Kerala High Court
Jayan K.S vs Manju S on 29 March, 2021
Author: Kauser Edappagath
Bench: A.Muhamed Mustaque, Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
OP (FC).No.130 OF 2020
AGAINST THE ORDER IN IA NO.2237/2019 IN OP NO.596/2016 DATED 12-
12-2019 OF FAMILY COURT, PATHANAMTHITTA
PETITIONER:
JAYAN K.S.
AGED 36 YEARS
S/O. SANAKRAPILLAI, IRAVAN MURI, IRAVON VILLAGE,
NOW RESIDING AT AMPADIYIL VEEDU, PARAKARA MURI,
PANDALAM THEKKEKARA VILLAGE,
PATHANAMTHITTA VILLAGE-691 525.
BY ADV. SRI.G.UNNIKRISHNAN
RESPONDENT:
MANJU S.
AGED 38 YEARS
D/O. SIVAN PILLAI, THURUTHIYIL ARUKALIKKAL (WEST)
ADOOR P.O., ADOOR TALUK-691 523.
R1 BY ADV. SRI.MANU RAMACHANDRAN
R1 BY ADV. SRI.M.KIRANLAL
R1 BY ADV. SRI.T.S.SARATH
R1 BY ADV. SRI.R.RAJESH (VARKALA)
R1 BY ADV. SHRI.SAMEER M NAIR
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22-03-
2021, THE COURT ON 29-03-2021 DELIVERED THE FOLLOWING:
OP(FC) No.130/2020
-:2:-
"C.R."
J U D G M E N T
Dated this the 29th day of March, 2021 Dr.Kauser Edappagath, J.
The challenge in this original petition is against Ext. P7 order passed by the Family Court, Pathanamthitta dismissing an application filed by the petitioner in OP No.596/2016 to get the certified copy of the reports and documents produced by the Chairman, Child Welfare Committee, Pathanamthitta (hereinafter referred to as CWC).
2. The petitioner and the respondent are husband and wife. Their marriage was solemnized on 10/5/2015. They have no issues in the wedlock. For both of them, it was their second marriage. The petitioner has two sons aged 12 and 8 years in his first marriage. The respondent is also having a son aged 12 years in her first marriage.
3. The original petition has been filed by the petitioner for divorce on the ground of cruelty. The petitioner and the respondent along with their respective children were residing OP(FC) No.130/2020 -:3:- together. It is alleged that the respondent physically assaulted the children of the petitioner, they were put to starvation and discriminated with her child. The petitioner specifically alleged that when his younger son suffered assault at the hands of the respondent, he was forced to report the matter to CWC on 28/7/2016 and proceedings were initiated against the respondent. The Child Welfare Committee has reported the matter to the Kodumon Police Station. During the course of trial before the Court below, the petitioner summoned the Chairperson of the CWC to prove the above matter and he was examined as PW2. The Chairperson has also produced the complete file regarding the above matter, which was marked as Ext. X1. The contents of the file marked as Ext. X1 were not revealed to both counsel. The petitioner filed IA No.2237/2019 before the Court below invoking S.99(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'JJ Act') r/w Rule 239(2) of the Civil Rules of Practice, Kerala to get the certified copy of Ext.X1 file. The Court below dismissed the said petition as per Ext.P7 order. The said order is under challenge in this original petition.
4. Heard both sides.
OP(FC) No.130/2020-:4:-
5. It is not in dispute that when the younger son of the petitioner allegedly suffered assault at the hands of the respondent, he reported the matter to CWC on 28/7/2016 and proceedings were initiated against the respondent. It is also evident from the record that the Child Welfare Committee has reported the matter to the Kodumon Police Station. Ext.P3 would show that on 3/6/2017, the petitioner filed an application before CWC under the Right to Information Act to get the copy of the proceedings so as to produce the same before the Family Court. Ext. P4 is the reply sent by CWC. But, it does not contain the details of the proceedings before them. During the course of the trial, the Chairperson of CWC was summoned with a direction to produce the complete file regarding the proceedings initiated against the respondent on the basis of the complaint preferred by the petitioner stated above and to give oral evidence. The said file was produced and marked as Ext. X1. The Chairperson of CWC was examined as PW2.
6. The petitioner was denied access to Ext. X1 file by the Court below on the ground of confidentiality. It is true that JJ Act clearly state that juveniles are covered by a confidentiality clause OP(FC) No.130/2020 -:5:- whereby their identity is not disclosed. As per the Scheme of the Act, every child who is in conflict with law or who needs care and protection shall have a right of protection of his privacy and confidentiality. Section 99 of the JJ Act deals with confidentiality of reports related to the child. Sub-section (1) of Section 99 provides that all reports related to the child and considered by the Child Welfare Committee or the Board shall be treated as confidential. Sub-clause (1) of S.99 is subject to proviso therein and sub-clause (2). As per the proviso, the Committee or the Board may, if it so thinks fit, communicate the substance in the report to another Committee or Board or to the child or to the child's parent or guardian, and may give such Committee or the Board or the child or parent or guardian, an opportunity of producing evidence as may be relevant to the matter stated in the report. Sub-clause (2) provides that despite anything contained in the Act, the victim shall not be denied access to their case record, orders and relevant papers.
