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Geetanjali Dogra vs State & Ors on 6 September, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 1140/2018

Judgment reserved on : 20.12.2018
Date of decision : 06.09.2019

GEETANJALI DOGRA ….. Petitioner
Through: Mr. Azhar Qayum, Adv.
versus

STATE ORS ….. Respondents
Through: Mr. Prabhsahay Kaur, Adv.
with Ms. Aakansha, Adv. for R-
1.
Counsel for R-2.
Mr. Rajiv Pandit, the
Intervenor.

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1. The petitioner, the mother of the minor child Saarthik Mehta
aged 9 months on the date 14.09.2018 i.e. the date of the impugned
order passed by the Child Welfare Committee (CWC), District South
bearing D.No.CWC/LN/2018-19/982 seeks the setting aside of the
said impugned order of the CWC (South), vide which the CWC
observed to the effect that considering the best interest of the child
who was just nine months old, the Committee decided to give
permission to the father of the child, Commander Rahul Mehta to have
access to the child Master Saarthik Mehta to meet his child for two

CM (M) 1140/2018 Page 1 of 23
hours on every Saturday/ Sunday during the day time with mutual
convenience of the both parents at the residence of the mother.

2. The respondent no.2, Mr. Rahul Mehta, father of the minor
child is indicated to have filed an application under Section 2 (14) (iii)
of the Juvenile Justice (Care and SectionProtection of Children) Act, 2015 to
restore the basic right of the child under SectionArticle 9 of the United Nation
Convention on the Rights of the Child (UNCRC) which provides that
in the event of separation of parents, children have the right to live
with their parents unless it is bad for them and the children whose
parents do not live together have the right to stay in contact with both
parents, unless this might hurt the child which convention has been
ratified by India on 11th December, 1992.

3. Vide the impugned order, it is indicated that the CWC
interacted with both parents and conducted an enquiry on 13.08.2018
when the mother of the child had been called upon to produce the
child by the CWC when the respondent no.2 herein i.e. father of the
child had moved an application through a child right activist that the
child was being denied love, care and protection of his biological
father by the biological mother, the child was, however, not produced
by the petitioner herein stating that the child was unwell. The CWC is
indicated to have considered the S.I.R. of the mother and the father
and thereafter passed the impugned order dated 14.09.2018.

4. The grievance of the petitioner is to the effect that the impugned
order of the CWC is contrary to the provisions of the Juvenile Justice
(Care and SectionProtection of Children) Act, 2015 and is beyond the
jurisdiction of the CWC. The petitioner has further submitted that the

CM (M) 1140/2018 Page 2 of 23
terms and provisions of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015 have been misunderstood by the CWC and that
the CWC does not have the authority to ignore and traverse the
provisions of neither the Hindu Minority SectionGuardianship Act, 1956
nor of the SectionHindu Marriage Act, 1955 nor of the Guardians and SectionWards
Act, 1890.

5. Other submissions were also made by the petitioner mother of
the minor child that the CWC had not considered the request for grant
of maintenance of herself and for the child, which has not been paid
by the respondent. The petitioner submits that it is the Family Court or
the Guardian Court, which is the competent Court to deal with the
matters to decide the visitation rights after hearing both parties and
also to determine the maintenance that may be awarded in given
circumstances after ascertaining the income of either side.

6. During the course of the hearing on 20.09.2018, when notice of
the petition was issued and accepted on behalf of the respondent no.1
and notice of the petition was issued to the respondent no.2, it had
been submitted on behalf of the petitioner that there are litigations
pending between the petitioner and the respondent no.2 i.e. the mother
and the father of the minor child in question in relation to the
proceedings under the SectionDomestic Violence Act pending before the
Family Court in the petition under Section 125 of the Cr.PC, 1973 as
filed by the petitioner herein against the respondent no.2 and that there
have been mediation proceedings entered into between the petitioner
and the respondent no.2 on the date 10.08.2018 and that the impugned
order is de hors the provisions of the Juvenile Justice (Care and

