Calcutta High Court (Appellete Side)
Tasleema Begum vs The State Of West Bengal & Ors on 4 January, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
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6 04.01. W.P. No.19557(W) of 2017
ns 2018
Tasleema Begum.
Versus
The State of West Bengal & Ors.
Mr. Nilanjan Bhattacharjee,
Ms. Paramita Roy,
Mr. Arpan Guha ... for the petitioner.
Mr. Sukanta Chakraborty ... for the State.
Mr. Achin Jana,
Mr. Suman Chakraborty ... for respondent no.4.
Re: CAN No.11563 of 2017 This is an application made by the respondent no.4 praying for vacating the interim order dated August 3, 2017 and September 14, 2017.
In view of the nature of relief sought for in this application, it would be appropriate to take up the main writ petition for consideration.
Re: CAN No.12139 of 2017
This is an application made by the petitioner for extension of two interim orders granted.
Again in view of the nature of the application, it 2 would be appropriate to take up the main writ petition for consideration.
By consent of the parties, WP No.19557(W) of 2017 is treated as on the day's list and is taken up for consideration.
Learned Advocate appearing for the petitioner submits that, the petitioner is the maternal grandmother of two minor children. The Child Welfare Committee has passed orders asking for production of the children before it in order to decide the guardianship of the children. The Child Welfare Committee has no jurisdiction to do so. It is essentially trying to decide the guardianship of the children when it does not have such jurisdiction. He relies Section 2(14), 29 and 40 of the Juvenile Justice (Care and Protection of Children) Act, 2015 as well as a decision of the Madhya Pradesh High Court reported in 2017 (2) M.P.L.J. 404 ( Priya Yadav Versus The State of Madhya Pradesh & Ors.) in support of the contention that, the Child Welfare Committee does not have jurisdiction to decide the custody of the children.
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Learned Advocate appearing for the private respondent submits that, the Child Welfare Committee is entitled to consider the welfare of the children in terms of Section 40 of the Act of 2015.
The State is represented.
It appears that, the Child Welfare Committee is in seisin of proceedings considering the welfare of the children involved. It has passed various orders. One of which is impugned in the present writ petition. Subsequent to the filing of the writ petition and the interim order passed therein, the Child Welfare Committee has taken up the proceeding for consideration. By an order dated October 10, 2017, the two minor children were produced before the Child Welfare Committee by the petitioner. The Child Welfare Committee has found both the children in good mental and physical condition. The petitioner was directed to make arrangement to produce the children on the next date. It is submitted on behalf of the petitioner that, the Child Welfare Committee did not convene on November 16, 2017, although the petitioner had taken the two children to be produced on such date.
The Act of 2015 has come into being to 4 consolidate and amend the law relating to children alleged and found to be in conflict with law and for children in need of care and protection. The endeavour is to provide proper care, protection, development, treatment, social re-integration by adopting a child friendly approach and adjudication keeping the best interest of the children and their rehabilitation as paramount.
In the present case, two minor female children are involved. The Child Welfare Committee is in seisin of a proceeding which is looking at the welfare of the two children.
Section 2(14) defines a child in need of care and protection. The Child Welfare Committee assumes jurisdiction upon a child when the conditions precedent for a child to be considered in need of care and protection are fulfilled. No material is placed on record to suggest that, the conditions precedent for the Child Welfare Committee to assume jurisdiction over the two minor female children involved does not exist in the facts of the present case.
Section 29 of the Act of 2015 bestows various powers on the Child Welfare Committee. Section 40 of the 5 Act of 2015 allows the Child Welfare Committee to restore a child in need of care and protection to the custody of the parents, guardians or fit person, as the case may be, after determining the suitability of the parents or guardians or fit person to take care of the child and issue suitable directions with regard thereto.
Section 40 of the Act of 2015 cannot be read to mean that, the Child Welfare Committee has the jurisdiction to decide upon a person who is fit to be considered as the guardian of such child for the time till the child attains the age when the child is considered to be a major. It can restore the custody of the child to the parents or the guardians or a fit person that it deems proper in the facts of a given case. The issue as to who is the guardian of the children involved has to be decided by an appropriate forum.
In the present case, there is a lis pending for the custody of the children before the District Judge. Such proceedings, however, will decide the person who will be treated as a guardian of the children concerned. The Child Welfare Committee can in the interregnum provide for the welfare of the children. 6
Priya Yadav (supra) is of the view that, the Act of 2015 read with the Juvenile Justice (Care and Protection of Children) Rules, 2016 does not confer power to give custody of a child taking it from the mother and giving it to the father in the facts of that case.
With the aforesaid observations, CAN No.11563 of 2017, CAN No.12139 of 2017 and WP No.19557(W) of 2017 are disposed of.
No order as to costs.
In the facts of the present case, it would be appropriate to request the Child Welfare Committee to dispose of the proceedings as expeditiously as possible.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Debangsu Basak, J. )