HEADNOTES;
PARA 4. I am at a loss to understand as to how the activity of
the children in helping their parents in selling pens and
other small articles would amount to child labour. No
doubt, the children ought to be educated, rather than
being allowed to loiter on the streets along with their
parents. On interaction with the petitioners, they
undertook not to let the children on to the streets for
selling articles and to take measures for educating them.
I wonder as to how the children can be provided proper
education while their parents are leading a nomadic life.
Even then, the police or the CWC cannot take the children into custody and keep them away from their
parents. To be poor being not a crime and to quote the
father of our nation, poverty is the worst form of violence.
PARA 5. Even as per the general principles to the followed
in administration of the Juvenile Justice Act, the best
interest principle require all decisions regarding children
to be based on the primary consideration that they are in
the best interest of the child and to help the child to
develop to full potential. As per the principle of family
responsibility, the primary responsibility of care, nurture
and protection of the child is that of the biological family.
Therefore, the holistic development of Vikas and Vishnu
cannot be attained by separating them from their
biological family. On the contrary, the attempt of the
State should be to provide the children with proper
education, opportunity and facilities to develop in a
healthy manner and in conditions of freedom and dignity.
FULL ORDER;
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
Friday, the 6th day of January 2023 / 16th Pousha, 1944
WP(C) NO. 41572 OF 2022 (V)
PETITIONERS:
1. PAPPU BAWARIYA AGED 39 YEARS,
S/O RAM CHANDER BAWARIYA,
UID NO 7602
3973 9446,
R/O A-2/1834 PH-3 , JJ COLONY, MADANPUR, KHADAR SARITA
VIHAR, NEW DELHI PIN - 110076
2. MAYA AGED 30 YEARS
W/O MUKESH BAWARIYA, MAHU KHURA (RURAL),
MADHOPUR RAJASTHAN PIN - 322202
RESPONDENTS:
1. DISTRICT COLLECTOR CIVIL STATION, KAKKANAD (P.O) ERNAKULAM(DT), PIN
- 682030
2. CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, HEAD POST
OFFICE(P.O)ERNAKULAM (DT), PIN - 682011
3. CHAIRPERSON CHILD WELFARE COMMITTEE, C/O COCHIN CORPORATION, HEAD
POST OFFICE (P.O)ERNAKULAM (DT),COCHIN, PIN - 682011
4. SHO, CENTRAL POLICE STATION, BANERGY ROAD (P.O) ERNAKULAM(DT), PIN -
682018
5. DIRECTOR SNEHABHAVAN, C/O COCHIN CORPORATION, PALLURUTHY(P.O)
COCHIN, PIN - 682006
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the respondents to release the minor children, "VIKASH
AND VISHNU" aged 7 and 6 years respectively, and handover the children to
the petitioners for the utmost welfare of the children.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
30/12/2022 and upon hearing the arguments of SRI. MRINUAAL Advocate for
the petitioners, GOVERNMENT PLEADER for R1, R2 & R4 (By Order) and of
SRI.HARISHANKAR Advocate for R5 (By Order) and of the STANDING COUNSEL,
the court passed the following:
V.G.ARUN, J.
--------------------------------------------------
W.P.(C) No. 41572 of 2022
----------------------------------------
Dated this the 6th day of January , 2023
ORDER
The petitioners are natives of Rajasthan and had
migrated to Delhi in search of livelihood. Compelled by
impecunious circumstances and inclement weather,
petitioners come down to Kerala for a few months every
year and eke a living by selling pens, chains, bangles,
rings etc. The 2nd petitioner is the wife of the 1st
petitioner's brother. The 1st petitioner has a son by name
Vikas Bavaria, aged 7 years and the 2nd petitioner, a son
named Vishnu Bavaria, aged 6 years. The children
accompany the elders for selling their wares on the
streets. On 29.11.2022 the children were nabbed by the
4th respondent alleging that they were being forced to do
child labour by selling articles on the streets. The children were thereafter produced before the Child Welfare
Committee/3rd respondent and sent to the 5th
respondent's shelter at Palluruthy. The innocent children
have been languishing in the shelter from that day
onwards, away from the care and safety of their parents
and the company of their siblings. This writ petition is
filed seeking a direction to the respondents to release
Vikas Bavaria and Vishnu Bavaria to the custody of the
petitioners.
2. When the writ petition came up on 20.12.2022,
learned Counsel for the petitioner submitted that the
petitioners are apprehensive that the children would be
send by the 3rd respondent to a Government Home in
Delhi. Hence an interim order was passed, directing not
to transfer the children to any place outside Kerala.
When the matter was taken up again on 23.12.2022 it
was submitted that the parents are not being allowed to
interact with the children. Thereupon, this court passed
an order directing the respondents to permit the petitioners to interact with the children for one hour every
day. On 30.12.2022 the 3rd respondent was called up to
file a statement explaining as to why custody of the
children cannot be given to the petitioners. Accordingly, a
statement has been filed today. As per the statement,
while conducting a search operation on 29.11.2022, the
police saw Vikas and Vishnu involved in selling pens and
other articles in the Marine Drive area. As such activity
amounted to child labour, the children were taken before
the Child Welfare Committee. On finding that Vikas and
Vishnu would come under the category of children in
need of care and protection as stipulated in Section 2(14)
(i)(ii) of the Juvenile Justice (Care and Protection of
Children) Act 2015, the Committee ordered the children to
be placed under the care and protection of the 5th
respondent. Thereafter an inquiry was conducted, which
revealed that the petitioners and the children are
permanent residents of South Delhi and are presently
residing in a single room dwelling in City Lodge in Iyyattu Junction in Ernakulam. It is also stated that, being of
opinion that, for their benefit and holistic development,
the children should live and grow in their own culture, the
Committee passed an order on 23.12.2022 under Section
95 of the Act, to send the children to CWC, District South
East, New Delhi for rehabilitation.
3. Heard learned Counsel for the petitioners and the
learned Government Pleader.
4. I am at a loss to understand as to how the activity of
the children in helping their parents in selling pens and
other small articles would amount to child labour. No
doubt, the children ought to be educated, rather than
being allowed to loiter on the streets along with their
parents. On interaction with the petitioners, they
undertook not to let the children on to the streets for
selling articles and to take measures for educating them.
I wonder as to how the children can be provided proper
education while their parents are leading a nomadic life.
Even then, the police or the CWC cannot take the children into custody and keep them away from their
parents. To be poor being not a crime and to quote the
father of our nation, poverty is the worst form of violence.
5. Even as per the general principles to the followed
in administration of the Juvenile Justice Act, the best
interest principle require all decisions regarding children
to be based on the primary consideration that they are in
the best interest of the child and to help the child to
develop to full potential. As per the principle of family
responsibility, the primary responsibility of care, nurture
and protection of the child is that of the biological family.
Therefore, the holistic development of Vikas and Vishnu
cannot be attained by separating them from their
biological family. On the contrary, the attempt of the
State should be to provide the children with proper
education, opportunity and facilities to develop in a
healthy manner and in conditions of freedom and dignity. For the aforementioned reasons respondents 3 to 5
are directed to forthwith release the children to the
custody of the petitioners and the operation of Ext. R3(b)
order is stayed.
Post on 10.01.2023.