CM (M) 1140/2018 Page 3 of 23
SectionProtection of Children) Act, 2015 and in violation of the Guardians
and SectionWards Act, 1890 and in violation of the Hindu Minority
SectionGuardianship Act, 1956 as well and that the CWC had no jurisdiction
whatsoever to pass the impugned order dated 14.09.2018. Vide order
dated 20.09.2018, without any observations on the merits or demerits
of the prayer taking into account the provisions of the Guardians and
SectionWards Act, 1890 and the Hindu Minority SectionGuardianship Act, 1956,
it was considered appropriate to stay the operation of the impugned
order dated 14.09.2018 as signed by the members of the CWC on
07.09.2018 till further orders.

7. The respondent no.2 vide CM No.48334/2018 sought the
vacation of the interim order dated 20.09.2018 and sought that he be
allowed to meet the minor child and that the basic right of healthy
upbringing of the minor child be restored. The respondent no.2
submitted that the petitioner i.e. the mother of the minor child was
depriving him i.e. the respondent no.2 of providing the minor child a
healthy upbringing which is in gross violation of the Juvenile Justice
(Care and Protection of Children), Act, 2015, CP CRC, SectionArticle 9 of
the UNCRC SectionArticle 21 of the Constitution. The respondent no.2 has
further submitted that in the absence of both parents, the child suffers
from a parental alienation syndrome, which amounts to cruelty on the
child itself.

8. Placed on record is also an application under Section 151 of the
CPC filed by Mr. Rajiv Pandit, the SectionChild Rights Activist as an
Intervenor in the present petition whose prayer for intervention was
allowed vide order dated 20.12.2018 in as much as the said applicant

CM (M) 1140/2018 Page 4 of 23
had in reply to a specific Court query submitted that he had assisted
the CWC in drafting the impugned order. The said Intervenor,
however, filed CM APPL.774/2019 seeking rectification of the stated
typographical error in the proceedings dated 20.12.2018 submitting to
the effect that he had merely assisted in the typing of the drafting of
the application and not in the drafting of the order of the CWC. The
said application was declined vide order dated 09.01.2019 observing
to the effect that the observations dated 20.12.2018 were in reply to a
specific Court query that had been put forward to the Intervenor and
thus prayer could not be granted. It was, however, made expressly
clear that it was essential to observe that the pronouncement of
the order, which had been reserved in the matter could only be on
the merits of either side and it did not matter as to who assisted in
the drafting of the order.

9. At the outset, it is essential to observe that undoubtedly for the
well being of a minor child, care and affection of both parents is
necessarily required. However, the grievance of the petitioner relates
to the jurisdiction exercised by the CWC vide the impugned order
dated 14.09.2018.

10. Section 2(14)(iii) of the Juvenile Justice (Care and SectionProtection 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)……

CM (M) 1140/2018 Page 5 of 23

(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;”

11. 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.”

12. 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.”

CM (M) 1140/2018 Page 6 of 23

13. Inter alia the petitioner places reliance on the provisions of
Sections 6(a) Section13 of the Hindu Minority and SectionGuardianship 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.”

14. The petitioner has also placed reliance on the provisions of
Sections 12 Section25 of the Guardians and SectionWards 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-

CM (M) 1140/2018 Page 7 of 23

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 1Code 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.”

15. 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

CM (M) 1140/2018 Page 8 of 23
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.”

16. Section 20 in Chapter-6 of the Family Courts Act, 1984
provides to the effect:

CM (M) 1140/2018 Page 9 of 23

“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.”

17. It is apparent thus that in view of the constitution of the
Family Courts in Delhi, the provisions of Section 7 (i)(a)(g) r/w
Section 20 of the said enactment makes it apparent that
jurisdiction in relation to the proceedings qua the custody or
access to any minor have essentially to be determined by the
Family Court and cannot fall within domain of the Child Welfare
Committee in terms of Section 2(14)(iii) of the Juvenile Justice
(Care and Protection of Children), Act, 2015 specially when there
are proceedings pending before the Family Court between the
parents of the minor child Saarthik Mehta.

18. Reliance has been placed on behalf of the petitioner on the
verdict of the Hon’ble High Court of Calcutta in Dr. Sharmistha Kar
Purokayastha Vs. State of West Bengal Ors. in WP 21904/2010 in
which the order of the CWC directing to place the child in a safe and
peaceful environment away from the mother of the child till further
orders was stayed with it having been observed to the effect:

“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

CM (M) 1140/2018 Page 10 of 23
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.”

19. Reliance was placed on behalf of the petitioner on the verdict of
the Hon’ble High Court of Calcutta in Tasleema Begum Vs. The State
of West Bengal Ors. in WP No.19557(W)/2017 in which it was
observed that the aspect as to who is the guardian of the child has to
be decided by an appropriate forum and that Section 40 of the Juvenile
Justice (Care and SectionProtection of Children) Act, 2015, which allows the
Child Welfare Committee to restore the custody of the child to the
parents or the guardians or a fit person that it deems proper in the facts
of a given case has to relate to first the determination as to who are the
guardians of the child or the fit person involved.

CM (M) 1140/2018 Page 11 of 23

20. Section 40(3) of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015 provides to the effect:

“40(3) The Committee shall have the powers to restore
any child in need of care and protection to his parents,
guardian or fit person, as the case may be, after
determining the suitability of the parents or guardian or fit
person to take care of the child, and give them suitable
directions.

Explanation.– For the purposes of this section,
“restoration and protection of a child” means restoration
to–

a. parents;

b. adoptive parents;

c. foster parents;

d. guardian; or
e. fit person”

21. Reliance was also placed on behalf of the respondent
no.2/father on the verdict of the Hon’ble Supreme Court in WP (Crl.)
102/2008 in Re: Exploitation of Children in Orphanages in the State
of Tamil Nadu Vs. Union of India Ors. with specific reference to
observation in para 62 (1) of the said verdict which are to the effect:

1. The definition of the expression “child in need of care
and protection” under Section 2(14) of the JJ Act
should not be interpreted as an exhaustive definition.
The definition is illustrative and the benefits envisages
for children in need of care and protection should be
extended to all such children in fact requiring State
care and protection.”

to submit that the definition of the expression ‘child in need of care
and protection’ under Sections 2 (14) of the Juvenile Justice (Care and

CM (M) 1140/2018 Page 12 of 23
SectionProtection of Children) Act, 2015 should not be interpreted as an
exhaustive definition and the contention sought to be made on behalf
of the respondent no.2 is to the effect that the same would include the
aspect of grant of visitation rights to estranged parents of a child.

22. It has been submitted on behalf of the respondent no.2 as also
submitted by the Intervenor that the welfare of the child is of
paramount interest and the infant has the right to love, care and
warmth of both his parents and denial of love, care and warmth of
parents to the child is a gross violation of the rights of the child as per
SectionArticle 9 (Separation from Parents) of UNCRC- 1989 ratified by India
in 1992 according to which children have the right to live with their
parents, unless it is bad for them and the children whose parents do not
live together have the right to stay in contact with both parents, unless
this might hurt the child. The respondent no.2 further submitted that
Master Saarthik Mehta then just above 9 months old would be bound
to live his life without the love, care and warmth of one parent and its
extended family members if a proper solution is not found and the
mother Ms. Geetanjali Dogra did not deny before the Child Welfare
Committee that the father of the child Shri Rahul Mehta i.e. the
respondent no.2 has a right to meet his child and for the same he
should obtain order from the Court.

23. Reliance was placed on behalf of the respondent no.2 on
Section 29(2) of the Juvenile Justice (Care and SectionProtection of Children)
Act, 2015, which provides to the effect:

“29 (2) Where a Committee has been constituted for any
area, such Committee shall, notwithstanding anything

CM (M) 1140/2018 Page 13 of 23
contained in any other law for the time being in force, but
save as otherwise expressly provided in this Act, have the
power to deal exclusively with all proceedings under this
Act relating to children in need of care and protection.”

submitting thus that the parent alienation syndrome has an impact
which is irreversible as a consequence of which, a child suffers
throughout his/her life.

