- (1.) IT is a case of abuse of an infant male child belonging to a poor rustic woman by the Superintendent of a Children (Home)/ orphanage by misusing the process of court and of the law. The poor woman, the mother, came for redressal of her grievances before this Court by filing a petition of Habeas Corpus to get back her newly born son.
(2.) FACTS The factual matrix of this case in brief is that Smt. Neesha is a poor lady whose husband is working as labourer in brick kilns in the State of Gujarat. When Smt. Neesha became pregnant of about seven months, her husband sent her to live with her mother Smt. Sujau Devi, a resident of Village Nau Ka Purwa, Police Station Asandra, District Barabanki. She got a Health Card (Annexure 1 to this petition) from Primary Health Centre (PHC), Siddhaur, District Barabanki. The delivery of child was expected in the month of May, 2012. However in the intervening night of 19/20th of May, 2012, when her mother and sister were gone on the agricultural field for irrigating of peppermint plants crop, she gave birth to a male child in her house. At that time, she was alone in the house. During the course of giving birth, she became unconscious due to labour pain. A lady of unsound mind Smt. Jagrana who used to live outside the house of her mother, in unconscious state of Smt. Neesha, took the child. Thereafter some resident of the village informed the police that somebody has left her baby with Smt. Jagrana. The police of Police Station Asandra took the custody of infant with the help of villagers. But later on the child was given to Smt. Neesha after intervention of village Pradhan and other villagers. The police also informed Child Help Line. In pursuance thereof the Superintendent, opposite party no.5 - Shriram Audyogik Anathalaya Sector -I, Aliganj, Lucknow, namely, Ms. Ruchi Tripathi came to the village and gave an application (Annexure -2 to this petition) to the police for taking custody of the infant. Sub -Inspector, Sri Satish Kumar Singh, P.S. Asandra, District Barabanki by a memo of handing over the child dated 21.05.2013(Annexure -3 to this petition) gave the infant to Ms.Ruchi Tripathi after taking the child back from Smt. Neesha. The thumb impression of Smt.Sujau (the grand Maternal mother(Nani) of the infant and mother of Smt. Neesha) was also obtained thereon. The aforesaid incident was published in a newspaper (Annexure -4 to this petition) under the heading of "Pagli Nikali Sayani" giving the details of the incident. Consequently, the Child Welfare Committee, Barabanki (hereinafter referred to as the 'CWC -Barabanki') constituted under Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to the 'Act 2000') after exercising its jurisdiction within the territorial limits of District Barabanki, issued a notice for production of the child to Station Officer (for short"S.O.") of Police Station Asandra, District Barabanki along with his inquiry report about the child. The S.O. Concerned entrusted the matter to S.I. Satish Kumar Singh to inquire into the same and to submit report before C.W.C., Barabanki. Sub -Inspector Satish Kumar Singh submitted the inquiry report (Annexure -5 to this petition) before C.W.C., Barabanki indicating therein that after going through the news article "Pagli Nikali Sayani" dated 21st of May, 2012, he went on spot and took the child in custody from Smt.Sujau, the grand maternal mother (Nani) of the child and Village Pradhan, Rana Pratap Singh at Police Station after making an entry in general diary of police station at S.No.37 at 19.30 hours. After getting the information from Child Help Line, the Superintendent Ms.Ruchi Tripathi came to the Police Station and the so called unclaimed child was given her for his better future and to look after the child, however no reference of illness of child was mentioned in the report. It was mentioned in the report that Ms. Ruchi Tripathi was contacted by him on her mobile phone and asked for production of the child on 12.06.2012 but she expressed her inability to come and produce the child. A request has been made in his report by Sri S.K. Singh, Sub -Inspector with C.W.C., Barabanki to give some other date. He also requested to CWC Barabanki that the Superintendent Ms.Ruchi Tripathi be also informed for producing the child before the C.W.C., Barabanki. The report submitted by opposite party no.5 and a copy of Supurdginama along with two G.D. entries were placed along with report before C.W.C., Barabanki on 12.06.2012. Smt. Sujau also moved an application (Annexure 6 to this petition) before C.W.C., Barabanki claiming the child as a child of her daughter Smt.Neesha. On failure to produce the child by Superintendent of Opposite Party No.5 , the President of CWC -Barabanki informed to the Director, Women Welfare, Directorate of Women Welfare Uttar Pradesh