Calcutta High Court (Appellete Side)
2/11/10 Dr. Sharmistha Kar ... vs State Of West Bengal & Ors on 12 November, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
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In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P.No. 21904 (W) of 2010
12/11/10 Dr. Sharmistha Kar Purokayastha
v.
State of West Bengal & Ors.
Mr. Kalyan K. Bandopadhyay
Mr. Haradhan Banerjee
Mr. B.P.Banerjee
Mr. Krishnendu Bhattacharyya
... for the petitioner.
Mr. Nisith Adhikari
Ms. Abha Roy
Mr. Abhra Mukherjee
... for the State.
Mr. Abhijit Ganguly
Mr. Surojit Sen
... for the third and fourth
respondents.
Mr. Saktinath Mukherjee Mr. Sekhar Basu Mr. Rana Mukhopadhyay Mr. Pravas Bhattacharyya ... for the sixth respondent.
The petitioner in this art. 226 petition dated November 10, 2010 is questioning an order of the Chairperson, Child Welfare Committee, Kolkata dated October 9, 2010 (at p.65) made under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
2The sixth respondent is the husband of the petitioner. At present the sixth respondent is working as the Additional Director General of Police (Law & Order) of the Government of West Bengal. The order dated October 9, 2010 was made by the Chairperson of the Child Welfare Committee on the basis of a letter of the sixth respondent dated October 8, 2010. A copy of the letter has been produced at the time of hearing.
By the letter dated October 8, 2010 the sixth respondent informed the Chairperson of the Child Welfare Committee that in view of the facts stated therein he had "no alternative but to move out of" his "present residence along with" his "child for her protection." The substance of the allegation is that the petitioner, the mother of the child, ill treated the child, and that, as a result, the child " is severely shocked and pained."
After considering the allegations made in the letter the Chairperson of the Child Welfare Committee ordered as follows:
" In the meantime, the applicant of this letter Mr. Surajit Kar Purokayastha is directed to place the child in a safe and peaceful environment away from her alleged tormentor, i.e. from Mrs. Sharmistha Kar Prokayastha, till further orders."
Mr. Bandopadhyay, counsel for the petitioner, has questioned the jurisdiction of the Child Welfare Committee to initiate the case and make the order on the basis of the letter of the sixth respondent dated October 8, 2010. Referring me to the statement of objects and reasons, preamble and ss. 2,29,30, 31,32 and 41 of the Act, Mr. Bandopadhyay has submitted that the committee had absolutely no jurisdiction to initiate the case and make the order.
Mr. Mukherjee, counsel for the sixth respondent, has argued as follows. Remedy of the petitioner, if any, is an appeal under s. 52. In view of the statement of objects and reasons, preamble and the provisions of s. 31 of the Act, there is no reason to say that the committee did not have jurisdiction to entertain the matter and make the order. The committee is empowered to initiate case and 3 make order for care and protection of every child who is in need of care and protection.
Counsel for the committee has also taken the point that in view of the provisions of s.52 the petition is not maintainable. He has said that on the basis of the sixth respondent's complaint the committee made the order in exercise of its power under s.31 of the Act.
Section 2(d) of the Act defines the expression "child in need of care and protection". Section 31 confers on the Child Welfare Committee power to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights.
Section 32 provides that a child in need of care and protection may be produced before the committee by one of the persons named therein. Section 33 provides that on receipt of a report under s.32 the committee shall hold an enquiry in the prescribed manner.
The question is whether a child whose custody is unilaterally taken by its father can be treated as a child in need of care and protection within the meaning of s.2(d) of the Act.
Admittedly, the sixth respondent unilaterally took custody of the child in question and sent the letter dated October 8, 2010 simply informing the committee that for the reasons stated therein he had moved out of his present residence with the child for the protection of the child. He did not seek any relief from the committee nor did he ask the committee to do anything. The child was not produced before the committee.
It is not disputed that till before the sixth respondent took custody of the child, the child was in the joint custody of the petitioner and the sixth respondent. The petitioner has filed an art.226 petition seeking a writ of habeas 4 corpus and it is pending. It is submitted that the sixth respondent has initiated proceedings for dissolution of marriage, and that such proceedings are also pending.
After hearing counsel for the parties and closely examining the provisions of the Act, I am of the prima facie view that a Child Welfare Committee constituted under s. 29 of the Act has no power or jurisdiction or authority to initiate proceedings for care and protection of a child who is under the care and protection of its father who seeks a seal of approval of the committee with a view to depriving the mother of the custody of the child.
My tentative opinion is that the proceedings initiated by the committee and the order passed therein are absolutely without jurisdiction. In my opinion, on the facts, there is no reason to say that in view of the provisions of s.52 the petitioner is not entitled to approach the Writ Court. I am of the considered view that it is a fit case for making an appropriate interim order.
For these reasons, I admit the petition, stay the operation of the order, and order that during pendency of this petition no step shall be taken in the proceedings before the committee.
It is made clear that the petitioner and the sixth respondent will be free to proceed with the proceedings pending before the other Courts and forums, and that it will be open for the other Courts and forums to decide the question of custody of the child.
The respondents shall file opposition within two weeks; reply, if any, shall be filed by two weeks thereafter. Liberty to mention the petition for final hearing. Certified xerox.
h ( Jayanta Kumar Biswas, J )
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