24. The respondent no.2 and the Intervenor have sought to submit
that children in need of parental care of both parents fall within the
definition of the expression ‘child in need of care and protection’ in
terms of Section 2 (14) of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015 and that thus to ensure the principle of
participation and family responsibility as per Section 31 and in terms
of Section 29(2) of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015, the CWC has the powers to give directions to
allow the child to exercise his basic rights.

25. The respondent no.1 adopts the submissions made by the
respondent no.2.

26. It is essential to advert to the powers of the CWC in relation to a
child in need of care and protection on such child being produced
before it.

27. Section 31 of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015 provides to the effect:

“31. (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

CM (M) 1140/2018 Page 14 of 23
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 sending and entrusting
the child to childrens home or fit facility or fit person, as
the case may be, during the period of the inquiry.

Section 37 of the Juvenile Justice (Care and SectionProtection of Children)
Act, 2015, provides to the effect:

“37. (1) 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 following orders, namely:–

(a) declaration that a child is in need of care and
protection;

(b) restoration of the child to parents or guardian or family
with or without supervision of Child Welfare Officer or
designated social worker;

(c) placement of the child in Children’s Home or fit facility
or Specialised Adoption Agency for the purpose of adoption

CM (M) 1140/2018 Page 15 of 23
for long term or temporary care, keeping in mind the
capacity of the institution for housing such children, either
after reaching the conclusion that the family of the child
cannot be traced or even if traced, restoration of the child
to the family is not in the best interest of the child;

(d) placement of the child with fit person for long term or
temporary care;

(e) foster care orders under section 44;

(f) sponsorship orders under section 45;

(g) directions to persons or institutions or facilities in
whose care the child is placed, regarding care, protection
and rehabilitation of the child, including directions relating
to immediate shelter and services such as medical attention,
psychiatric and psychological support including need-
based counselling, occupational therapy or behaviour
modification therapy, skill training, legal aid, educational
services, and other developmental activities, as required, as
well as follow-up and coordination with the District Child
Protection Unit or State Government and other agencies;

(h) declaration that the child is legally free for adoption
under section 38.

(2) The Committee may also pass orders for–

(i) declaration of fit persons for foster care;

(ii) getting after care support under section 46 of the Act;
or

(iii) any other order related to any other function as may be
prescribed.”

28. The verdict of the Hon’ble High Court of Madhya Pradesh in
Priya Yadav Vs. State of M.P. Others. 2017 (2) MPLJ 404 is on
facts pari materia to the instant case.

29. It is apparent as has been observed by the Hon’ble High Court
of Madhya Pradesh in the aforesaid verdict vide paras 8, 9, 10, 11, 12,
13, 14 15 which read to the effect:-

CM (M) 1140/2018 Page 16 of 23

“8. Bare reading of the aforesaid, it is apparent that Police
Officer or Special Juvenile Police Unit or designated Child
Welfare Officer or any officer of the District Child
Protection Unit or Inspector appointed under Labour Law,
any public servant, childline service or any voluntary or
non-voluntary Governmental organisation or any agency
recognized by the Government, Child Welfare Officer or
Probation Officer, Social Worker, Public Spirited Citizen,
Nurse, Doctor, Management of Nursing Homes, Hospital
and Maternity Home may bring the child in need of care and
protection before the CWC or otherwise the child himself
may remain present asking relief as conferred to the
Committee. In the said provision, no space has been
provided to take action by the CWC on an application
submitted by the husband against a wife to produce the child
who are litigating in the Court of law.

9. As per section 32, it has been made mandatory on the
aforesaid persons to make report regarding a child found
separated from guardian and in case of non-reporting, it
would be an offence as per section 33 and section 34 who
provides for penalty. Thereafter the committee shall take
steps as specified in section 35 for surrender of the children
following the procedure as specified.

