice was obtained and considered. It is very important to note that when the child needs the care and protection before putting the child in Children Home, there should be application of mind by the committee and the committee shall take into account the investigation report of the Child Welfare Committee as well as the child wishes. On a reading of Section 37 of the Act read with Section 3 of the Act, it is crystal clear that the Child Welfare Committee has to consider the wishes of the child also. The child is about 5 years old and her wishes should have been given due consideration ….… The impugned order does not show that the opinion and wishes of the victim child was considered by the Committee in this case. At present, her opinion/desire is to go with the petitioner and we have considered the matter in detail on the basis of the fundamental principles as envisaged in Section 3 of the Act. “.The Court also noted that the revision petitioner could not be blamed for the sexual assault suffered by the child in this case. In view of the same, the Bench noted that the child cannot be said to be “in need of care and protection” to separate her from her non-biological caregivers..“It cannot be said by any stretch of imagination that the revision petitioner has injured, exploited, abused or neglected the child in order to define the child as a person in “need of care and protection”.”.In the backdrop, Kerala High Court proceeded to conclude that the custody of the child can be restored to the revision petitioner, as she would fall within the ambit of a “fit person” under Section 40 of the JJ Act..“It is true that she is not an adopted parent; but she can have the custody of the child by including her in the category of a ‘fit person’. Therefore, we are convinced by the argument of the learned counsel for the petitioner that she can have custody of the victim child as she comes under the category of fit person. Therefore, we are inclined to grant custody of the child to the revision petitioner.“.The Court, therefore, quashed the order passed by the Child Welfare Committee and ordered that the child be released to the custody of her non-biological mother..Read the Judgment: