Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care.

Instant habeas corpus petition was initially filed by the paternal grandparents seeking custody of the corpus a minor child stated to be of the age of 19 months at that point of time, who was said to be with her maternal grandfather.

It has been stated that despite various requests maternal grandfather was not handing over the custody of the corpus to the paternal grandparents and that the same amounted to illegal detention.

Factual Matrix 

Present habeas corpus petition principally seeks to raise claims with regard to guardianship and custody of the petitioner 1 (corpus) who is girl child stated to have been born on 04.06.2018 and presently aged about three years. It is not disputed that the mother of petitioner 1, upon being seriously ill was taken away by respondent 4 along with the minor child for medical treatment and she died on 31.07.2019 and since then the petitioner 1 is under the care and custody of the respondent 4, her maternal grand­father. The lodging of the FIR under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961, in which the petitioners 2, 3 and 4, are named as accused and the pendency of the criminal proceedings are reflected from the records.

Principal Issue

Whether from the facts of the case, it can be stated that the custody of the child is illegal?

Analysis, Law and Decision

Writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate, (1973) 2 SCC 674.

Jurisdiction

The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would,  be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

Object and Scope of Writ of Habeas Corpus

In the case of Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

In the decision of Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the question as to what would be dominating factors while examining the welfare of a child was considered and it was observed that while material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality and talents.

Further, elaborating more it was noted that question of a claim raised by maternal grand­father for guardianship of a minor child whose mother had died after giving birth to the child was subject matter of consideration in Shyamrao Maroti Karwate v. Deepak Kisanrao Tekham, (2010) 10 SCC 314, and reiterating that in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives, it was held that the appointment of the maternal grand­father as guardian, was justified.

Court stated that considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498­A IPC, it was observed in the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, that one of the matters which is required to be considered by a court of law is ‘character’ of the proposed guardian and that the same would be a relevant factor.

In an earlier decision in the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573,  where in almost similar circumstances the father was facing a charge under Section 498­A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of the children to hand over their custody to the father.

Therefore, in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

Power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

 High Court observed that,

A writ of habeas corpus, is employed in certain cases, to enable a party to enforce a ‘right to control’ – arising out of a domestic relationship, especially to enable a parent to get custody and control of a child, alleged to be detained by some other person.

 Guardianship v. Welfare of the Child

 Bench expressed that while examining the competing rights with regard to guardianship vis-à-vis welfare of the child, the predominant test for consideration would be – what would best serve the welfare and interest of the child.

The interest of the child would prevail over legal rights of the parties while deciding matters relating to custody.

In Court’s opinion, the custody of a minor child with her maternal grandfather was not in any manner illegal and improper detention.

Reasoning out the above opinion, Court stated that the child from her infancy, when she was of a tender age, appears to be living with her maternal grand­ father. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor.

“…in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.”

In view of the above petition was dismissed. [Reshu v. State of U.P., Habeas Corpus WP No. 9 of 2020, decided on 22-10-2021]


Advocates before the Court:

Counsel for Petitioner:­ Rajeev Sawhney, Rajiv Lochan Shukla, Ramanuj Yadav, Virendra Kumar Yadav

Counsel for Respondent:­ G.A., Abhinav Gaur, Ankur Verma, Manoj Kumar Rajvanshi, Prakash Chandra Yadav

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ, explaining the concept of a mirror order, has said,

“The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.”

Mirror orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child.In international family law, it is necessary that jurisdiction is exercised by only one court at a time. These orders are passed keeping in mind the principle of comity of courts and public policy.

The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.

The said explanation came in a 2:1 verdict, where Indu Malhotra, J, writing the majority judgment for herself and UU Lalit, J, transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

The decision was taken based on an overall consideration of the holistic growth of the child determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life. However, to safeguard the rights and interest of the mother, the Court directed the father to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.

Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.

[Smriti Madan Kansagra v. Perry Kansagra,  2020 SCC OnLine SC 887, decided on 28.10.2020]


Read the full report on why the custody of the child was transferred to his father and why Justice Gupta disagreed with the majority opinion here.

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ has, in a 2:1 verdict, has transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

The decision was taken based on an overall consideration of the holistic growth of the child determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.

