ORDER : Annie John, J. This Revision Petition is filed against Order No.CWC/TVPM/113/2019 dated 19.02.2019 issued by the Child Welfare Committee, Thiruvananthapuram District. The legality and propriety of Order No.CWC/TVPM/113/2019 dated 19.02.2019 whereby the respondents have declared that the minor daughter of the revision petitioner is a child who requires care and protection and further that the care, protection, further studies and counselling shall be carried out by admitting the child in an institutions, is under challenge. 2. The revision petitioner is the mother and natural guardian of a minor female child who was allegedly subjected to an incident of sexual assault. The revision petitioner is also espousing the grievance of the father of the aforementioned child, who, being abroad in connection with his avocation is unable to be a party in this proceedings. 3. The minor child (victim herein) belongs to a middle-class family which is having social reputation and goodwill in the vicinity of their residence. The child was under the care and protection of her mother/revision petitioner, grandmother, father's younger brother and his son who were living like a joint family in their residences situated at around 20 meters apart. Apart from the aforesaid minor child, the revision petitioner is having another daughter who got married one year back. At present, the victim child is studying in the 10th standard in a reputed school near by and she is now slated to appear for her board examinations which are scheduled to be commenced on 05.03.2019. 4. It was further alleged that on 02.02.2019, the revision petitioner's family understood about the alleged incident of sexual assault of her daughter by Imam Sheikh Kasmi. Immediately after the victim reached her home, the revision petitioner enquired with her daughter about the true facts with regard to the alleged incident but she had totally denied it. Since the victim had denied about sexual assault, the revision petitioner believed her words. Later, it is learnt by the revision petitioner through the media that during the counselling, the victim has confessed to the fact, that she was subjected to sexual assault, and her statement has been recorded by the Magistrate. The Child Welfare Committee have insisted that the child can be permitted to go only along with her father and accordingly, the revision petitioner's husband arrived in Kerala on 14.02.2019. The Child Welfare Committee have insisted that the child can be permitted to go only along with her father and accordingly, the revision petitioner's husband arrived in Kerala on 14.02.2019. Despite the fact that the investigation pertaining to the aforesaid incident was over, the Child Welfare Committee refused to handover the custody of the child to the revision petitioner. Thereafter, the respondents issued an Order dated 19.02.2019 under Section 37 of the Act wherein a finding has been entered upon that the minor daughter of the revision petitioner is a person who requires care and protection and further, directed that the care, protection, further studies and counselling shall be carried out by admitting the child in an institution. The continued detention of the victim under the orders of the Child Welfare Committee is prejudicial to the rights, interests, future and the well being of the victim as the minor requires the moral support, guidance and presence of her mother and close relatives during the aforesaid examinations and for her future life. The child has been subjected to intense unwarranted media attention and immense mental distress due to her stay in an alien place. It is highly essential to get custody of the child as she should prepare and appear for the examinations and the continued detention against her wish would be prejudicial to the interests of the child. Further it was alleged that the adolescent child requires the care and support of her parents and close relatives for her future life. Now the revision petitioner has approached this Court by stating that the Order passed by the Child Welfare Committee is illegal and the minor child was under the proper care and support of the revision petitioner and her relatives. The Orders of detention have been passed by the respondents without providing an opportunity of hearing to the revision petitioner and without adverting to the fact that the detention is against the wishes of her daughter. The respondents are not expected to create a situation where the revision petitioner cannot be permitted to see or interact with her daughter or to make telephone calls with her. The respondents have stationed the revision petitioner's daughter against her wish only due to the intense media attention with regard to the case. The respondents are not expected to create a situation where the revision petitioner cannot be permitted to see or interact with her daughter or to make telephone calls with her. The respondents have stationed the revision petitioner's daughter against her wish only due to the intense media attention with regard to the case. By any such of imagination, it cannot be said that the revision petitioner's daughter was not given proper care and support by her family and the stray incident cannot come in the way of the revision petitioner for obtaining the custody of her child. 