10. Section 37 is relevant which clarifies what type of orders
can be passed by the CWC with respect to the child in need
of care and protection, hence it is reproduced as under:
(1) 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 following
orders, namely–

(a) declaration that a child is in need of care and
protection;

(b) restoration of the child to parents or guardian or
family with or without supervision of Child Welfare
Officer or designated social worker;

CM (M) 1140/2018 Page 17 of 23

(c) placement of the child in Children’s Home or fit
facility or Specialized Adoption Agency for the purpose
of adoption for long term or temporary care, keeping in
mind the capacity of the institution for housing such
children, either after reaching the conclusion that the
family of the child cannot be traced or even if traced,
restoration of the child to the family is not in the best
interest of the child;

(d) placement of the child with fit person for long term or
temporary care;

(e) foster care orders under section 44;

(f) sponsorship orders under section 45;

(g) directions to persons or Institutions or facilities in
whose care the child is placed regarding care, protection
and rehabilitation of the child, including directions
relating to immediate shelter and services such as
medical attention; psychiatric and psychological support
including need-based counselling, occupational therapy
or behavior modification therapy, skill training, legal
aid, educational services and other developmental
activities, as required, as well as follow-up and
coordination with the District Child Protection Unit or
State Government and other agencies;

(h) declaration that the child is legally free for adoption
under section 38.

(2) The Committee may also pass orders for–

(i) declaration of fit persons for foster care;

(ii) getting after care support under section 46 of the
Act; or

(iii) any other order related to any other function as may
be prescribed. Any other function as may prescribed.

11. For the purpose of chapter 5 of the Act of 2015 and
chapter 5 of the Rules, it is clear that any child who is in
need of care and protection is required to be produced
before the committee during the working hours at its place
and beyond working hours before members as per duty.
What is supposed to be done by the committee has been
specified under the Act as well as the in the Rules. Thus

CM (M) 1140/2018 Page 18 of 23
primary function of the committee starts when child is
produced before them or otherwise in case any intimation
has been received by the CWC, on verification by the
Protection Officer or Probationary Officer or by own visit,
after passing the order by all three members. Thus the
powers as conferred under the Act and the Rules to initiate
the proceedings and to pass the order have been specified
under section 37 and the power can be exercised to the
extent as indicated. No other power can be exercised by the
members of the CWC with respect to a child who is not in
conflict with law and in need of care and protection, not
brought before them.

12. In the context of aforesaid legal position, arguments
advanced by the counsel for the respondent referring the
provisions of Commission for SectionProtection of Child Rights Act,
2005 and as per United Nations Conventions is required to
be adverted. Counsel referring the said convention urged
that Madhya Pradesh High Court vide order dated
20.3.2014 has accepted the applicability of those
conventions but on perusal of the order, it is apparent that
Chief Justice of the Madhya Pradesh High Court has
directed for circulation of the ‘Child Access and Custody
Guidelines and pertaining Plan for guidance, among the
Additional District Judges, Family Court Judges and
marriage counselors in the State of Madhya Pradesh.
Whereby it is clear that High Court was conscious enough
that said convention ought to be followed by the competent
court of law to which the power has been conferred to
declare guardian, therefore said convention is required to
be observed by those Courts or Forums having competence
conferred to them under the law. SectionUnder the Act of 2015 and
the Rules framed thereunder, CWC is not conferred with a
power to give the custody of the child. It is a case wherein
due to dispute in between the husband and wife,
proceedings are pending between them, however CWC,
Indore cannot direct visitation right to meet the child either
to husband or to wife in the facts of the case. In the said
context the provisions of the Guardians and SectionWards Act,

CM (M) 1140/2018 Page 19 of 23
1890 are relevant whereby as per Sectionsection 7, the court may
make an order as to guardianship on submitting an
application by a person as specified in Sectionsection 8 before the
competent Court having jurisdiction to entertain such an
application in a form as prescribed. As per Sectionsection 7 the
Court may have power to decide who would be the
guardian of the child. Similarly in the SectionFamily Courts Act,
as per Sectionsection 7(1)(b), explanation (g) the proceedings may
be brought before the Family Court in a suit or proceeding
asking guardianship of the child or the custody or access
to any minor.

