Kerala High Court
Shiras Shamsuddin vs State Of Kerala on 22 October, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941
WP(C).No.21022 OF 2019(C)
PETITIONER:
SHIRAS SHAMSUDDIN
AGED 45 YEARS
S/O. SHAMSUDDIN,RESIDING AT SULEKHA, KANIYAMPURAM,
CHITTATTUMUKKU, CHITTATTUMUKKU P.O,
THIRUVANANTHAPURAM-695 301
BY ADV. SMT.MAJIDA.S
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY,M HOME AFFAIRS,SECRETARIAT,
THIRUVANANTHAPURAM GENERAL POST OFFICE,
THIRUVANANTHAPURAM-695 001
2 CHAIRPERSON,
CHILD WELFARE COMMITTEE, GOVERNMENT CHILDRENS HOME,
POOJAPPURA, POOJAPPURA P.O., THIRUANANTHAPURAM-695
012
3 SAJNA SHAHIDA,
AGED 39 YEARS
D/O. SHAHIDA,RESIDING AT PLOT NO.10, AMBLA NAGAR
COLONY, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003
R3 BY ADV. SMT.JAYASREE K.P.
OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1 AND R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.21022/2019 2
ALEXANDER THOMAS, J.
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W.P.(C)No. 21022 of 2019
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Dated this the 22nd day of October, 2019
JUDGMENT
The petitioner herein is the husband of the 3rd respondent and they have two minor sons, aged 12 years and 8 years respectively and a minor daughter, aged 6 years born in their wedlock. It appears that there are matrimonial disputes between the above said spouses and the custody of the three children is now in the petitioner husband and aggrieved thereby, the 3rd respondent wife has already set in motion litigative proceedings before the Family Court, Attingal under the provisions of the Guardians and Wards Act for the custody of the children. Further it appears that the Family Court has passed an interim order granting custody of the children to the 3rd respondent wife only for a day. The complaint of the petitioner is that the 3rd respondent being not successful enough to get orders from the Family Court regarding the custody of the children has adopted the circuitous method by filing Ext.P3 petition dated 18.6.2019 before the 2nd respondent Child Welfare Committee Thiruvananthapruam constituted under the provisions of the Juvenile Justice Act, praying that the directions may be issued by W.P.(C)No.21022/2019 3 the said Committee to issue directions to the petitioner husband to give the custody of the children to the 3rd respondent herein (wife). Further that the said petition has been numbered as Original Petition, O.P.No.574/2019 on the file of the 2nd respondent Child Welfare Committee, Thiruvananthapuram, who has now issued Ext.P4 summons to the petitioner herein directing him to personally appear on the day mentioned therein and that he should also produce the three minor children before the said Committee.
2. Heard Sri. S. Majida, learned counsel appearing for the petitioner husband, Smt. K.P. Jayasree, learned counsel appearing for the 3rd respondent wife and Sri. Amjad Ali, learned Public Prosecutor appearing for R1 and R2. Both sides have made contentions on the merits of the matter and this Court is of the considered view that there is no necessity for this Court to enter into the terrain of adjudication of the merits of the rival contentions on either sides. The main contentions that are urged by the counsel for the petitioner husband regarding the alleged lack of jurisdiction of the 2nd respondent Child Welfare Committee in entertaining Ext.P3 O.P.No.574/2019 and in issuing order in the nature of Ext.P4 directing the petitioner to produce the three minor children etc. are that the case made out in O.P. is not in respect of a child in need of care and protection as envisaged in the four corners of Section 2 (14) W.P.(C)No.21022/2019 4 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and further that 3rd respondent has no locus to file a complaint like Ext.P3, going by the requirements of Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:
"2. Definitions In this Act, unless the context otherwise requires,-
xxx xxx xxx xxx (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
(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 W.P.(C)No.21022/2019 5 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 run away 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 victim of or affected by any 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;"
Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:-
"31. Production before Committee (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 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 W.P.(C)No.21022/2019 6 sending and entrusting the child to children's home or fit facility or fit person, as the case may be, during the period of the inquiry."
