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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 7TH DAY OF FEBRUARY 2019
BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.1372 OF 2019 (GM-RES)
BETWEEN:
MRS. NIDHI LUHARUWALLA
W/O SANDIP LUHARUWALLA
AGED ABOUT 45 YEARS
R/AT. FLAT # 605, EBONY BLOCK
RAHEJA RESIDENCY
KORAMANGLA, 3RD BLOCK
BENGALURU-560034.
… PETITIONER
(By Ms. LAKSHMY IYENGAR, SR. ADV., A/W
Mr. VARUN VEDACHALA, ADV.)
AND:
1. STATE OF KARNATAKA
VIDHANA SOUDHA
BANGALORE-560001
REP. BY THE PRINCIPAL SECRETARY.
2. CHILD WELFARE COMMITTEE-1
(MAKKALA KALYANA SAMITHI-1)
BENGALURU URBAN
HOMBEGOWDA NAGAR
BENGALURU-560029
REP. BY ITS CHAIRMAN.
3. MR. SANDIP LUHARUWALLA
S/O LATE RAMAVATAR LUHARUWALLA
AGED ABOUT 50 YEARS
R/AT LOTUS 003, TOWER 6
ADARSH PALM RETREAT
SARJAPUR OUTER RING ROAD
DEVARABISANAHALLI
2
BEHIND INTEL
BENGALURU-560103.
… RESPONDENTS
(By Mr. Y.D. HARSHA, LEARNED AGA FOR R1
Mr. S. MANJU, ADV., FOR R2
Mr. RAJEV PANDIT (PARTY-IN-PERSON)
Mr. G.M. SRINIVASA REDDY, ADV., R3)
—
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS PERAINING TO THE MATTER IN G.F.NO.08/2018-19
[ANNEXURE-F] PENDING ADJUDICATION BEFORE THE R-2 ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
Smt.Lakshmy Iyengar, Senior counsel along with
Sri.Varun Vedachala, learned counsel for the petitioner.
Sri.Y.D.Harsha, learned Additional Government
Advocate for respondent No.1
Sri.S.Manju, learned counsel for the respondent
No.2.
Sri.Rajeev Pandit, party in person.
Sri.G.M.Srinivasa Reddy, learned counsel for
respondent No.3.
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2. The writ petition is admitted for hearing. With
consent of the parties, the same is heard finally.
3. On admitted facts, the question of law which
arises for consideration in this writ petition is whether
during the pendency of the proceeding, seeking custody
of the minor child under the Guardians and Wards Act,
1890 (hereinafter referred to as ‘the Guardians Act’ for
short) pending before the Family Court, the Child
Welfare Committee-1 (hereinafter referred to as ‘the
Committee’ for short) constituted under the Juvenile
Justice (Care and Protection of Children) Act, 2015
(hereinafter referred to as ‘the Act’ for short), can in
purported exercise of powers under Section 37(1)(d) of
the Act, handover custody of a minor to either of the
parent who are parties to the proceeding before the
Family Court.
4. Before proceeding to deal with the issue
involved in this petition, it is apposite to deal with the
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application for impleadment filed by one Mr.Rajiv Pandit
who claims to be a child right activist. When a query
was put to Mr.Pandit who appeared in person and is
resident of Bhopal as to whether he is in any manner
related either to the parent or to the child, the answer
was in negative. Admittedly, aforesaid Mr.Pandit is
neither a member of the Committee nor does hold any
office under the provisions of the Act and Rules framed
thereunder. Thus, the proposed intervener appears to
have no locus in the matter, as by stretch of
imagination, he can be said to be an aggrieved person.
None of his legal rights are either involved nor have
been infringed in any manner by this proceeding which
arises out of an order passed by the Committee under
the Act. In the application filed by aforesaid Mr.Pandit,
it is stated that he is a public spirited citizen and since
last more than 3½ years working as child right activist
across India. However, aforesaid Mr.Pandit has not
annexed any documents in support of his activities as a
child right activist. It is pertinent to mention here that
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in paragraph 3 of the application, the aforesaid
Mr.Pandit has made averments against the petitioner
with regard to her character and the affidavit in support
of the application merely states that contents of the
application are true and correct to his knowledge and
belief. The impleading applicant has not disclosed the
source of information and has made reckless averments
in the application. Therefore, in the considered opinion
of this Court, he is an officious intervener and appears
to be a busy body. Therefore, the impleading
application is sans substance. Accordingly, the same is
dismissed.
5. Admittedly, the petitioner and respondent No.3
were married on 20.11.1999. Out of the wedlock, a
male child namely, Dev was born on 22.02.2007.