However, to safeguard the rights and interest of the mother, the Court directed the father to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.

What is a mirror order?

Mirror orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child.In international family law, it is necessary that jurisdiction is exercised by only one court at a time. These orders are passed keeping in mind the principle of comity of courts and public policy.

“The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.”

The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.


Indu Malhotra, J (for herself and UU Lalit, J)


As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will.

Hence, in view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, the Court arrived at the conclusion that it would be in his best interest to transfer the custody to his father.

The Court found the child to be bright and articulate for his age, who was quite confident, and expressed with clarity about his inclinations and aspirations. The child was deeply attached to his mother and maternal grandmother, with whom he lives, and at the same time exhibited a strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grand-parents every month during the past 8 years. He expressed a strong interest for going to Kenya for his education, and for higher studies to the U.K. He expressed a keen interest to travel overseas, for which he had got no opportunity so far. The Court, hence, noticed,

“If his preferences are not given due regard to, it could have an adverse psychological impact on the child.”

The court also noticed that the child is the heir apparent of a vast family business established by the paternal family in Kenya and U.K. Since the businesses of the paternal family are primarily established in Kenya and the U.K., it would be necessary for the child to imbibe and assimilate the culture and traditions of the country where he would live as an adult, learn the local and adapt himself to the living conditions and surroundings of the country.

“Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.”

The Court, hence, held that the minor child has been in the exclusive custody of his mother from birth till adolescence, which is the most crucial formative period in a person’s life and having completed almost 11 years in her exclusive custody, he is now entitled to enjoy the protection and care of his father, for his holistic growth and development. However, mother’s continued participation in the growth and development of the child would be crucial.


Hemant Gupta, J (Dissenting)


Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.

He noticed that the question of where the welfare of the child lies narrows down to the mother who has stopped practicing law to nurture child as against the father who travels quite substantially every month.

“In the absence of the father, the child will be in the custody of nannies, maids and servants. The grandparents would not be able to take care of the growing needs of a young child. All things being equal, the presence of grandparents can tilt in balance but where a mother who is available 24/7 for guiding, caring and nurturing a growing child as against a father who needs to travel outside his normal place of stay frequently, I find that the mother is more suitable in whose hands the welfare of the child is secured.”

In his judgment, Justice Gupta also highlighted the aspect that the conduct of the father and his parents was inclined towards pampering the child inasmuch as an iPhone was given to the child when he was of six years of age. They have pampered the child by giving him 4-5 iPads. The mother had also deposed that child had once broken one newly purchased iPad but the father bought another iPad for the child immediately without any counselling to value the things purchased.

“These are instances which suggests pampering the child. From the controlled and supervised household of the mother, if the custody is given to the father, the sudden exposure to the materialistic things have the potency to derail the studies and wellbeing of the growing child.”

He, hence, held that that considering that the child has grown up in India in the last 11 years, the child would be exposed to physical and psychological harm, if he is shifted to Kenya amongst fellow students and teachers but without any friends. He would be taken care of by nannies, maids with pampering by the grandparents and the father. Hence, the child should remain with the mother.

[Smriti Madan Kansagra v. Perry Kansagra,  2020 SCC OnLine SC 887, decided on 28.10.2020]

Case BriefsSupreme Court

Supreme Court: In a case dealing with the custody of a 7-year-old, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ has said that mere fact that a mother is looking after the child with the assistance of her parents, does not detract from her role and responsibility as a mother.

In the present case, ever since the appellant and the respondent started living apart in 2016, the child has been in the care and custody of the appellant, his mother who was living in Bengaluru. The appellant, upon being temporarily transferred to Singapore by her employer, she sought for the child’s passport which was in possession of the respondent, the father. This is when the respondent filed an application for restraining the appellant from taking the child out of Bengaluru.

The respondent contended that the child is in the custody of the parents of the appellant in Bengaluru and should remain with them. Alternatively, he submitted that he would take charge of the child.

On this the Court noticed that while the parents of the appellant may have volunteered at least temporarily to relocate from NOIDA to Bengaluru to help the appellant in looking after the child, the respondent cannot be heard to assert that the child must continue to remain in Bengaluru with the maternal grand-parents.