7. Ext.X1 file produced before the Family Court may contain the necessary details and evidence regarding the assault allegedly meted out by the respondent to the minor child of the OP(FC) No.130/2020 -:6:- petitioner. One of the main grounds of cruelty raised in the original petition for divorce filed by the petitioner is the cruelty on the part of the respondent to the children of the petitioner. The Chairperson of CWC while examined as PW2, deposed that what has been stated in Ext. X1 is true. Thus, the contents in Ext. X1 may be relevant to prove the allegation of cruelty canvassed by the petitioner in his petition for dissolution of marriage. The Court shall not preclude a party from adducing any evidence which may be relevant to prove his case. Unless and until the petitioner is given an opportunity to peruse the contents of Ext. X1, he may not be able to take steps to prove the same. Mere production of Ext. X1 file is not sufficient to prove its contents. Of course, while considering the question whether the petitioner can be permitted to have access to Ext. X1 file, the protection of privacy and confidentiality extended to the child by the JJ Act has also to be taken into consideration.
8. The confidentiality related to the reports of the Child Welfare Committee or Board stated in Section 99(1) of the JJ Act is not absolute. The Committee or the Board has the power to communicate the substance of the report to the child or child's OP(FC) No.130/2020 -:7:- parent or guardian, if it so thinks fit. The parent or guardian who has the right to protect the interest of the minor has every right to at least know the contents of the report especially when the said report relates to the safety and well being of the child. When such a report is called for before a court of law in a dispute related to the parent or guardian of the child or involving the interest of the minor, the access to the contents of the report cannot be denied to parent or guardian of the minor relying on the confidentiality clause under Section 99(1) of the JJ Act, especially in a case where the contents of the report are relevant for adjudication of the said report.
9. The petitioner is none other than the natural guardian of the child. As stated already, the contents of the file may be relevant for adjudication of the dispute in the original petition filed by the petitioner against the respondent. Hence, the petitioner has every right to have access to the file. The Court below dismissed the petition holding that the petitioner would not fall within the expression 'victim' stated in sub-clause (2) of S.99. But, the Court below did not take into account proviso to the sub- clause (1) of S.99 at all which clearly says that the Committee or OP(FC) No.130/2020 -:8:- the Board, as the case may be, has the power to communicate the substance of the report to the child or its parent or guardian, if it so thinks fit. In such circumstances, the Court has also power to permit the child's parent or guardian to peruse the report filed before the Court if the contents of the said report appear to be relevant for proper adjudication of the subject matter of the dispute before the Court. That apart, the meaning of the expression 'victim' found in sub-clause (2) of S.99 cannot be restricted to the term 'victim' defined under S.2(wa) of Cr.P.C. A parent or guardian of the child who suffered loss or injury caused by reason of the act or omission of the offender, would also be a victim. S.99(2) of the JJ Act does not mandate a situation whereby, to get the benefit of the said section, the respondent should be an accused in a case. Hence, going by sub-clause (2) of S.99 as well, the petitioner, who is the parent of the child, shall not be denied access to Ext. X1 file. For all these reasons, we hold that Ext. P7 order cannot be legally sustained and is liable to be set aside. The prayer in IA No.2237/2019 is to get the certified copy of Ext. X1 file. The original of Ext. X1 file is already before the Board. Hence, the certified copy need not be issued to the OP(FC) No.130/2020 -:9:- petitioner so that the confidentiality of the same can be assured. At the same time, the petitioner can be permitted to have access to it so as to peruse the contents therein.
In the result, the original petition is allowed. Ext. P7 is set aside. The Court below shall permit the petitioner or his counsel to peruse the contents of Ext. X1 file.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
DR. KAUSER EDAPPAGATH
Rp JUDGE
OP(FC) No.130/2020
-:10:-
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF O.P.(HMA) 596/2016 OF THE
FAMILY COURT PATHANAMTHITTA.
EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED IN
O.P.(HMA) 596/2016.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
3.6.17 FILED UNDER THE R.T.I. ACT
BEFORE THE CHILD WELFARE COMMITTEE.
EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN BY CHILD
WELFARE COMMITTEE DATED 17.6.17.
EXHIBIT P5 TRUE COPY OF THE DEPOSITION OF THE
CHAIRPERSON, CHILD WELFARE COMMITTEE,
PATHANAMTHITTA IN O.P(HMA)596/2016.
EXHIBIT P6 TRUE COPY OF I.A.2237/19 IN O.P.
(HMA)596/16 OF THE FAMILY COURT,
PATHANAMTHITTA.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 12.12.19
IN I.A.2237/19 IN O.P(HMA) 596/16 OF
THE FAMILY COURT PATHANAMTHITTA.