Juvenile Justice Act - Ascertain Identity Of Parents Surrendering Child; Inquire Reasons : Karnataka High Court Issues Guidelines For CWCs

A division bench of Chief Justice Abhay Oka and Justice N S Sanjay Gowda said

"We may note here that the state government has not exercised rule-making power under section 110. However, Juvenile Justice model rules have been framed by the Central government. In the absence of state rules in view of the proviso to sub section 1 of section 110, CWC is under obligation to follow model rules."

Section 35 of the JJ Act reads thus.

Surrender of children.

(1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee.

(2) If, after a prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall be executed by the parent or guardian, as the case may be, before the Committee.

(3) The parents or guardian who surrendered the child, shall be given two months time to reconsider their decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is below six years of age, or a children's home if he is above six years.

The bench said as follows:

"It is a well settled proposition of law that a writ of mandamus cannot be issued against the legislature to legislate in a particular manner. Well recognized exception to the said rule is that if it is found that a particular statute or provision becomes unworkable in absence of exercise of rule making power, a writ court can issue a writ of mandamus enjoining the authority to make rules. By using this small and well recognized exception, we propose to direct the state to exercise rule making power."

Court Issued The Following Guidelines:

The court referring to sub-section 2 of section 35, which prescribes the process of counselling and inquiry said that "We hope and trust that rulemaking authority will ensure that a provision is made in the rules enabling Child Welfare Committee (CWC) to take assistance of expert child psychologist, which will be part of the counselling process."

It added, "On conjoined reading of sub-sections 1 and 2 of section 35. The first inquiry has to be about the identity of the parent or parents of the child. Some inquiry is also necessary to ascertain whether a parent/parents who apply for surrender are biological parents of the child. The second inquiry is whether physical or emotional or social factors pleaded by parents/guardians are beyond their control which compels them to surrender their child."

"What can be the physical, emotional and social factors cannot be laid down as a straight jacket formula, the factors may differ from case to case. The action of the parents to surrender their child is very serious and it offends the rights of the child. Therefore in-depth inquiry is required to be made by CWC. Needless to add that CWC will have to interact with parents individually as well as collectively. On proving the existence of factors contemplated by sub-section 1 of section 35, if CWC is of the opinion that examination of some other person is necessary, it is free to do so."

Satisfaction of CWC cannot be based only on what is found in the inquiry. The parent and parents are required to be subjected to counselling. In a given case, CWC can take assistance from child psychologists or any counsellor having the expertise to deal with children, who are working with government health institutions or government medical colleges.

Referring to sub-section 3 of section 35, which states that after a deed of surrender is executed under the model rules, parents must reconsider the said decision within two months, the court said "After the expiry of a period of two months it is the duty of CWC to inquire with parents/guardians about whether they have reconsidered the decision of surrendering the child."

It added, "It is only after making a due inquiry by CWC on this aspect that it has power to place a child in a specialised agency for adoption in case of children below 6 years of age and above 6 years of age in children's homes."

The court also observed that, "Members of CWC are very well aware about some adoption agencies indulging in large scale illegalities, therefore CWC will have to bear in mind whether the application is genuine or whether it is intended to benefit certain specialised adoption agencies."

It opined, "We hope and trust that members of CWC will act with sensitivity, keeping in mind that an order made under subsection 2 of section 35 will have the effect of depriving the child of the company of his natural parents."

While passing an order under sub section 3 of section 35 of placing a child in a specialized adoption agency, it is necessary for CWC to verify the certificate of registration of specialized adoption agencies and in a given case verify credentials of the agency to avoid involvement of the agency in dealing with illegality in adoption.

The court has directed the state government to provide copies of the order to all CWCs in the state. If communication is issued by the state to all CWC, it shall be placed on record of the court within a period of one month.

Case Background:

The petitioner Letzkit Foundation had invited the attention of the court to an article that appeared in a newspaper. It was reported that a young couple who was in a live-in relationship had handed over a 12-days old baby to the child welfare committee. The report records that CWC and local police were alerted by the neighbour who could notice that the couple was attempting to abandon the child. The petitioner was not aware of the CWC order. Therefore a prayer was made in the petition directing the second respondent (DCWC) to ensure that the child abandoned by biological parents is restored to them.

Notice was issued and later it was realized that CWC Mysore had entertained the application made by parents of the child under subsection 1 of sec 35 and had passed an order dated May 19 allowing surrender of their child, in the exercise of powers under sub section 1 and 2 of JJ act.

Case Title: Letzkit Foundation & The State of Karnataka

Case No: WP 10092/ 2021