5. The Child Welfare Committee, Thiruvananthauram entered appearance through the Government Pleader and filed the statement of facts. The child of the Revision Petitioner was subjected to sexual abuse on 02.02.2019 in the vicinity of Peppara Forest Area by her family friend named Imam Mr. Shafeek Al-Kasmi. The incident was witnessed by local people which led to attention of mass media both print and visual. The inquiry reports of the District Child Protection Unit, Child line and counselling report of the Snehitha Shelter Home emphasized the need for continued counselling, and the temporary shelter of victim in the shelter home. Even though, the petitioner claims the incident as sexual assault, really the incident is an aggravated penetrative sexual assault which is evident from the two written statement of child given to the Child Welfare Committee on 16.02.2019 and 21.02.2019 referred in Exts.4 and 5. The decision of the Child Welfare Committee to provide temporary shelter to the child was based on the cardinal principle of safety and is not to create any harm or maltreatment to the child in the care and protection system. In the Order No.CWC/TVPM/113/2019 dated 19.02.2019 it is clearly mentioned that the Child will be at Shelter Home until a stable and safe family environment developed from the part of the petitioner. It is true that the child appeared for the examination. The father of the child also appeared before the Child Welfare Committee on 15.02.2019 and the Child Welfare Committee has given permission to visit the child also. Even though, the sexual assault took place on 02.02.2019 the petitioner and her relatives have not reported the matter to the Police. So Police could not proceed mandatory and do Urgent Medical Examination of the child. Even though, the sexual assault took place on 02.02.2019 the petitioner and her relatives have not reported the matter to the Police. So Police could not proceed mandatory and do Urgent Medical Examination of the child. As per the report of the District Child Protection Officer, the home stay of child is not congenial to restore child to the petitioner and the report further discloses that the accused in this case is well known religious leader and is a frequent visitor of the petitioner's family. Therefore, there exits no safety and threats to the child and child is at risk. The Revision Petitioner is not capable of providing care and protection to the child. In the aforesaid reasons the Child Welfare Committee prays for dismissing the application. 6. Heard the learned counsel for the petitioner as well as the Government Pleader appeared for the Child Welfare Committee. 7. The learned counsel for the revision petitioner strenuously argued before us that the wishes of the child has not been considered by the Child Welfare Committee and they have straight away stationed her in the institution, finding that, she is not safe at her residence. According to the respondents victim is a child in need, care and protection under Section 2(14)(iii)(a) of the JJ Act. 8. In this connection it is worth quoting Section 2(14)(iii)(a) of Juvenile Justice Act, wherein it is defined who is a “child in need of care and protection”, if any child is residing with a person (whether a guardian of the child or not) and if such person has injured, exploited, abused or neglected the child, the child would be 'a child in need of care and protection'. 9. Further Section 2(14)(v), reads as follows:- “even if a child has a parent or guardian, when such parent or guardian is found to be unfit or incapacitated by the authority concerned to care for and protect the safety and well being of the child, then the child would be 'a child in need of care and protection'. 10. It cannot be said by any stretch of imagination that the revision petitioner has injured, exploited, abused or neglected the child in order to define the child as a person in “need of care and protection”. 10. It cannot be said by any stretch of imagination that the revision petitioner has injured, exploited, abused or neglected the child in order to define the child as a person in “need of care and protection”. According to the counsel for the revision petitioner, the stray incident of sexual abuse outside the control of revision petitioner cannot lead to such a logical conclusion. The learned counsel has also further argued that the respondents while issuing Annexure A9 Order completely ignored the mandate under Section 3 of the Juvenile Justice Act. In this context, it is pertinent to peruse the importance of Section 3 of the Juvenile Justice Act envisaged as follows: 3. The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:– (i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years. (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights. (iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child. (iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be. (vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter. (vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act. (vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act. (viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child. (ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver. (x) Principle of equality and nondiscrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. (xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process. (xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry. (xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be reunited with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest. (xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances. (xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole. (xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act. 11. At present, the revision petitioner has filed petition under Section 102 of the of the Juvenile Justice (Care and Protection of Children) Act, 2015. 11. At present, the revision petitioner has filed petition under Section 102 of the of the Juvenile Justice (Care and Protection of Children) Act, 2015. It is important to quote Section 102 of the above said Act. Section 102 is envisaged as follows: “102. The High Court may, at any time, either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any Committee or Board or Children’s Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit: Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.” 