FACT OF THE CASE
The petitioner, the mother of the minor child aged 9 months on the date of the impugned order passed by the Child Welfare Committee (CWC), District South bearing seeks the setting aside of the said impugned order. Vide this order, the CWC observed that considering the best interest of the child who was just nine months old, the Committee decided to give permission to the father of the child to have access to the child to meet his child for two hours during the day time with mutual convenience of both parents at the residence of the mother.
It had been submitted on behalf of the petitioner that there are litigations pending between the petitioner and the respondent no.2 i.e. the mother and the father of the minor child in question in relation to the proceedings under the Domestic Violence Act pending before the Family Court in the petition under Section 125 of the Cr.PC, 1973 as filed by the petitioner herein against the respondent no.2 and that there have been mediation proceedings entered into between the petitioner and the respondent no.2 and that the impugned order is dehors the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and in violation of the Guardians and Wards Act, 1890 and in violation of the Hindu Minority & Guardianship Act, 1956 as well and that the CWC had no jurisdiction whatsoever to pass the impugned order.
PROCEEDINGS
The father of the minor child filed an application under Section 2 (14) (iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 to restore the basic right of the child under Article 9 of the United Nation Convention on the Rights of the Child (UNCRC) which provides that in the event of separation of parents, children have the right to live with their parents unless it is bad for them and the children whose parents do not live together have the right to stay in contact with both parents, unless this might hurt the child which convention has been ratified by India on 11th December 1992.
Section 2 (14) (iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015
Section 2(14): “child in need of care and protection” means a child—
(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child or not) and such person—
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
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- (iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or
- (v) who has a parent or guardian 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
- (vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or
- (vii) who is missing or runaway child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or
- (viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or
- (ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
- (x) who is being or is likely to be abused for unconscionable gains; or
- (xi) who is a victim of or affected by armed conflict, civil unrest or natural calamity; or
- (xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;
- Vide the impugned order, it is indicated that the CWC interacted with both parents and conducted an enquiry when father of the child had moved an application through a child right activist that the child was being denied love, care and protection of his biological father by the biological mother, the child was, however, not produced by the petitioner herein stating that the child was unwell. The CWC is indicated to have considered the details passed the impugned order.
ISSUE
The grievance of the petitioner is to the effect that the impugned order of the CWC is contrary to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and is beyond the jurisdiction of the CWC. The terms and provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 have been misunderstood by the CWC and that the CWC does not have the authority to ignore and traverse the provisions of neither the Hindu Minority & Guardianship Act, 1956 nor of the Hindu Marriage Act, 1955 nor of the Guardians and Wards Act, 1890.
DECISION & DISCUSSION
- It is essential to observe that in terms of Section 2 (23) of the Juvenile Justice Act provides:
Section 2 (23) “court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”
- Section 7 of the Family Courts Act, 1984 provides for the jurisdiction conferred on a Family Court and spells to the effect:
“7. (1) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.–The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:–
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise–
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.”
In terms of Section 7(1) of the Family Courts Act, 1984, taking the same into account and the aspect that there is litigation pending in the Family Court between the mother of the minor child and the father of the minor child it is apparent that jurisdiction to grant permission or access to the respondent no.2 to the minor child in the circumstances of the instant case is vested with the Family Court concerned alone.
- Article 9(1) of the UNCRC which reads to the effect:
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
also makes it apparent that it cannot be read in isolation and cannot be read in disregard of the domestic law.
- It can safely be concluded that under the provisions of Juvenile Justice(Care and Protection of Children) Act, 2015 and Juvenile Justice (Care and Protection of Children) Rules, 2016, Child Welfare Committee does not confer power to give custody of a child taking it from mother and give to the father in the manner as done by the CWC, Indore in the present case.
- A note of caution is to be taken by the Court that such power should not be exercised by the other CWC functioning in the State of M.P. The aforesaid note of caution fortifies from the fact that the members appointed by the State Government either Chairman or Members may not possess legal education, not having acquaintance with the law and they are also not well versed with the provisions of law, however, it is necessary to bring to the notice of all the CWC, that what powers are required to be exercised by them.
In this respect, it is directed that they may exercise the powers within the ambit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Rules framed therein and not beyond the same.
- Whereby it is clear that High Court was conscious enough that said convention ought to be followed by the competent court of law to which the power has been conferred to declare guardian, therefore said the convention is required to be observed by those Courts or Forums having competence conferred to them under the law. Under the Act of 2015 and the Rules framed thereunder, CWC is not conferred with a power to give the custody of the child.
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It is apparent thus that in terms of provisions of the Guardians and Wards Act, 1890 powers are conferred on the Court of competent jurisdiction to decide the aspects of guardianship, visitation and access to a minor child and as observed elsewhere hereinabove, in the circumstances of the instant case where there is litigation pending between the parties before the Family Courts, Delhi, the respondent no.2 could not have resorted to a mode to detract from the adjudication qua the rights of access to the minor child, which are to be made by a Court of law.
- What is supposed to be done by the committee has been specified under the Act as well as the in the Rules? Thus the primary function of the committee starts when a child is produced before them or otherwise in case any intimation has been received by the CWC, on verification by the Protection Officer or Probationary Officer or by own visit, after passing the order by all three members. Thus the powers as conferred under the Act and the Rules to initiate the proceedings and to pass the order have been specified under section 37 and the power can be exercised to the extent as indicated. No other power can be exercised by the members of the CWC with respect to a child who is not in conflict with law and in need of care and protection, not brought before them.
Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides to the effect:
“31. (1) Any child in need of care and protection may be produced before the Committee by any of the following persons, namely:–(i) any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer of District Child Protection Unit or an inspector appointed under any labour law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non- governmental organisation or any agency as may be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public-spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing home, hospital or maternity home:
Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.
(2) The State Government may make rules consistent with this Act, to provide for the manner of submitting the report to the Committee and the manner of sending and entrusting the child to childrens home or fit facility or fit person, as the case may be, during the period of the inquiry.
Section 37 of the Juvenile Justice (Care and Protection of Children) Act, 2015, provides to the effect:
“37. (1) The Committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders, namely:–
(a) a declaration that a child is in need of care and protection;
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker;
(c) placement of the child in Children’s Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child;
(d) placement of the child with fit person for long term or temporary care;
(e) foster care orders under section 44;
(f) sponsorship orders under section 45;
(g) directions to persons or institutions or facilities in whose care the child is placed, regarding care, protection and rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention, psychiatric and psychological support including need- based counselling, occupational therapy or behaviour modification therapy, skill training, legal aid, educational services, and other developmental activities, as required, as well as follow-up and coordination with the District Child Protection Unit or State Government and other agencies;
(h) declaration that the child is legally free for adoption under section 38.
(2) The Committee may also pass orders for–
(i) declaration of fit persons for foster care;
(ii) getting after care support under section 46 of the Act; or
(iii) any other order related to any other function as may be prescribed.”
The following para is reproduced from the judgment.
28. The verdict of the Hon’ble High Court of Madhya Pradesh in Priya Yadav Vs. State of M.P. & Others. 2017 (2) MPLJ 404 is on facts pari materia to the instant case.
29. It is apparent as has been observed by the Hon’ble High Court of Madhya Pradesh in the aforesaid verdict vide paras 8, 9, 10, 11, 12, 13, 14 & 15 which read to the effect:-
“8. Bare reading of the aforesaid, it is apparent that Police Officer or Special Juvenile Police Unit or designated Child Welfare Officer or any officer of the District Child Protection Unit or Inspector appointed under Labour Law, any public servant, childline service or any voluntary or non-voluntary Governmental organisation or any agency recognized by the Government, Child Welfare Officer or Probation Officer, Social Worker, Public Spirited Citizen, Nurse, Doctor, Management of Nursing Homes, Hospital and Maternity Home may bring the child in need of care and protection before the CWC or otherwise the child himself may remain present asking relief as conferred to the Committee. In the said provision, no space has been provided to take action by the CWC on an application submitted by the husband against a wife to produce the child who are litigating in the Court of law.
10. Section 37 is relevant which clarifies what type of orders can be passed by the CWC with respect to the child in need of care and protection, hence it is reproduced as under:
(1) The committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view; pass one or more of the following orders, namely–
(a) declaration that a child is in need of care and protection;
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker;
(c) placement of the child in Children’s Home or fit facility or Specialized Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child;
(d) placement of the child with fit person for long term or temporary care;
(e) foster care orders under section 44;
(f) sponsorship orders under section 45;
(g) directions to persons or Institutions or facilities in whose care the child is placed regarding care, protection and rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention; psychiatric and psychological support including need-based counselling, occupational therapy or behavior modification therapy, skill training, legal aid, educational services and other developmental activities, as required, as well as follow-up and coordination with the District Child Protection Unit or State Government and other agencies;
(h) declaration that the child is legally free for adoption under section 38.
(2) The Committee may also pass orders for–
(i) declaration of fit persons for foster care;
(ii) getting after care support under section 46 of the Act; or
(iii) any other order related to any other function as may be prescribed. Any other function as may prescribed.
