Allahabad High Court
Smt. Shivani Singh vs State Of U.P. Thru. District ... on 29 March, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Court No. - 18 Case :- WRIT - C No. - 4897 of 2022 Petitioner :- Smt. Shivani Singh Respondent :- State Of U.P. Thru. District Magistrate, Sultanpur And 4 Others Counsel for Petitioner :- In Person Counsel for Respondent :- C.S.C.,Divyarth Singh Chauhan,Meenakshi Singh Parihar Hon'ble Alok Mathur,J.
1. Heard the petitioner in person, Sri H. G. S. Parihar, Senior Advocate assisted by Sri Divyarth Singh for private respondents and learned Standing counsel for the State-respondents.
2. The petitioner, who is the mother of a minor girl child, has assailed the order dated 17/08/2021 passed by the Child Welfare Committee, Sultanpur whereby the custody of the minor has been handed over to her father-in-law, husband and sister-in-law and has also assailed the order dated 06/12/2021 passed by the appellate authority upholding the order of the Child Welfare Committee (hereinafter referred to as the Committee), and dismissing the appeal preferred by the petitioner.
3. The present controversy is an outcome of an embittered matrimonial relationship between the petitioner and her husband, respondent No. 4. The marriage between the petitioner and respondent No. 4 was solemnised on 21/01/2014 and out of the said wedlock a daughter was born on 30/10/2015. The petitioner and respondent No. 4 lived for 2 years at Sultanpur, where respondent No. 4 is running nursing schools, and sometimes in 2017 the petitioner along with minor daughter shifted to Lucknow, while respondent no.4 continued to live and work at Sultanpur visiting the petitioner and his daughter during the weekends. The minor child was admitted to a school at Lucknow and according to the petitioner the relationship between her and her husband as well as her in-laws was cordial prior to 25/08/2021, on which date the petitioner was directed to appear before the Committee, Sultanpur.
4. A complaint was made by respondent No. 3, father-in-law of the petitioner to the Committee, Sultanpur seeking custody of his grand daughter. He stating in his complaint that his granddaughter was born on 30/10/2015 at Lucknow. His son and daughter-in-law were living with him after their marriage, when after 2 years the petitioner pressurised her husband to shift to Lucknow to secure better education for the child and subsequently the petitioner and the minor child shifted to Lucknow. Number of allegations have been levelled in the said complaint against the petitioner for not looking after and neglecting the minor daughter. In support of the complaint CCTV images, certificates of various specialist in medical field were also submitted and accordingly prayed for interim custody of the minor child.
5. The Chairman of the Committee issued notices to the petitioner on 02/08/2021 to appear on 04/08/2021. On 04/08/2021 the District Probation Officer was directed to conduct counselling of the minor and submit his report. Again on 04/08/2021 notice was sent to the petitioner for appearance before the Committee on 06/08/2021. Another notice was sent on 06/08/2021 directing the petitioner to appear along with minor daughter on 11.08.2021. It was ordered that the notice be served on the petitioner through Smt Geeta Verma, the Counsellor. The order sheet of 12/08/2021 indicates that the Committee noted that service could not be affected upon the petitioner and hence she was telephonically informed to appear before the Committee on 13/08/2021 and again on 13/08/2021 she was directed to appear on 16/08.2021.
6. On 16/08/2021 the petitioner along with the minor child appeared before the Committee, where according to the order sheet the petitioner refused to sign on the statement made by her, and the entire proceedings were concluded on 16/08/2021 itself, and the matter was reserved for orders, which was delivered on 17/08/2021.
7. The Committee by means of impugned order dated 17/08/2021 accepted and allowed the complaint made by respondent no.3 and returned a finding that the petitioner is a victim of mental illness due to which she becomes violent. Even the adjournments sought by her before the Committee were attributed to her mental illness. The petitioner denied the medical reports submitted by her father-in-law as the same at been prepared under his influence as he had retired as Director General Medical and Health. The Committee also relied upon an article published in a local newspaper on 06/07/2021 with regard to "Paranoid Personality Disorder" and concluded that the petitioner also is suffering from the same disorder due to which she can become violent and such persons do not accept their fault.
8. In the impugned order the Committee has also held that the petitioner is suffering from "Fbing" which according to them is a disease where a person uses his phone excessively and consequently held that due to "Fbing" she neglects her minor daughter.