12. Now, the petitioner has filed revision challenging order passed by the Child Welfare Committee dated 19.02.2019. Exhibit 6' was produced by the respondents. It is an order dated 19.02.2018 wherein it was stated that the District Child Protection Officer filed a report on 08.02.2019, on which it was reported that the father of the victim is working in Gulf country as a driver. At present the victim is residing along with her mother. Further, it was reported that the accused is a frequent visitor of the residence of the victim. He is well known religious leader and he has not been arrested sofar. Considering this aspect, it is not safe to release victim to the petitioner, as her life will be endangered. Further it was also reported that the victim had a similar manner of sexual assaults earlier. Under such circumstances, it is highly required to give further counselling to child so as to release her mental stress, for that purpose it is highly necessary to give protection by the Child Welfare Committee. Accordingly, by invoking Section 2(14)(viii) of the said Act, she was stationed in the institution. Further, by invoking Section 37 of the Juvenile Justice Act, she was given in the custody of Poojapura Women’s and Children Home for continuing her education, counselling etc. Now, this order has been under challenge in this case. 13. Accordingly, by invoking Section 2(14)(viii) of the said Act, she was stationed in the institution. Further, by invoking Section 37 of the Juvenile Justice Act, she was given in the custody of Poojapura Women’s and Children Home for continuing her education, counselling etc. Now, this order has been under challenge in this case. 13. Virtually the finding entered by the Child Welfare Committee is that the revision petitioner is incapacitated in looking after the child and there is possibility of contacting the child by the accused who is involved in POCSO case. Further it has held by the committee that the victim was treated as 'child in need of care and protection' by the committee and accordingly, the provision under Section 2(14) (v) of the Act was invoked by the Child Welfare Committee. 14. Section 2(14)(v) of the Act reads as follows: “2(14) “child in need of care and protection” means a child- (v) who has a parent or guaradian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or” Before invoking Section 2(14)(v) of the JJ Act the authority has to look into the general principles under Section 3 of the JJ Act. Section 3 of the JJ Act would state certain general principles which is to be followed in the administration of the Act. I have already mentioned Section 3 of the JJ Act in the earlier paragraphs. 15. Now, the question to be considered is whether the Child Welfare Committee has considered request of the petitioner as well as the wishes of the child. 16. The child was produced before us and we interacted with the child in Chamber in the absence of mother and her relatives. She has stated that she is studying in 10th standard and her final examination is going on. She apprehence that she would fail if she stays at the Children's home. She expressed her desire to go along with her mother (revision petitioner). She has trust and confidence upon revision petitioner. She has further stated that the mother would be able to give necessary guidelines and help in her studies. She further stated that if she is not permitted to go along with her mother, she may be permitted to go along with maternal grandmother. She has trust and confidence upon revision petitioner. She has further stated that the mother would be able to give necessary guidelines and help in her studies. She further stated that if she is not permitted to go along with her mother, she may be permitted to go along with maternal grandmother. She expressed her desire to go with grandmother and stated that she will look after her very well. We have understood the mental status of the child and she was not ready to continue to live in the institution where she was stationed now. She is very badly wanted to go along with her family members and she is very much confidence that her mother, grandmother and father's brother would take care of her at her residence. She is not satisfied with the home where she is stationed now. After interaction with the child, we understood that she is having mental stress as she has suddenly removed from her family atmosphere. She is not capable of continuing her studies without the presence of her mother. The interaction of child reveals that she is not able to continue in the present atmosphere and her mental stress is increasing. We have also interacted with the mother (revision petitioner), grandmother and brother of father of child. They are all ready to take care of the child. 17. Now let us come to the merits of the case. As per the impugned order, the victim was produced before the Child Welfare Committee as per Section 31 of the Act. When the child who appears to be in need of care and protection is produced and it is mandate to conduct inquiry under Section 36 of the Act. 18. The Section 36 of the Act is dealt with inquiry. It says that the Committee shall hold an inquiry in such a manner as may be prescribed and the committee, on its own or on report from any persons or agency as specified in Subsection 2 of Section 31, may pass an order to send a child to the Children's Home or a fit facility and or fit person, and for speedy social investigation by a social worker or Child Welfare Officer or Child Welfare Police Officer. 19. In this connection it is pertinent to go through the relevant provision regarding regulating making of rules. 