“For the respondent to insist that the court should direct the continued presence of the child under the care of the maternal grand-parents who have come to Bengaluru and stay in a rented accommodation obtained by the appellant, does not appear to be fair.”

The Court was of the opinion that the fact that the parents of the appellant have moved to Bengaluru to help their daughter, does not transfer the custody of the child, either as a matter of law or fact, from the appellant to the maternal grand-parents.

It also said that there was no sufficient material to indicate that the respondent was in a position to look after the child on his own, by disturbing a position which has held the field since 2016. When the spouses were together, the child lived and grew up in the care of both the parents. Since 2016, the appellant has taken the responsibility for the welfare of the child.

Further, during the course of the interaction on the video-conferencing platform, the child indicated his desire to reside with his mother in Singapore. The Court, hence, noticed

“While the child is attached to the respondent, he has indicated, in no uncertain terms, his desire to live with his mother. The appellant is gainfully employed in Singapore and her desire that she should be allowed to take the child with her is not an artifice. The appellant, as the mother of the child, has been continuously with the child since his birth, despite the demands of her employment.”

Noticing that the interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing, the Court said that the respondent, as the father, is entitled to have adequate rights of access and visitation as a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security.

[Ritika Sharan v. Sujoy Ghosh,  2020 SCC OnLine SC 878, decided on 28.10.2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and V.M. Velumani, JJ., while addressing a matter with regard to child labour and the corrupt government officials existing in the system stated that,

“Parents should take care of their children and owing to their helplessness, they cannot send their children to work when the Government is providing education free of cost and also, free food apart from scholarships.”

On the directions of this Court, Superintendent of Police, Assistant Commissioner of Labour, Tiruppur along with Child Welfare Committee officials had raided the Chenniyappa Yarn Spinners (P) Ltd., however, no child labour was found. 

Chairperson, Child Welfare Board submitted that on an earlier date when the raid was conducted, during that time two child labour was to be working on the premises along with a few adolescents.

Few adolescents who were working at 8th respondents company stated that they were not willing to work as they were underpaid and working conditions were also not proper.

In view of the above situation, workers were rescued and kept at “SNEHA CHILD HOME”, Tiruppur and later handed over to their parents.

Court also enquired a few adolescent workers working in the 8th respondent company, who stated that they were not facing any problems working there but the Court observed that the said children were school-going children and it is known as to how they were entrusted with work when they had to go to school.

Bench also observed that the children were being tutored to speak and say statements that they were being educated while working, which on the face of it looks false.

It is also brought to the notice of this Court that some of the children, who have written the Plus Two Examination are unaware that the results have been declared. When that is the position, it is very difficult to believe that the Company is providing education to them.

Another significant fact that was brought to the notice of the Court was that most of the adolescent children were brought during the pandemic period to work in the 8th respondent company and no proper e-passes were obtained.

To bring children from one district to another without e-passes only implies that if money is paid, the authorities would bend and flout the Rules.

Bench added to its decision that the present case is a classic case that demonstrates as to how corrupt government servants utilize any situation to make an illegal gain.

Media has widely reported about the instances of getting e-passes by payment to authorities. This aspect has to be looked into seriously by the Government.

“…some of the corrupt officials, who are involved in issuing e-passes are bent upon making booty even in this worst scenario.”

“Cruel bloodthirsty wolves and they should be dealt with an iron hand.”

Court was shocked to note existence of cut-throat corrupt officials existing in the system.

Bench directed the 8th respondent to file an affidavit as to how they were able to bring the children to company premises without e-passes during the lockdown period.

The present case is only the tip of an iceberg as hundreds of such companies are in existence with rampant child labour, therefore police officials need to be vigilant and cautious of this social menace and hence conduct frequent raids to curb the same.

Matter has been listed for 20-08-2020. [C.M. Sivababu v. State of T.N., HCP No. 1299 of 2020, decided on 07-08-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]

Case BriefsHigh Courts

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]

Case BriefsSupreme Court

Supreme Court: Showing dismay over the “tardy implementation” of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act), the Bench of Madan B. Lokur and Deepak Gupta, JJ urged the Chief Justice of each High Court to seriously consider establishing child friendly courts and vulnerable witness courts in each district and said:

“We need to have some compassion towards them – even juveniles in conflict with law, since they are entitled to the presumption of innocence – and establishing child friendly courts and vulnerable witness courts is perhaps one manner in which the justice delivery system can respond to ease their pain and suffering.”

