Notified Draft Rules For Inquiry & Counselling In Cases Of Surrender Of Children By Parents: State Tells Karnataka High Court

A division bench of Chief Justice Ritu Raj Awasthi and Justice S R Krishna Kumar were informed that the state government has issued the draft notification dated April 9, notifying the Karnataka State Juvenile Justice (Care and Protection of Children) Rules, 2022. It has given a period of 15 days calling for suggestions/objections on the same and after the period is over the final rules will be published.

The bench accordingly said, "In view of the above we are of the considered view the cause for which the writ petition was filed has been redressed. The state govt shall publish the final publication of the rules –Karnataka State Juvenile Justice (Care and protection of children) Rules, 2022 without any delay." Accordingly it disposed of the petition.

By its order dated August 19, 2021, the court had directed the state government to exercise rule making powers under Section 110(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 for providing the procedure.

The court had then observed, "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."

Further it had said, "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."

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 rule making 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 further added that, "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."

Case Background:

The petitioner Letzkit Foundation represented by Senior Advocate Puthige R Ramesh 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 noticed 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 realised that CWC Mysore had entertained the application made by parents of the child under subsection 1 of section 35 and had passed an order dated May 19, 2021 allowing surrender of their child, in the exercise of powers under sub section 1 and 2 of JJ act.

The court was informed that the abandoned child whose case was before the court has been adopted pursuant to the order of the civil court dated 15-11-2021.

Case Title: Letzkit Foundation v. The State of Karnataka

Case No: WP 10092/ 2021

Citation: 2022 LiveLaw (Kar) 118