19. In this connection it is pertinent to go through the relevant provision regarding regulating making of rules. Section 110 deals with the power of the Child Welfare Committee to make rules. It says that “110. (1) The State Government shall, by notification in the Official Gazette, make rules to carry out the purposes of this Act: Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government is required to make rules and where any such model rules have been framed in respect of any such matter, they shall apply to the State mutatis mutandis until the rules in respect of that matter are made by the State Government and while making any such rules, they conform to such model rules.” 20. Related to the above Central Government has framed model rules which is stated in chapter 5 of the JJ Act model Rules 2016 which deals with the procedure in relation of the child in need of care and protection. 21. At this stage we may quote Section 19 of the Juvenile Justice (Care and Protection of Child) Act. Section 19 deals with procedure for enquiry. “(i). The Committee shall enquire into the circumstances under which the child is produced and accordingly declared such child to be a child in need of care and protection. (ii). The Committee shall prima facie determines the age of child in order to ascertain its jurisdiction pending further enquiry as per Section 94 of the Act, if need be. (iii). When the child is brought before the Committee, the Committee shall assign the case to a social worker or case worker or a child welfare officer or to any recognized non-Governmental organisation for conducting social investigation under sub section 2 of section 36 of the Act through an order. (iv). xxxxx (v). The inquiry shall satisfy the basic principles of natural justice and shall ensure the informed participation of the child and parent or guardian. The child shall be given an opportunity to be heard and his opinion shall be taken into consideration with due regard to his age and level of maturity. The orders of the committee shall be in writing and contained reasons.” 22. No we shall discuss whether the Child Welfare Committee has power to restore the child. The child shall be given an opportunity to be heard and his opinion shall be taken into consideration with due regard to his age and level of maturity. The orders of the committee shall be in writing and contained reasons.” 22. No we shall discuss whether the Child Welfare Committee has power to restore the child. In this connection we shall quote Section 40 of the JJ Act. Section 40 is dealt with restriction of child in need of care and protection and Section 43(3) says that the committee shall have the powers to restore any child in need of care and protection to his parents, guardian or fit person, as the case may be, after determining the suitability of the parents or guardian or fit person to take care of the child and give them suitable directions. Section 40 explanation says that for the purposes of the section “restoration and protection of a child” means restoration to; (a) Parents (b) Adoptive parents (c) Foster parents (d) Guardian (e) Fit person 23. The learned counsel for the petitioner has cited the ruling in Krishna Kumar V. State of Kerala [ 2018 (3) KHC 485 ], whereby the Division Bench of this Court has highlighted the need for adhering to the fundamental principles mentioned under Section 3 of the Act while taking a decision regarding the care and custody of the child. It was further directed that the Committee shall pay special attention to the principles mentioned above and also hear the child and interact with him before passing any Order. 24. In this connection, we have gone through the order passed by the Child Welfare Committee and found that nowhere it is stated that they have given a chance to interact with the child, except by recording her statement and had not given any special attention especially about her wishes. Section 3 of the JJ Act emphasises that victim as well as her relatives should be heard before taking a decisions. From the records it is quite clear that respondents have violated the mandates as prescribed under Section 3 of the JJ Act. Considering the above, we are of the opinion that the respondents have completely ignored the dictum laid down under Section 3 of the Act. 25. From the records it is quite clear that respondents have violated the mandates as prescribed under Section 3 of the JJ Act. Considering the above, we are of the opinion that the respondents have completely ignored the dictum laid down under Section 3 of the Act. 25. Virtually the inquiry contemplated under Section 36 of the Act was not conducted in the presence of the father and mother of the child. It has also come out that the mother and other family members were permitted to see the child. The Committee has not recorded the statement of the revision petitioner and on going through the impugned order, it would reveal that practically, no inquiry was conducted as contemplated under the Juvenile Justice Act and Rules. Nowhere it is stated that they have given option of the child regarding the residence of choice was obtained and considered. The child attained the age of 15 years and her wishes should have been given due consideration and the impugned order does not state that they have considered the opinion of the victim child. Further it is stated in paragraph 7 of the impugned order that the revision petitioner is staying alone in the house and that the accused, who had alleged to have sexually abused the minor child, was a frequent visitor of the house. In fact, according to the revision petitioner, she is having the company of her mother-in-law and close relatives live as a joint family within 20 meters of their residence. Apart from that, the younger brother of the revision petitioner's husband was a committee member of the mosque in which the accused was an imam. Under that circumstances, the imam was a frequent visitor of her house. 