9. The Committee considered the fact that the complainant, who is father-in-law of the petitioner, retired from a very high post of Director General, Medical and Health Services, Uttar Pradesh and is financially capable of looking after the minor child. Though he is 78 years old and therefore for looking after the minor he will be supported by his son, respondent No. 4 and his daughter Ruchi Singh - respondent No. 5, who is living with her husband in NOIDA, gave an undertaking that they will look after the minor child effectively and accordingly the custody of the minor child was taken away from the petitioner and given to respondent no. 3, 4 and 5.
10. The petitioner being aggrieved by the order of the Committee, Sultanpur dated 17/08/2021 preferred an appeal before the District Magistrate, Sultanpur specially on the ground that the Committee had in the most illegal and arbitrary manner without giving any opportunity of hearing to the petitioner decided the matter of custody of her minor daughter and no procedure was followed apart from the fact that she was never given the copy of the complaint, nor was he supplied any documents which were relied upon by the complainant before the committee. She further submitted that she was never given any opportunity to defend herself, which is evident from the fact that even some statement was not signed by her, and entire proceedings were concluded in extremely hurried manner on 16/08/2021 itself. She denied that Councillor Geeta Verma had ever met her, and no document was examined by the Committee which would indicate that she was mentally unstable and unable to look after her daughter.
11. The petitioner being aggrieved with the order of Committee preferred an appeal before the District Magistrate, who has dismissed the appeal vide order dated 06.12.2021. The District Magistrate has admitted that the order of the Committee does not refer to any CCTV footage, but proceeded to take on record himself additional evidence holding that under the Civil Procedure Code as well as under the Criminal Procedure Code there was expressed provision of taking additional evidence at the appellate stage, and considering himself to be clothed with all the powers and authority of "appellate court" proceeded to examine the additional evidence placed by the respondents and only on the basis of the additional evidence came to conclusion that the petitioner was suffering from mental illness and was also subjecting the minor child with physical assault and abuse. The District Magistrate rejected the arguments of the petitioner that respondent no.3 was responsible for divorce of his elder son, and that respondent no.4, her husband was addicted to liquor and a drunkard and hence custody her minor daughter could not be given to either of them, as no evidence was adduced be her in this regard. He also concluded that the petitioner was informed telephonically about the date fixed before the Committee and hence she was sufficiently served. On the basis of the material produced before him he was satisfied that the conditions exist where living of the minor child with mother may be harmful for the child and dismissed the appeal but granted her visiting rights.
12. The petitioner has assailed the impugned orders passed by the Committee as well as the appellate order passed by the District Magistrate on the ground that the Committee has exceeded its jurisdiction in taking the custody away from the natural mother and handing it over to his grandfather was not the natural guardian of the minor child. It was submitted that in case the respondents wanted the custody of the minor child then the appropriate forum is only under the provisions of Family Courts Act, Hindu Minority and Guardianship Act, or under the provisions of the Guardians and Wards act 1890, before the appropriate Court and not before the Committee under the juvenile Justice act. It was submitted that the entire proceedings are without jurisdiction and liable to be set aside as such.
13. Sri H. G. S. Parihar, Senior Advocate appearing for the respondents, on the other hand, has vehemently opposed the writ petition. He supported the impugned orders passed by the Committee as well as the District Magistrate and submitted that the Committee had exercised the jurisdiction vested in it. It was submitted that various CCTV footages and other documentary evidence was available and submitted before the appellate authority and after proper examination of the same, concluded that the minor was a "child in need of care and protection" as she was physically abused by her mother, who was also found to be suffering from mental illness.
14. A divorce petition filed by the respondent no.4 is pending before the Family Court, Lucknow being case no.2497of 2021 and also a criminal case has been lodged against the petitioner being FIR no.0499/2021 has been lodged against the petitioner under sections 323,504 and 506 IPC.
15. Sri H.G.S. Parihar, Senior Advocate has submitted that according to the definition of "child in need of care" as provided in section 2(14) Of the Juvenile Justice Act, 2015 the daughter of the petitioner would fall in definition in subclause (iii) therein as the petitioner is alleged to have injured, neglected the child. Once the child is declared to be a child in need of care, then the child is to produced before the committee as provided for in section 31 Juvenile Justice Act, and after enquiry conducted under section 36 of the act, custody can be given to a fit person. In the present case the report of councillor Smt Geeta Verma was sought for and only thereafter, order for custody has been passed in terms of section 37 for placing the child with her grandfather, father and Bua (aunt) who have been declared to be fit persons.
