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Om Prakash Vs. Child Welfare Board - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 192 of 1976
Judge
Reported inAIR1980Delhi137; 17(1980)DLT368
ActsChildren Act, 1960 - Sections 2; Guardian and Wards Act, 1890 - Sections 10
AppellantOm Prakash
RespondentChild Welfare Board
Advocates: Arya Girdhari and; P.D. Bhargava, Advs
Excerpt:
.....guardians & wards act not maintainable against child welfare board.; the custody of rajesh, a neglected child with no home was taken by child welfare board, a body constituted under the children act, 1960. however, on august 22, 1966, the board gave the custody of the child to one manek lal vohra and his wife chandra kanta. manek lal died on february 22, 1972 and his wife on august 18, 1975, whereupon on october 15, 1975, the chairman of the board ordered taking back of the child. since then the child is with the board which has placed the child in an institution known as sos (save our souls). one om prakash, however, made an application under section 10 of the guardians and wards act to the district judge for the custody of the child on the plea that on the death of manek lal..........16. they found that vohras were fit persons. on their death the board had the right, may the duty, to resume the custody of the child (section 40). this they did. om prakash cannot insist upon his right to custody. he is not a fit person in the opinion of the board. the district judge agreed with the board. i cannot say that he was wrong. (17) the competent authority is a public body, armed with the statutory powers. the statute casts a public duty on it, the duty to receive and to take care of neglected children. there is a positive public duty to receive neglected children and provide for their moral and material needs. all round growth and development of his personality is the goal the legislature has set before itself. the preamble to the act sets out the will of the legislature......
Judgment:

Avadh Behari Rohatgi, J.

(1) This is an appeal from the order of the District Judge dated August Ii, 1976, under section 47 of the Guardians and Wards Act, 1890.

(2) The real question in this appeal is about the custody of a male child called Rajesh. He is today 13 years of age. He was a 'neglected child'. He had no home. There was no one to look after him. The Child Welfare Board, a body constituted under the Children Act, 160 (the Act) took the child into their care and custody. On August 22, 1966, the Board gave the child to one Manak Lal Vohra and his wife Chandra Kanta for keeping him in their foster care. They had no male child. Rajesh was then 13 days old. Manak Lal and his wife brought upp the child with parental care. He became the centre of their leve and affection. He remained in their custody till 1975.

(3) Manak Lal died on February 22, 1972. After his death, his wife Chandra Kanta took care of the child. On August 18, 1975 she died. On October 15, 1975, the Chairman of the Board made an order for taking back the child into their custody. Since then the child is with the Board. They have placed the child in an institution known as Sos (Save Our Souls). Sos is a children's home. It is a social service agency. They arc keeping children in a village near Green Fields in Faridabad. They have. erected huts. Sisters of the mission are in charge of the children. The children arc well looked after by the sister. They are being educated.

(4) One Om Prakash made an application under Section 10 of the Guardians and Wards Act to the District Judge for the custody of this child Rajesh. He claimed that Manak Lal had adopted Rajesh and after his death he married his wife Chandra Kanta and it was he who was really responsible for the upboringing of the child. This was the main ground of his claim. The Board contested the claim. The learned District Judge rejected the claim on the ground that he was not a fit person, Om Prakash is a young man of 32 years of age. He may remarry. He may not. If he remarries he will have children of his own. If he does not, there will be no one to look after the child in the house. thereforee it cannot be said that v is in the interest of the child that he should be handed over to Om Prakash. This was the main consideration which weighed with the District Judge in declining custody to Om Prakash

(5) There was yet another reason. Manak Lal, it appears, had great love for the child. He made a will in favor of Rajesh. He has bequeathed property worth a lakh of rupees to this child. The Board objected to the claim of Om Prakash also on the ground that he was mainly interested in securing for himself the property of the child. They pleaded that custody of the child should not be given to Om Prakash.

(6) While considering the question of fitness the District Judge commonted on the marriage of Om Prakash with Chandra Kanta, a woman much senior to him in years and her death ultimately in mysterious circumstances. It was also given in evidence that Om Prakash had a love affair with a girl in Billimaran. In all the circumstances of the case and keeping before him the pre-eminent consideration of well- being of the child the learned District Judge came to the conclusion that he ought to decline custody to Om Prakash. In my opinion his decision is right, In all these cases welfare of the child is the paramount consideration. The learned judge has considered the welfare of the child and has come to the conclusion that he should remain with the Sos where he is being properly looked after at present. The chairman of the Board has made an affidavit saying that the child is happy in the foster care of the SOS. He is studying in the 7th class in Govt. Higher Secondary School, Lodbi Road, New Delhi.

(7) One other question arises. It is about the maintainability of the application under Section 10 of the Guardians and Wards Act. In my opinion, no such application lies against the Child Welfare Board. The Board has the duty to take 'neglected children' into their custody. The Administrator is required to establish, and maintain children's homes for them. Every children's home to which a neglected child is sent has to provide the child not only with food, nourishment, accommodation and facilities for education but also facilities for training and development of character and abilities. 'All round growth and development of his personality' is the ultimate aim (Section 9). So that the child can protect himself against 'moral danger or exploitation.' The Board is statutorily charged with the duty to take care of what it calls the neglected child. In its supervised care the orphaned, neglected or delinquent children are to be reared and raised. Like Plato's guardians, the legislature has appointed the Board as the guardian. In its fosterage the neglected children are 1 to be brought up. Against the statutory body such as the Child Welfare Board there can be no claim or right to the custody of a child committed by the legislature to its foster care. It is incongruent and incompatible with the scheme and design of the Act. In my opinion, the application under Section 10 was misconceived.