26. So, naturally relative never expected such incident from Imam. Further the incident was occurred outside the residence, so apprehension of respondents that she is unsafe at home could be accepted. In conclusion it is proved fact that the inquiry as contemplated under Section 36 of the Act was not conducted in the presence of the mother or other family members of the victim. The statement of the revision petitioner was not seen taken as per the record. It is true that the statement of the victim child was recorded by the Child Welfare Committee. The statement of the revision petitioner was not seen taken as per the record. It is true that the statement of the victim child was recorded by the Child Welfare Committee. The main ground for keeping the child under the custody of the Child Welfare Committee is that she requires treatment and counselling and if she will be given to the custody of the mother, definitely there is a chance for endangering the life of the victim as the accused was frequent visitor of the victim. It is very important to note that when the child needs the care and protection before putting the child in Children Home, there should be application of mind by the committee and the committee shall take into account the investigation report of the Child Welfare Committee as well as the child wishes. On a reading of Section 37 of the Act read with Section 3 of the Act, it is crystal clear that the Child Welfare Committee has to consider the wishes of the child also. The child is about 15 years old and her wishes should have been given due consideration. Of course, the Child Welfare Committee has taken such a decision to keep her in the Children Home for the reasons as aforesaid and the committee is justified in passing such an order to put the child in Children Home even against her wishes and rejecting the request of her family members on her custody. 27. The grievance on the part of the revision petitioner is that the victim was forcefully taken by the District Child Welfare Officer with the help of child line and Police and that too against the wishes of the child and family members. The mother (revision petitioner), grandmother and father's brothers were present before the Court and they expressed their interest to take back the child and keep under their care and protection. The child also wishes the same. The child also revealed that without her mother, she could not able to live peacefully and she is found to be undergoing mental stress due to stationing her at shelter home. 28. In view of the facts of the cases and considering the interaction with the child as well as the family members, we find that the decision which was taken by the Child Welfare Committee is not in accordance with law. 28. In view of the facts of the cases and considering the interaction with the child as well as the family members, we find that the decision which was taken by the Child Welfare Committee is not in accordance with law. While considering the custody applications when the victim is stationed in Children Home which comes under Section 40 of the Act. Then the Welfare Committee shall evaluate the suitability of the person to whom the custody is to be given guided by the fundamental principle envisaged under Section 3 of the Act. The child Welfare Committee has not considered it under Section 40 of the Act and no inquiry was conducted under Section 36 of the Juvenile Justice Act. The main argument was that she is stationed in the Children Home since her life is not safe at home. The ground which was stated that there is possibility of access of the accused to the victim. But it is not a ground to station the juvenile in the children home. It has come out that the victim is stationed at shelter home against her wishes. The committee should have given prime importance to the wishes of the child. 29. The impugned order does not show that the opinion and wishes of the victim child was considered by the Committee in this case. At present, her opinion/desire is to go along with the petitioner and we have considered the matter in detail on the basis of the fundamental principles as envisaged Section 3 of the Act. Moreover, the petitioner was staying along with her mother with the company of the other family members before she was removed to the Children Home. Hence the victim child is at present undergoing mental stress and she was suddenly removed from her family atmosphere. 30. Considering all these aspects, we have a considered opinion that there is no harm in releasing her to the custody of her mother and other family members, so that they can safe guard her interest and protect her life and also relax mental stress as she is suddenly removed from her family. 30. Considering all these aspects, we have a considered opinion that there is no harm in releasing her to the custody of her mother and other family members, so that they can safe guard her interest and protect her life and also relax mental stress as she is suddenly removed from her family. Considering all these aspects, we have a considered opinion that the revision petition is to be allowed by giving direction to the Child Welfare Committee to release the victim child to the petitioner, who is her mother, forthwith It is also directed that she will be under the supervision of District Welfare Officer, Thiruvananthapuram. 31. In the result revision petition is allowed and order of the Child Welfare Committee is set aside. The Superintendent of the child Shelter Home is directed to release the child forthwith to the mother, who is the revision petitioner herein. It is directed that victim child be under the supervision of District Welfare Officer, Thiruvanathapuram.