The Court said that such child friendly courts and vulnerable witness courts can also be used for trials in which adult women are victims of sexual offences since they too are often traumatized by the not so friendly setting and environment in our courts.

The bench also gave a number of directions in order to invigorate the juvenile justice system in the country. Some of the important directions are as follows:

  • All positions in the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for the Protection of Child Rights (SCPCRs) should be filled up well in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children.
  • The State level Child Protection Societies and the District level Child Protection Units should take the assistance of NGOs and civil society to ensure that the JJ Act serves its purpose.
  • All positions in Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) should be filled up expeditiously. The JJBs and CWCs must have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time.
  • The NCPCR and the SCPCRs must carry out time bound studies and especially a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers.
  • The Ministry of Women and Child Development (MWCD) should have a database of missing children, trafficked children and for follow up of adoption cases etc.
  • Meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act must be set up at the earliest as Police has an important role as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children.
  • The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event.
  • All the Child Care Institutes must be registered. State Governments and Union Territories would be should appoint eminent persons from civil society as Visitors to monitor and supervise the Child Care Institutions in all the districts.
  • The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State Governments and the Union Territories. Financial Resources should be made available for the welfare of the children.
  • All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position.
  • The Chief Justice of every High Court is requested to register proceedings on its own motion for the effective implementation of the JJ Act so that road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities.

The Bench said the policy and decision makers should understand that they are not doing any favour to the children of our country by caring for them – it is their constitutional obligation and the social justice laws enacted by Parliament need to be effectively and meaningfully enforced. [Sampurna Behura v. Union of India, 2018 SCC OnLine SC 106, decided on 09.02.2018]

Case BriefsSupreme Court

Supreme Court: After the father of the 7-year-old, who was found dead last week in a toilet of Ryan International School in Gurugram where he was a Class II student, filed a petition before the Court, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ issued notice to the Centre, Haryana Government and School authorities returnable within three weeks.

Pradyuman’s father had prayed before the Court to ensure absolute safety and security of each and every child studying in all the schools across the country and to command the authorities of the school managements and the promoters to take steps so that the safety and security is sustained and no one is affected. He also prayed for framing guidelines and also to take appropriate actions against the violators.

The Court noticed that the petition was not restricted to Ryan International school as it has a countrywide effect. [Barun Chandra Thakur v. Union of India, 2017 SCC OnLine SC 1070, order dated 11.09.2017]

Case BriefsSupreme Court

Supreme Court: In the petition highlighting the alarming increase in the use of drugs and alcohol among children in India, the Court said that these are matters which should not be brushed under the carpet. The authorities should consider how children should be sensitized, having due regard to the age and stage of the child, of the dangers of drug use, the necessity to report drug use and the need to develop resistance to prevailing peer and social pressures. The 3-judge bench of T.S. Thakur, CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ listed the below mentioned immediate measures to be taken up by the Union of India:

  • Formulation of a national action plan for children;
  • Creation of a module containing an appropriate curriculum for children of all age groups in order to keep them away from drugs, alcohol and tobacco;
  • Setting up of de-addiction centres;
  • Establishing a standard operating procedure on enforcing the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 particularly Sections 77 and 78; and
  • Implementing the action plan with the national policy on narcotic drugs and psychotropic substance which has been approved by the Union Cabinet.

Taking note of the recent reports both of official and private agencies which indicate that there has been a substantial increase in the prevalence of use and abuse of substances in young children, the Court directed the Union Government to:

  • Complete a national survey and generate a national data base within a period of six months;
  • Formulate and adopt a comprehensive national plan within four months, which will among other things also address the areas of immediate concern noted earlier; and
  • Adopt specific content in the school curriculum under the aegis of NEP.

[Bachpan Bachao Andolan v. Union of India, 2016 SCC OnLine SC 1467, decided on 14.12.2016]