16. Considering the argument of the petitioner with regard to be jurisdiction of the Committee to consider and decide the aspect of the custody of minor child, specially removing the child from the custody of the mother, and handing the same to the grandfather, it is necessary to examine the statutory provisions as Provided for in the Juvenile Justice (Care and Protection of Children) act 2015.
17. Section 2(14)(iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides to the effect:
2. In this Act, unless the context otherwise requires- .....
.....
.....
(14) "child in need of care and protection" means a child--
(i)......
(ii).....
(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.
(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;"
18. It is essential to observe that in terms of Section 2(23) of the very same enactment provides to the effect:
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."
19. The petitioner has placed reliance on the provisions of Section 26 of the Hindu Marriage Act, 1955 which provides as follows:
"Section 26. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made."
20. Inter alia the petitioner places reliance on the provisions of Sections 6(a) & 13 of the Hindu Minority and Guardianship Act, 1956, which read to the effect:-
"Section 6. The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
and Section 13. (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."
21. The petitioner has also placed reliance on the provisions of Sections 12 & 25 of the Guardians and Wards Act, 1890, which reads to the effect:-
"12. (1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. (2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-
section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.
(3) Nothing in this section shall authorise--
(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or
(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.
25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."
22. Significantly, 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."
23. Section 20 in Chapter-6 of the Family Courts Act, 1984 provides to the effect:-
"20. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
24. It is apparent thus that in view of the Family Courts Act, the provisions of Section 7 (1)(a) and (g) read with 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 to be essentially determined by the Family Court and cannot fall within domain of the Committee in terms of Section 2(14)(iii) of the Juvenile Justice (Care and Protection of Children), Act, 2015.
25. Considering the aforesaid, it is noticed that the procedure in relation to children in need of care and protection is provided in Chapter VI of the Act. The procedure commences with Section 31 which deals with production of the child in need of care and protection before the Committee by any of the authorities specially mentioned therein which are police officer Special Juvenile Police Unit, Designated Child Welfare Police Officer, any Officer of the District Child Protection Unit, Inspector appointed under Labour law, any public officer, Childline services or any volunteer non-governmental organisation or any agency as recognised by the State government, Child Welfare Officer or Probation Officer, and the social worker or a public spirited citizen, by the child himself or any nurse, doctor or management of a nursing home, hospital or maternity home.
26. According to Section 36 of the Act enquiry is to be conducted by the committee on production of a child or receipt of a report under section 31. A conjoint reading of section 36 and section 31 would make it clear that the child firstly, has to be produced before the Committee by the authorities mentioned therein, and on such production of the child before the Committee an enquiry is to be conducted, and after consideration of the said enquiry appropriate order has to be passed whether to send the child to children's home or in a fit facility or fit person. At this stage we may also like to observe that the enquiry can be conducted by the committee even on the basis of a report under section 31 of the Act. A perusal of the Juvenile Justice (Care and Protection of Children) model rules, 2016 also provide in rule 18 about production of the child before the committee, and only after the child is produced before the committee and the report in this regard is submitted, the committee proceeds to conduct the enquiry, and thereafter if the facts warrant, declare the child to be a child in need of care and protection.
27. The scheme of the Act also indicates that the enquiry commences only after the production of the child before the committee as per section 36 of the act, and appropriate orders can be passed which are provided for in section 37 of the Act.
28. After examining the various provisions of the Juvenile Justice Act, 2015, it becomes clear that the golden thread underlying the scheme is the rehabilitation of the minor child. In section 36(3) it is provided that after completion of the enquiry the committee is of the opinion that the child has no family or ostensible support or is in continued need of care and protection, it may send the child to specialised adoption agency. Section 37 provides that after the committee declares the child to be in need of care and protection, its primary task is to restore the child to the parent or guardian or family, failing which the minor is to be placed with Children's Home, fit facility, specialized adoption agency etc. Section 38 of the act further provides with regard to the orphaned or abandoned child where the Committee is required to make all efforts for placing such children with their parents or guardians failing which they are declared as child legally free for adoption. Chapter VII is entirely dedicated towards rehabilitation and social reintegration of the children, where it is provided that the restoration and protection of a child shall be the primary objective of any children's home, specialised adoptive agency or orphan shelter. Considering aforesaid provisions contained in the Juvenile Justice Act, 2015 it becomes abundantly clear that the objective of the committee is rehabilitation of the child. When a child is produced before the committee, an enquiry is initiated by the committee. In the said enquiry all the available details regarding the child are gathered. His medical and psychological examination may be conducted, pursuant to which the declaration is required to be made that the child is in need of care and protection, and thereafter in accordance provisions laid down the child can be sent any of the places including children's home, fit institution or for fit person etc.