13. Thus, it is apparent that under the provisions of
Guardians and SectionWards Act as well as under the provisions of
SectionFamily Courts Act, the powers are conferred to the Court of
competent jurisdiction who shall have powers to decide
those application and in the said context if the letter of the
High Court dated 20.3.2014 is interpreted applying the
United Nations Conventions then it is rightly communicated
to the Courts having power to decide guardianship or to
give visitation right to or access to the minor child, therefore
argument advanced by the counsel for respondent No. 5
asking benefit of convention through CWC, Indore is
misplaced and repelled.

14. In view of the discussions made hereinabove, it can
safely be concluded that under the provisions of Juvenile
Justice(Care and SectionProtection of Children) Act, 2015 and
Juvenile Justice (Care and Protection of Children) Rules,
2016, Child Welfare Committee does not confer power to
give custody of a child taking it from mother and give to
the father in the manner as done by the CWC, Indore in
the present case. It is seen that CWC, Indore is passing
orders granting custody of the children and one of such
order has been brought to the notice of this Court dated
25.5.2015. In the said case also the proceedings were
pending before the Family Court for custody of the child
but CWC usurp the jurisdiction and during pendency of
those proceedings directed custody of the child to the
mother. Similar is the position in the present case wherein

CM (M) 1140/2018 Page 20 of 23
also as per Annexure P-2, an application for custody of the
child has also been filed before the Family Court but
during pendency of the said application, respondent No. 5
applied to the CWC whereon the order of the visitation
right has been passed directing to bring the child in the
office of CWC, Indore on every Friday between 10:00 a.m.
to 5:00 p.m. to the petitioner. In my considered opinion the
aforesaid exercise of powers by the CWC, Indore is not in
conformity with the Act and the Rules and also contrary to
the powers conferred under the other law applicable for
the time being in force, therefore the order impugned is set
aside.

15. As per the discussions made hereinabove, a note of
caution is to be taken by the Court that such power should
not be exercised by the other CWC functioning in the State
of M.P. The aforesaid note of caution fortifies from the fact
that the members appointed by the State Government either
Chairman or Members may not possess legal education, not
having acquaintance with law and they are also not well
versed with the provisions of law, however it is necessary to
bring to the notice of all the CWC, that what powers are
required to be exercised by them. In this respect it is
directed that they may exercise the powers within the ambit
of the provisions of the Juvenile Justice (Care and
SectionProtection of Children) Act, 2015 and the Rules framed
therein and not beyond the same. It is directed that custody
of child cannot be given by them in the facts discussed
above, therefore the order passed today by this Court is
required to be circulated to all the CWC of the State of M.P.

directing them that visitation right or custody as guardian
should not be invoked by them assuming the jurisdiction in
this regard.” (Emphasis supplied)

which also persuades this Court to hold that no power other than that
conferred on the Child Welfare Committee in terms of Section 37 of
the Juvenile Justice (Care and SectionProtection of Children) Act, 2015 can

CM (M) 1140/2018 Page 21 of 23
be exercised by it which powers can also be exercised only to the
extent as indicated thereby.

30. It is apparent thus that in terms of provisions of the Guardians
and SectionWards 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 SectionArticle 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

CM (M) 1140/2018 Page 22 of 23
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.

33. In view thereof, the impugned order dated date 14.09.2018 of
the Child Welfare Committee (CWC), District South is set aside.
However, the same shall not preclude the respondent no.2 from
seeking visitation rights qua the minor child of the petitioner and the
respondent no.2 in accordance with law before the Family Court
concerned.

34. The petition is disposed of accordingly.

ANU MALHOTRA, J.

th
SEPTEMBER 06 , 2019/vm

CM (M) 1140/2018 Page 23 of 23

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