vide letter dated 23.06.2012 (Annexure -7 to this petition). It was also informed therein that the biological parent of child are now known. The child was handed over in an unauthorised manner by the police of P.S. Asandra District Barabanki to superintendent of Opposite Party No.5 and now Ms. Ruchi Tripathi is not producing the child before C.W.C., Barabanki and necessary directions were sought. The C.W.C., Barabanki also issued a letter to Superintendent of Police, Barabanki to take notice of it and asked him to ensure the production of the child on 26.07.2012 before C.W.C., Barabanki. Police of Police Station Asandra by its report (Annexure -9 to this petition) informed C.W.C., Barabanki on 26.07.2012 that Ms. Ruchi Tripathi has informed that the child is seriously ill and it is not possible to take him to any other place. She gave a photostat copy of order of Child Welfare Committee, Lucknow (hereinafter referred to the 'C.W.C., Lucknow') to show that the child was produced on 25.05.2012 before CWC Lucknow and gave a letter that she has completed all formalities and she took the child in her custody so there is no occasion to produce the child before the C.W.C., Barabanki as the same has no jurisdiction in this matter. When on 26.07.2012, the child was not produced by Ms. Ruchi Tripathi, the C.W.C., Barabanki wrote letters (Annexure -10 to the petition) to the Director, Women Welfare, Uttar Pradesh on 18.08.2012 and 23.08.2012 informing all the events which happened with the child but unfortunately no action has been taken in the matter by Directorate. Thereafter, Smt. Neesha on 22.08.2012 approached the District Magistrate, Barabanki by moving an application (Annexure -11 to this petition) but she got no response. Ultimately, on the failure to get her child back, the mother of the child filed the present petition for a direction to issue a writ of habeas corpus commanding the respondent no.5 to produce the petitioner child before this Court and to handover the custody of the petitioner -child to her mother Smt.Neesha. A mandamus has also been sought for commanding the opposite parties to pay Rupees one lakh as compensation to the petitioner for illegal detention of her child. When the matter was taken up on 19.02.2013, the following order was passed by this Court: "It has been pleaded that a baby boy was born to Neesha (deponent). The said child was picked up by a lady of unsound mind and was given in orphanage / respondent no.5. By way of this petition, Neesha (deponent) claims the custody of the detainee. Learned counsel for the petitioner has pointed out that the proceedings are pending before respondent no.4. No proper enquiry has been conducted so as to establish the parentage of the child and no step has been taken to give the custody of the child to Neesha. Let respondent no.4 conclude the enquiry and other proceedings, before the next date of hearing and file report before this Court. On facts, respondent no.5 shall also file report before this Court. Let the report be filed in sealed cover, considering the sensitivity of the matter and the future of the child. Let copy of this order be conveyed to respondent nos.4 and 5 through Registrar of this Court. List this case on 13.3.2013."
(3.) IN compliance of the aforesaid order the C.W.C., Barabanki submitted its report with CDs of video recording of inquiry conducted. However Opposite Party No.5 filed the record. The record produced by Opposite Party No.5 and C.W.C., Barabanki with CD of conducted inquiry were form part of the record of this Court. After orders passed by this Court C.W.C., Lucknow also submitted its record. The record reveals that CWC - Lucknow has no office to conduct its business or to keep the record of proceedings. The original record of CWC Lucknow is prepared, maintained and kept by the Opposite Party No.5 which is also registered as adoptive agency. The record produced by Ms. Ruchi Tripathi contains the following documents also: - 1. Medical prescription of petitioner -child who was medically checked on 22.5.2012 as OPD patient in the Aliganj hospital Lucknow 2. letter dated 21.5.2012 which was again signed on 25.5.2012 showing therein that child was produced before C.W.C., Lucknow by Ms Ruchi Tripathi on 25.5.2012. In this letter it has been mentioned that doctor assessed the age of male child Pratike about 15 days and the weight 2.25 Kg and child is healthy. 3. She also enclosed form No. X ( under Sub -Rule18 of Rule 27) showing therein the next date of production of child as 22.5.2012 but the child was produced before C.W.C., Lucknow on 25.5.2012. This form was prepared by Ms. Ruchi Tripathi. having following order passed by C.W.C., Lucknow thereon. (English translation of the order passed by CWC Lucknow dated 25.5.2012) " Information of this matter be given immediately to CWC Barabanki. For the best interest of the child give shelter in your institution." 