29. The jurisdiction of the Committee is limited to passing necessary orders after making an "enquiry". If the child is found to be a child in need of care and protection necessary orders as envisaged in the act can be passed. There may be cases where there are allegations of abuse of the child by his own parents, or the child may be voluntarily handed over/surrendered by the parents as provided in section 35 of the act, in which case the committee can send the child appropriate place including fit person, fit institution, children's home etc., after following the due process.
30. A bare perusal of the statutory scheme clearly indicates that it the Committee as constituted and empowered under the Act of 2015, does not envisage judicial determination of disputed facts, where at the behest of one of the parents a complaint is made with regard to abuse of the child by the other parent or person, and custody is also sought by such parent or person. If such a case arises then the Committee would be within its powers to declare the child to be in need of care and protection, and send him to a fit facility of children's home etc. pending determination/adjudication by court of competent jurisdiction on questions of custody but handing over of the custody to the other parent or relative, would amount to deciding a matter regarding custody of minor, and as such, it cannot be done merely on basis of a limited enquiry as envisaged in section 31 of the Act. Disputed questions of fact and law would have to be judicially determined, which matter, as discussed earlier would be only for the regular Courts exercising jurisdiction under the Family Courts Act, Hindu Minority and Guardianship Act or the Guardians and Wards Act to decide the issue of custody of a minor child from one parent to another or from one parent to another person in the interest of the child. This is also in consonance with the definition of "Court"provided in Section 2 (23) of the Juvenile Justice Act, 2015 where in matters of adoption and guardianship court would means the civil court which has jurisdiction in the matter.
31. Section 40 of the juvenile Justice act would also indicate that it would be the primary duty of the committee to restore a child in need of care and protection, to its parents. Even section 40 of the Act cannot be interpreted to mean that the custody can be taken away from one parent and given to another, as under the said section the word used is "restoration" and "parents" and hence only where the child has fled from home, or is found in illegal custody of third person etc. can he be restored to his parents after following the procedure. It is clear that custody of a child with one parent cannot be transferred to another parent or relative in exercise of power under section 40 of the Act.
32. A petition under Section 13 of the Family Courts Act in case no.2479 of 2021 is pending before the Family Court, Lucknow filed by respondent no.4 against the petitioner, where the issue of custody of the minor child can be appropriately dealt with and decided.
33. Another important aspect which persuades us from holding that the Committee is not empowered to decide contentious custody matters is the scheme of the Juvenile Justice Act, where the procedure provided is limited to holding an enquiry as per section 37 of the Act of 2015 on the production of the child who is in "need of care and protection". On the completion of the enquiry if the committee is of the opinion that the child has no family or ostensible support and continued need of care and protection it may send the child to special adoptive agency. While exercising such power, the welfare of the child is of the utmost importance, which has to be objectively determined by the Committee on the basis of the material on record.
34. A perusal of the provisions dealing with the manner of exercise of power vested in the Committee is limited to passing necessary orders for the protection of the child keeping in mind his/her best interest. The power exercised by the committee is administrative in nature, rather than judicial, which involves determination disputed questions of law and fact. Only the facts have to be ascertained in an enquiry, and orders have to be passed in the best interest of the child. Matters pertaining to grant of custody to either of the parents where the matter is contested between the husband-and-wife, where both claim to be in a better position to have the custody of the minor, then the issues have to be determined judicially after due process and not in a summary manner as per the provisions contained in the Juvenile Justice Act, 2015, and for this reason also, matters of guardianship and custody of minors are to be decided by the competent civil courts after taking evidence and giving proper opportunity of hearing to either side. In this regard Section 2(23) of the juvenile justice act has also to be taken account of which defines the "Court" to be a civil court which has jurisdiction in the matters of adoption and guardianship and may include District court, Family court and City Civil Courts. Therefore, with regard to matters pertaining to guardianship, even according to Juvenile Justice Act, 2015, it is the civil courts which would have precedence and exclusive jurisdiction in deciding such matters, and hence this Court is of the considered view that the Committee neither has the jurisdiction nor the power to decide contested claims pertaining to guardianship and custody of minor.