Without getting into the merits of the controversy in any manner, this Court is of the considered view that the 2 nd respondent Child Welfare Committee will have to consider the matter afresh and decide as to whether the said Committee has got jurisdiction to entertain Ext.P3 petition and whether Ext.P3 O.P. makes out a case of "child in need of care and protection" as envisaged in Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and whether the 3rd respondent has a locus to make a complaint in view of the requirements under Section 31 of the above said Act. Further, the 2 nd respondent should also consider the above said specific contention raised by the petitioner husband that the sole original jurisdiction to deal with custody disputes between parents regarding the custody of the children is vested exclusively with the Family Court going by the mandatory provisions contained in the Family Courts Act, 1984 and that the 2 nd respondent Child Welfare Committee cannot usurp the said jurisdiction conferred conclusively on the said judicial forum, which is presided over by a judicial officer of the rank of District Judge, while taking recourse to the proceedings of the Juvenile Justice Act and that this contention is made all the more so in view of the fact that none other than the W.P.(C)No.21022/2019 7 3rd respondent has already set in motion litigative proceedings before the Family Court for the custodial rights of the children as per the petition filed by her before the said Court in terms of the provisions contained in the Guardians and Wards Act. Accordingly, without considering the above said jurisdictional aspects, it is not right and proper for the 2nd respondent Child Welfare Committee to have directed the petitioner to produce the children to the said Committee. Accordingly, Ext.P4 notice/summons to the limited extent it directs the petitioner to produce the three minor children mentioned therein will stand set aside. Since the date of appearance (22.7.2019) mentioned in Ext.P4 is now already over, the 2nd respondent Child Welfare Committee may issue fresh notices to the petitioner and the 3rd respondent intimating the notice of hearing to the parties and both sides should be given reasonable opportunity to submit the written submissions regarding the jurisdictional aspects. Thereafter, the 2 nd respondent Child Welfare Committee will hear both sides and decide as to whether the said Committee has got jurisdiction to deal with the complaint and decide as to whether the above said Ext.P3 petition makes out a case of "child in need of care and protection" as envisaged in Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and whether the 3rd respondent has a locus to maintain a W.P.(C)No.21022/2019 8 complaint in terms of Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also as to whether the facts and circumstances of the case, the Child Welfare Committee has the jurisdiction to entertain the request for the custodial rights of the children more so particularly, in view of the pending custodial application filed by none other than the 3 rd respondent before the Family Court concerned. The 2nd respondent Child Welfare Committee will initially to take a decision only on the above said aspects and should issue proceedings in that regard and only in a case where the 2nd respondent Committee finds that it has jurisdiction to entertain the petition in terms of the above said proceedings initiated by it, shall the said committee enter into the adjudication of the merits of the case put up by the private parties. Proceedings regarding the maintainability and jurisdiction of the matter as directed herein above should be specifically decided by the 2nd respondent Child Welfare Committee within six weeks from the date of production of certified copy of this order.
With these observations and directions, the above Writ Petition will stand disposed of.
sd/-
ALEXANDER THOMAS, JUDGE.
acd W.P.(C)No.21022/2019 9 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION IN O.P(G & W) NO.870/2019 DATED 14.6.2019 ON THE FILE OF FAMILY COURT, ATTINGAL EXHIBIT P2 TRUE COPY OF THE IA IN O.P(G & W) NO.870/2019 ON THE FILE OF FAMILY COURT, ATTINGAL, DATED 14.6.2019 EXHIBIT P3 TRUE COPY OF THE COMPLAINT IN O.P.NO.6574/2019 ON THE FILE OF THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE SUMMONS IN O.P.NO.6574/2019 ON THE FILE OF THE 2ND RESPONDENT DATED 15.7.2019 True Copy P.S. To Judge.