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- …………Thus primary function of the committee starts when child is produced before them or otherwise in case any intimation has been received by the CWC, on verification by the Protection Officer or Probationary Officer or by own visit, after passing the order by all three members. Thus the powers as conferred under the Act and the Rules to initiate the proceedings and to pass the order have been specified under section 37 and the power can be exercised to the extent as indicated. No other power can be exercised by the members of the CWC with respect to a child who is not in conflict with law and in need of care and protection, not brought before them.
- In the context of the aforesaid legal position, arguments advanced by the counsel for the respondent referring the provisions of Commission for Protection of Child Rights Act, 2005 and as per United Nations Conventions is required to be adverted. Counsel referring the said convention urged that Madhya Pradesh High Court vide order dated 20.3.2014 has accepted the applicability of those conventions but on perusal of the order, it is apparent that Chief Justice of the Madhya Pradesh High Court has directed for circulation of the ‘Child Access and Custody Guidelines and pertaining Plan for guidance, among the Additional District Judges, Family Court Judges and marriage counselors in the State of Madhya Pradesh. Whereby it is clear that High Court was conscious enough that said convention ought to be followed by the competent court of law to which the power has been conferred to declare guardian, therefore said convention is required to be observed by those Courts or Forums having competence conferred to them under the law. Under the Act of 2015 and the Rules framed thereunder, CWC is not conferred with a power to give the custody of the child. It is a case wherein due to dispute in between the husband and wife, proceedings are pending between them, however CWC, Indore cannot direct visitation right to meet the child either to husband or to wife in the facts of the case. In the said context the provisions of the Guardians and Wards Act, 1890 are relevant whereby as per section 7, the court may make an order as to guardianship on submitting an application by a person as specified in section 8 before the competent Court having jurisdiction to entertain such an application in a form as prescribed. As per section 7 the Court may have power to decide who would be the guardian of the child. Similarly in the Family Courts Act, as per section 7(1)(b), explanation (g) the proceedings may be brought before the Family Court in a suit or proceeding asking guardianship of the child or the custody or access to any minor.
14. In view of the discussions made hereinabove, it can safely be concluded that under the provisions of Juvenile Justice(Care and Protection of Children) Act, 2015 and Juvenile Justice (Care and Protection of Children) Rules, 2016, Child Welfare Committee does not confer power to give custody of a child taking it from mother and give to the father in the manner as done by the CWC, Indore in the present case. It is seen that CWC, Indore is passing orders granting custody of the children and one of such order has been brought to the notice of this Court dated 25.5.2015. In the said case also the proceedings were pending before the Family Court for custody of the child but CWC usurp the jurisdiction and during the pendency of those proceedings directed custody of the child to the mother. Similar is the position in the present case wherein also as per Annexure P-2, an application for custody of the child has also been filed before the Family Court but during the pendency of the said application, respondent No. 5 applied to the CWC whereon the order of the visitation right has been passed directing to bring the child in the office of CWC, Indore on every Friday between 10:00 a.m. to 5:00 p.m. to the petitioner. In my considered opinion the aforesaid exercise of powers by the CWC, Indore is not in conformity with the Act and the Rules and also contrary to the powers conferred under the other law applicable for the time being in force, therefore the order impugned is set aside.
15. As per the discussions made hereinabove, a note of caution is to be taken by the Court that such power should not be exercised by the other CWC functioning in the State of M.P. The aforesaid note of caution fortifies from the fact that the members appointed by the State Government either Chairman or Members may not possess legal education, not having acquaintance with law and they are also not well versed with the provisions of law, however it is necessary to bring to the notice of all the CWC, that what powers are required to be exercised by them. In this respect it is directed that they may exercise the powers within the ambit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Rules framed therein and not beyond the same. It is directed that custody of child cannot be given by them in the facts discussed above, therefore the order passed today by this Court is required to be circulated to all the CWC of the State of M.P. directing them that visitation right or custody as guardian should not be invoked by them assuming the jurisdiction in this regard.” (Emphasis supplied) which also persuades this Court to hold that no power other than that conferred on the Child Welfare Committee in terms of Section 37 of the Juvenile Justice (Care and Protection of Children) Act, 2015 can be exercised by it which powers can also be exercised only to the extent as indicated thereby.
CONCLUSION
It is apparent thus that in view of the constitution of the Family Courts in Delhi, the provisions of Section 7 (i)(a)(g) r/w Section 20 of the said enactment makes it apparent that jurisdiction in relation to the proceedings qua the custody or access to any minor has essentially to be determined by the Family Court and cannot fall within domain of the Child Welfare Committee in terms of Section 2(14)(iii) of the Juvenile Justice (Care and Protection of Children), Act, 2015, especially when there are proceedings pending before the Family Court between the parents of the minor child.
PERI MATERIA: It is a doctrine in statutory construction that statutes that are in pari materia must be construed together.
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