35. The Delhi High Court in the case of Geetanjali Dogra Vs State and Others CM(M) 1140/2018 while considering the powers of the Committee with regards to its powers to deal with the matters regarding visitation rights of one of the parent, after examining the provisions of the Juvenile Justice act held as under:-
"30. 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 i.e. the petitioner and the respondent no.2 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.
31. On a consideration of the submissions that have been made on behalf of either side, as observed hereinabove, in terms of Section 7(1) of the Family Courts Act, 1984, taking the same into account and the aspect that there is a litigation pending in the Family Court between the mother of the minor child and the father of the minor child as has been submitted on behalf of the petitioner and not refuted on behalf of the respondent no.1 in as much as the proceedings for maintenance are pending before the said Court, 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.
32. Furthermore, it cannot be overlooked that 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.
36. The Calcutta High Court in the case of Tasleema Begum vs The State Of West Bengal & Ors W.P. No.19557(W) of 2017 decided on 4 January, 2018 in similar circumstances has held:-
"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 Committee can in the interregnum provide for the welfare of the children.
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."
37. A perusal of the aforesaid judgement is passed by the Delhi High Court as well as the Calcutta High Court would indicate that both the High Court's have also taken a similar view that the provisions of the Juvenile Justice Act does not give it the power to decide contested and disputed matters pertaining to custody, while it can only as an interim measure, pass appropriate orders in the welfare of the child.
38. Though the finding recorded hereinabove would have been sufficient to conclude/decide the present case, but the manner in which the Committee has proceeded to decide the case as well as the District Magistrate exercising his power of appeal, requires a special mention.
39. The Committee constituted under the Juvenile Justice Act is tasked with the sole objective of acting in the best interest of the child. The individuals manning the Committee are expected to be objective in their approach, be sensitive to the needs of the child and take a holistic view of the situation presented before them and are required to deal with regard to the children in need of care and protection with great circumspection and exploring all possible solutions, before reaching an informed decision with regard to the minor. Any decision short of the above attributes, is liable to be infirm and may turn out to be counter-productive to the best interest of the child. In present Case the complaint was made by the grandfather of the child levelling allegations against his daughter-in-law (petitioner) about abuse and mistreatment of the child, and in turn had sought custody of the minor. It is only after directions were issued by this court on 22.07.2021 that the Committee decided to take up the issue. Notices were issued to the petitioner on 02.08.2021 and 04.08.2021 directing her to appear on 04.08.2021 and 06.08.2021 respectively. It is not understood as to how the Committee expected the notices to be served within two day's by speed post. According to the order-sheet the petitioner was informed on telephone to appear on 16.08.2021. The petitioner appeared along with her minor daughter on the said date. She claims to have denied the allegations made by the complainant. She has denied the meeting with the councillor, she refused to sign the statement made by her and stated that all the medical reports submitted by the complainant were under influence of the father-in-law who retired senior post of Director general medical and health. The committee interacted with the child, and thereafter concluded the proceedings and reserved its orders.