(8) Children are the most volnerable group in any population and in need of the greatest social care. The state has the duty of according proper care and protection to children at all times, as it is on their physical and mental well-being that future of the nation depends. They are gems of the purest ray serene. The Act provides for 'the care, protection, maintenance, welfare, training, education and rehabilitation' of neglected children' in the union territories. (See the preamble to the Act). Conscience of mankind has awakened to the need to provide special protection to children the neglected, destitute, homeless and those who suffer.

(9) Under Section 4 the Administrator is empowered to constitute Child Welfare Boards for exercising and discharging the duties imposed on such Board in relation to neglected children. The Administrator is also authorised to establish children's home for the reception of neglected children. The functions of the children's homes are given in section 9(3) of the Act. The sub-section reads :

'EVERY children's home to which a neglected child is sent under this Act shall not only provide the child with accommodation, maintenance and facilities for education, but also provide 'him with facilities for the development of his character and abilities and give him necessary training lor protecting himself against moral danger or exploitation and shall also perform such other functions as may be prescribed to ensure all round growth and development of his personality.'

Where a Board is satisfied on inquiry that a child is a neglected child and that it is expedient so to deal with him. the Board may make an order directing the child to be sent to a children's home for the period until he ceases to be a child [Section 15(2)]. A child means a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. [Section 2(e)].

(10) The Board is also given the power to commit a neglected child to the custody of a suitable person. Section 16(1) says :

'IF the Board so thinks fit, it may, instead of making an order under sub-section (2) or Section 15 for sending the child to a children's home, make an order placing the child under the care of a parent, guardian or other fit person, on such parent, guardian or fit person executing a bond with or without surety to be responsible for the good behavior and well-being of the child and for the observance of such conditions as the Board may think fit to impose.'

(11) If the Board finds that there has been a breach of any of the conditions imposed by it in respect of the child, it may, after making such inquiry as it deems fit, order the child to be sent to a children's home [Section 16(3)].

(12) Under the Act the Board is the 'competent authority' in relation to neglected children [Section 2(h)]. The competent authority has the power to entrust the child to the care and protection of a 'fit person' or 'fit institution'. The person or the institution must, in the opinion of the competent authority, be fit to receive and take care of the child. The competent authority can specify the terms and conditions on which it gives the child to a person or institution. [See Section 2(g)]. Section 40 of the Act gives power to the competent authority to amend its order as to custody. The Section reads:

'Without prejudice to the provisions for appeal annd revision under this Act, any competent authority may, either on its own motion or on an application received in this behalf, amend any order as to the institution to which a child is to be sent or as to the person under whose care or supervision a child is to be placed under this Act.'

(13) Section 33 sets out the circumstances the competent authority shall take into consideration in making an order in respect of a child. The over-riding consideration, of course, is the 'interests' of the child.

(14) From the orders of the competent authority any aggrieved person may prefer an appeal to the Court of Sessions without 30 days from the date of the order. No second appeal is provided. The High Court in revision is empowered to call for the record of the competent authority or the court of sessions for the purpose of satisfying itself as to the legality or propriety of an order passed by either of them. The High Court thereupon can pass such order as it thinks fit (Sections 37 and 38).

(15) A rapid survey of these provisions makes it abundantly dear that the provisions of the Guardians and Wards Act have no application. They cannot be invoked by an aggrieved person. The remedy is provided by the Act. The Act provides for an appeal to the court of session. On the contrary, Om Prakash went to the District Judge with an application under Section 10 of the Guardians Act of 1890. It is thereforee clear that the appellant, Om Prakash, adopted a wrong remedy, assuming that he was an aggrieved person. He mistook the legal procedure. He was mistaken in the law. He took a mistaken vjew of his right or claim.

(16) The Board had the right to give custody to Manak Lal Vohra and his wife under Section 16. They found that Vohras were fit persons. On their death the Board had the right, may the duty, to resume the custody of the child (Section 40). This they did. Om Prakash cannot insist upon his right to custody. He is not a fit person in the opinion of the Board. The District Judge agreed with the Board. I cannot say that he was wrong.

(17) The competent authority is a public body, armed with the statutory powers. The statute casts a public duty on it, the duty to receive and to take care of neglected children. There is a positive public duty to receive neglected children and provide for their moral and material needs. All round growth and development of his personality is the goal the legislature has set before itself. The preamble to the Act sets out the will of the legislature. The competent authority is charged with the duty of executing its commands and giving effect to its will.

(18) The remedy of the appeal is misconceived. Suppose I treat this appeal as a revision under the Act. On merits of the claim of Om Prakash and his fitness I am not prepared to differ from the view taken by the learned District Judge.

(19) For these reasons the appeal is dismissed.


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