Whether child welfare committee under Juvenile justice Act can hand over custody of child to mother when the matter is pending before the Family Court?

 5. In a case of identical nature, a Division Bench

of this Court in Shaiju S and others v. Child Welfare

Committee and others [2021 (6) KHC 573] has held as

under:

“11. We must at the outset note that the Committee

committed grave error in ordering custody to the mother

when the matter is pending before the Family Court. The

Committee ought to have restrained from entertaining a

dispute which is a subject matter of lis between the

parties. We must also note that wrangling between the

spouses in regard to custody will not confer any power on

the Committee to interfere in such matters and give

custody to one of them. Going by various provisions,

including Section 2(14)(v) of the Act, the Committee's role

would arise only when none of the parents is in a position

to take care or protect the child or children. The

Committee can step into at a stage to protect a child when

parents are not in a position to protect the child. The role

of the Committee commences from the stage where both

parents are not in a position to take care and protect the

child. The parens patriae principle to intervene is to

protect the child and act as a parent of the child when

parents fail to take care and protect the child. So also is

the matter of dispute between spouses. The Committee

would be justified in interfering with the custody of child

with one of the parent, if that parent is incapacitated or

failed completely to take care of the child.

12. The Committee cannot voluntarily interfere with

the custody of the children except on a circumstance

where it forms an opinion that the child requires care and

protection. Merely because the children are isolated from

the mother by the father, Committee cannot interfere with

the legal custody of the children by the father”.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 35830 OF 2024

SHITHU KS Vs  CHAIRPERSON, CHILD WELFARE COMMITTEE,

PRESENT

 MR.JUSTICE C.S.DIAS

Dated this the 12th day of December, 2024

Citation: 2024:KER:94086.

Read full Judgment here: Click here. 

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Kerala HC: Shuttling Child Between Two Forums Causes Inconvenience And Is Detrimental To Child's Welfare

 On scrutinizing the averments in

O.P.No.411/2024, it shows that that the 3rd respondent

does not have a case that his child is a child in need of

care and protection so as to attract the provisions of the

Juvenile Justice (Care and Protection of Children) Act,

2015. Even otherwise the respondent in the petition is

the biological mother of the child. Furthermore, the

filing of a second petition for an identical relief is

unwarranted because the Family Court is the Court of

competent jurisdiction to decide on the interim and

permanent custody of the child. The Family Court has

concurrent jurisdiction with the 1st respondent in matters

concerning the welfare of children. Since the 3rd

respondent has elected the Family Court, his subsequent

endeavour to approach the 1st respondent for identical

reliefs seems to be with an intention to harass the

petitioner. Unmindful of the above legal question, the 1st

respondent has ordered the 2nd respondent to produce

the child before them, when the matter is sub-judice

before the Family Court. {Para 4}

6.  Shuttling the child between the two

Forums will cause inconvenience to the child and is

detrimental to its paramount welfare.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 35830 OF 2024

SHITHU KS Vs  CHAIRPERSON, CHILD WELFARE COMMITTEE,

PRESENT

 MR.JUSTICE C.S.DIAS

Dated this the 12th day of December, 2024

Citation: 2024:KER:94086.

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Whether writ of Habeas Corpus will be maintainable against Judicial order or Child Welfare Committee’s order under J.J. Act?

 Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest is paramount and before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in mind. The wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.{Para 78}

79. Thus, it is evident that a writ of habeas corpus would not be mintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus.

80. We accordingly come on our conclusions in respect of question nos. 1, 2 and 3 for determination as follows:—

Question No. 1:“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

Answer : If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Question No. 2:“Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?”

Answer : An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention.

Question No. 3:“Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes is legally valid or it requires a modified approach in consonance with the object of the Act?”

Answer : Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

81. Thus, all the three issues referred for determination are answered, accordingly. 

In the High Court of Allahabad

(Before Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ.)

Rachna and Another  Vs State of U.P.

Habeas Corpus Writ Petition No. 362 of 2020

Decided on March 8, 2021,

Citation: 2021 SCC OnLine All 211

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Duty of child welfare committee to deal with statements made by child during pendency of custody dispute

The Kerala High Court on Friday, 26 June 2015 in a judgment titled ‘Sanumol C.C. Vs. Sunny P.C.‘ has held that “the Child Welfare Committee should deal cases with utmost care and caution and the Committee should not allow itself to be swayed away by the statement made by a child, without trying to test its veracity, especially in a case in which his or her parents are at loggerheads with each other, either on matrimonial issues or for custody of their minor children”.
 IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                      PRESENT:

                        THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
                                                            &
                       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

                    FRIDAY, THE 26TH DAY OF JUNE 2015

                                          OP (FC).No. 280 of 2015 (R)
                                                ---------------------------

         SANUMOL C C, 
Vs

            SUNNY P C
          

                                 

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Whether child welfare committee has right to direct police to register offence in case of sexual offence against child under POCSO Act?

The present instance is a classic example and a fine illustration to note down the gross illegalities being committed by the CWCs without knowing as to what they are and what are their powers are, and as to how recklessly they are exercising powers, which are not even conferred on them. It seems that in this particular case, the CWC, Wayanad has crossed over all the limits and has committed  gross illegality in passing such an order. The CWC has no power to register a case. Without any powers, it seems that, they have directed the SHO, Mananthavady to register the case against 6 persons, including the petitioners herein. The SHO, Manathavady has chosen to arraign 9 persons as accused in the crime, including the present petitioners as A9, A8 and A7 respectively. The offences alleged against the petitioners are under Sections 9(f), 9(l), 19(1) and 21(2) of the POCSO Act.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                          MR. JUSTICE B.KEMAL PASHA

        THURSDAY, THE 18TH DAY OF DECEMBER 2014/

        DR LETHA J., A    Vs   STATE OF KERALA

                                                     

Citation 2015CRLJ(NOC)248 kerala

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Whether child welfare committee is competent to decide rival claims of right to custody of a child?

Learned counsel for the petitioners relied upon a number of decisions of the apex Court with regard to the principles to be followed in deciding the custody of a child by a parent or guardian under the Hindu Minority and Guardianship Act and under the Guardians and Wards Act and contended that in the matter of custody of a child, the welfare and best interest of the child is the paramount consideration. He also submits that since opposite party no.3 abandoned the child, it cannot be said that it would be in the best interest of the child to give her custody to opposite party no.3. As has been seen earlier the committee is not competent to decide rival claims of right to custody of a child but only concerned with the care and protection of a child and for such purpose, in exercise of its power under the Act it can restore the child to its parents. Considering the age of the child and the circumstances under which opposite party no.3 had left her with another woman in Mangala Temple premises, the Child Welfare Committee, Cuttack decided to restore the child in favour of her mother (opposite party no.3) for her care and protection, which cannot be taken exception to.

Orissa High Court

Sebati Padhi & Another vs Unknown on 23 April, 2013

CRIMINAL REVISION NO.747 OF 2012

Citation; 2014(3)crimes 163 (orissa)

PRESENT

THE HON'BLE SHRI JUSTICE B.K.NAYAK

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