4. Prescription of OPD indicating medical examined of child on 26.5.2012 in Aliganj Hospital at Lucknow . No ailment in the child was noticed by doctors. 5. A discharge slip has been filed showing admission of Child Pratik of 18 days in Balrampur Hospital, Lucknow on 31.05.2012 due to septicaemia with low GC and discharged on 06.06.2012. 6. Prescription dated 06th July, 2012, showing that the Child was again medically checked by Dr. S. Niranjan of Lucknow and certain investigations were also directed. 7. The form of registration indicating therein all the particulars relating to adoptive parents (Opposite Parties No.6 and 7). On the basis of which they got them registered on 02.07.2012 with the adoptive agency Shree Ram Audhyogic Orphanage. Thereafter the child Pratik was given by Ms. Ruchi Tripathi on 07.07.2012 to proposed adoptive parents (Soni's) on the pretext of providing better treatment by admitting him in the hospital to save his life. But no record of admitting the child in any Hospital was brought on record after 07.07.2012. 8. A Home Study Report dated 22.07.2012 of proposed adoptive parents by one Manoj Kumar of Shree Ram Audhyogic Orphanage. From psychological study report being part of Home Study report showing therein that they wanted to take a girl child in adoption with a remark that the adoptive parents can bring up the child properly and the future of girl would be bright. 9. A letter dated 26.07.2012 addressed to Station Officer, Police Station Asandra, Barabanki under copy to S.P. Barabanki , written by Ms. Ruchi Tripathi on the letter head of Shree Ram Audiyogic Orphanage. ( English Translation of the letter0 "Letter - 44/Shree.Aio. Aa./12 Dated:26.7.12 To, Station Officer,Asandra, Barabanki. Subject: - Information about 15 days old child Sir, It is to inform that from your police station on 21.05.12 I was informed that local resident informed an abandoned child of 15 days, consequently after reaching at your police station the abandoned child was handed over by you to Orphanage. The Orphanage in accordance with rules gave shelter to the child came in Orphanage as per orders of CWC Lucknow, the information of which has been given to CWC Barabanki along with copy of order of CWC Lucknow.(Take cognizance that under the rules of J.J. Act ,child who is abandoned or orphan given in shelter under orders of CWC which has been fully complied with.) Therefore, it appears that Chairman Sri Angad Singh of CWC Barabanki is harassing the child and Institution for some personal reasons. Therefore, prayed that in view of the above facts take appropriate action. Copy to : - Superintendent of Police , Barabanki Enclosed: - (1) Copy of CWC Lucknow (2)Supurdgi of Asandra Police Sd - (Seal) Superintendent, Shree Ram Audhyogic Orphanage Sector "I" Aliganj, Lucknow" 10. The Child study report dated 27.7.2012 prepared by one Shruti Tripathi Counsellor disclosing that orphan child Pratik was also shown with another name 'Shiva' having date of birth of 06.05.2012 and taken birth in Barabanki a Hindu male, was admitted in Shree Ram Audhyogic Orphanage on 21.05.2012 after getting it from police. At the bottom of this report consent dated 28.7.2012 at Lucknow of Satendra Soni and Smt. Meenakshi Soni for taking this child in adoption is also mentioned. 11. Form No -XIV [Under Rule 33(3)(c)] was issued by CWC Lucknow on 27.7.2012 declaring the child Pratik free for adoption. The undertaking was also given in this formate by Ms.Ruchi Tripathi to adhere all the provisions of Act, 2000 as contained in Chapter -III and IV. 12. A letter with no date, addressed to Officer In -charge /Additional District Officer, Lucknow by which intimation has been given that meeting of Adoption Committee will take place at 6.00 pm on 28.07.2012. 13. The proceedings of the meeting of that Committee approving the adoptive parents Meenakshi Soni and Satendra Soni fit to take the child in adoption, (appears to be prepared earlier to this meeting with computer, after filing the date therein as 28.7.3012 in hand.) These proceedings on separate sheet were signed by all concern including In -charge/ADO, In -charge member, Doctor and Ruchi Tripathi. 14. Letter dated 28.07.2012 by Ms. Ruchi Tripathi informing the adoptive parents that they were found fit to take child Pratik in adoption along with copy of Child Study Report and medical report, asking there consent within ten days. 15. Undated consent letter of adoptive parents with a cheque of Rs. 40000/ - given to Opposite Party No.5.(as encloser) 16. The report from District Crime Record bureau (in short 'the DCRB') of Barabanki of dated 25.7.2012 that no report of missing child of 15 days during last two months has been lodged in the police with Barabanki. ;