40. A perusal of the impugned order passed by the Committee dated 17/08/2021 would reveal that the entire enquiry and discussion is regarding conduct and behaviour of the petitioner. There is no mention or even a whisper with regard to the issue being dealt by them regarding the minor's custody which was being determined by the Committee. The Committee has relied upon information published in newspaper articles, and attributed disease of "fbing" still unknown to the medical science to the petitioner and held that she is unable to look after the welfare of the child. The procedure and manner adopted by the committee for deciding the controversy, on the face of it, is absolutely arbitrary coupled with the fact that even the copy of the complaint was never supplied to the petitioner, the medical reports sought to be used against her were never verified by the committee and most importantly there is no mention of the child being examined by the committee which was the primary duty and responsibility. There is no reason as to why the proceedings were concluded in such a hurry manner on 16/08/2021 itself when the petitioner had appeared along with her daughter. We have also perused the original records but could not find the proceedings relating to 16/08/2021. Initially a photocopy of the order-sheet was produced before us, as the order contained therein were cryptic and did not disclose the true proceedings of the Committee and therefore this Court was constrained to call for the entire original records and we found that the typed order-sheet produced before us was at variance with the order-sheet maintained by the committee in the original file. Such procedure is not appreciated and does not inspire confidence in the way the Committee seems to be functioning. No proper proceedings were held to declare the respondent No. 3, 4 and 5 to be fit persons, before handing over the custody of the minor. The procedures prescribed in the model rules have also not been followed. Even though respondent No. 3 had prayed for temporary custody of the minor child, but the custody has been granted without any boundation of time or any other contingency, as if it is a final determination with regard to the custody. The Committee has proceeded totally in violation of the statutory provisions and the rules in the present case. We also take cognizance of the fact that an application for exemption has been moved by the private respondents on 22.3.2023 on the ground that respondent No.3 is old and infirm and is suffering of various ailments while respondent No.5 is living with her husband in NOIDA. The above facts were also there before the Committee before it proceeded to declare respondent No.s 3 & 5 fit persons. The facts themselves reveal that the order of the Committee was was illegal and arbitrary and suffered from non application of mind. They were fully aware that respondent No.3 (grandfather) who was the complainant was 78 years' old and still proceeded to declare him a fit person only to hand over the custody of the minor child while respondent No.5 was a resident of NOIDA living with her husband and would not be in a position to look after the minor child at Sultanpur but she was also declared a fit person and custody handed over.
41. The District Magistrate, on the other hand, deciding the appeal against the order of the Committee has assumed the role of an "appellate court" under the Civil Procedure Code as well as Criminal Procedure Code. He has admitted that there was no reliable material before the Committee to give the custody to the respondents, but decided to entertain additional evidence, which was filed only by the respondents, and on the basis of the CCTV images and on the basis of the evidence adduced it returned a finding that the petitioner was abusing the child and mistreating her and consequently granted custody to the respondents.
42. With regard to the validity of the impugned appellate order, firstly, we would like to observe, that an administrative officer hearing in appeal has to decide the same in consonance with the statutory provisions which have clothe him with such power. Under the Juvenile Justice Act Section 101 provides for appeals, against the orders of the Committee. The Act does not given any power to the appellate authority to receive additional evidence, and therefore in absence of any such power the appellate authority under the Juvenile Justice Act, 2015 would not have any power to receive additional evidence. It can only examine and decide the appeal on the grounds on which the same has been filed. Even otherwise, the Committee, who's order are appealed against does not take evidence, but only passes orders on the basis of "enquiry" as provided in Section 31 of the act, and certainly the appellate authority would not have any more powers than that of the body empowered to decide the matter originally. It is in this regard that the District Magistrate has exceeded its jurisdiction and clearly misdirected himself while deciding the appeal. In case the appellate authority was of the view that the order of the committee was incorrect and that it should have taken/considered more evidence/material, then it could have remanded the matter back to the committee to decide the matter afresh, but it certainly did not have any power to receive "additional evidence". The provision of appeal is also provided in various other statutes to the higher authority against the orders passed by authorities prescribed therein, where they decide about matters pertaining to creation, extinguishment or defining rights under the said statutes, but such appeals cannot be equated to the power of appeal as provided to the regular courts under the Civil Procedure Code or the Criminal Procedure Code. The appellate authority under these special statutes, are in fact Tribunals is of limited jurisdiction, and are vested with the power of deciding the appeal against the order of the prescribed authority and nothing more. Such appellate authorities are, in fact, Tribunals of limited jurisdiction exercise of powers of which are circumscribed in the statute itself and they cannot arrogate to themselves the powers of an appellate court under the Civil Procedure Code or Criminal Procedure Code.
43. After examining the orders of the Committee as well as of the District Magistrate, this Court is of the considered view that both the orders are illegal and arbitrary and deserve to be set aside. Accordingly, the writ petition is allowed. Order dated 17/08/2021 passed by the Child Welfare Committee, Sultanpur as well as the order dated 06/12/2021 passed by the appellate authority are hereby quashed.
44. The custody of the minor daughter of the petitioner is restored to the petitioner forthwith. It would be open for the petitioner as well as respondent No. 4 to approach the competent court to seek custody of their minor daughter in accordance with law.
Dt: 29.03.2023 (Alok Mathur, J.)
RKM