Admittedly, the petitioner has filed a petition under
Sections 7 and 25 of the Guardians Act before the
Principal Judge, Family Court, Bengaluru, on or about
01.07.2017 in which she has sought the custody of the
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minor son namely, Dev. In the aforesaid proceeding, on
27.04.2018, the Family Court granted visitation right to
respondent No.3 for summer vacation. However,
despite there being any order, the petitioner in order to
ensure that the child namely Dev is not deprived of his
father’s affection, handed over the custody of the child
to respondent No.3 for a period from 27.12.2018 to
01.01.2019. It appears that on the day when the
petitioner handed over the custody of the child to
respondent No.3, he made a complaint to the
Committee in which it was allegedly stated that the child
is scared of the petitioner and he feels safe with
respondent No.3.
6. Thereupon, the Committee initiated the
proceedings on 27.12.2018 and on 03.01.2019 the
petitioner was also summoned. The Committee in the
proceeding dated 03.01.2019 recorded the fact that
though it does not have jurisdiction to decide custody
matter, yet when the child seeks care and protection
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under the Act with a complaint in writing, the
Committee is compelled to hear the child and provide
appropriate temporary relief as a precautionary
measure in the interest of the child. In the presence of
petitioner and respondent No.3, and taking into account
the statement made by the child, the respondent No.3
was given the custody of the child. In the aforesaid
factual background, the petitioner has approached this
Court.
7. Learned Senior counsel for the petitioner
submits that the Committee does not have any power to
give custody of the child, taking it from one of the
parent and giving it to another parent. In support of
her submissions, learned Senior counsel for the
petitioner has placed reliance on the decisions in the
cases of ‘PRIYA YADAV Vs. STATE OF M.P. AND
ORS.’ 2017(1) JLJ 324, ‘Dr.SHARMISTHA KAR
PUROKAYASTHA Vs. STATE OF WEST BENGAL
ORS.’ IN W.P.No.21904 (2) of 2010 (Calcutta High
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Court), ‘SEVA CHAKKARA SAMAJAM Vs. THE
CHAIRMAN, CHILD WELFARE COMMITTEE AND
ORS.’ (2012) 5 LW 293 AND ‘SANUMOL, C.C. AND
ORS. Vs. SUNNY’, P.C.’ ILR 2015 (3) KERALA 1072.
It is further submitted that the instant writ petition be
disposed of with a direction to the Family Court to hand
over the custody of the child to the petitioner and to
decide the issue with regard to the custody of the child.
On the other hand, learned counsel for respondent No.3
submitted that the child may be interviewed by this
Court and thereafter, appropriate orders may be
passed. Attention of this Court has also been invited to
Section 29(2) of the Act with regard to the powers of
the Committee. It is urged that the respondent No.3
has also filed an application seeking custody of the child
before the Family Court and the Family Court be
directed to decide the issue with regard to custody of
the child.
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8. Learned counsel for respondent No.2 namely
the Committee has invited the attention of this Court to
Sections 2(14), 3 and 37(1)(d) of the Act and has
submitted that the Committee has the power to place
the child with fit person for a long term or temporary
care. It is further submitted that the impugned order
has been passed on the basis of the meticulous
appreciation of material available on record and the
same does not suffer from any infirmity. In support of
her submissions, learned counsel for the respondent
No.2 has placed reliance on the decision of the Hon’ble
Supreme Court in the case of ‘RE: EXPLOITATION OF
CHILDREN IN ORPHANAGES IN THE STATE OF
TAMIL NADU Vs. UNION OF INDIA AND OTHERS’
in W.P. (Criminal) No.102/2007.
9. I have considered the submissions made by the
learned counsel for the parties and perused the record.
From the statement of objections and reasons appended
to the Act, it is evident that Article 15 of the
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Constitution of India confers on the State powers to
make special provisions for children. Articles 39(e),
39(f), 45 and 47 make the State responsible for
ensuring that all needs of children are met and their
basic human rights are protected. The United Nations
Convention on the Rights of Children ratified by India,
on 11.12.1992 requires the State parties to undertake
all appropriate measures with regard to the welfare of
the child. Before proceeding further, it is apposite to
take note of the relevant provisions of the Act namely
Sections 2(14), 29(2) and 37(1)(d) of the Act. Section
2(14) defines the expression ‘child in need of care and
protection’, which reads as under:
“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
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(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 …
29(2) Where a Committee has been
constituted for any area, such Committee
shall, notwithstanding anything 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
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proceedings under this Act relating to children
in need of care and protection.
37(1)(d) placement of the child with fit person
for long term or temporary care.”
10. In the backdrop of aforesaid statutory
provision, facts of the case in hand may be examined.
In the instant case, on the basis of the complaint made
by the child, the Committee formed an opinion that the
child is in need of care and protection. Thereafter, the
Committee had to pass an order under Section 37(1)(d)
of the Act by making an enquiry that the child before
the Committee is a child in need of care and protection
and may on consideration of social investigation report
submitted by the Child Welfare Officer and taking into
account the child’s wishes in case the child is sufficiently
mature, could have placed the child with a fit person.
However, the powers conferred on the Committee has
to be exercised by the Committee in respect of the
proceeding initiated under the Act only. It is well
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settled in law that when a statute gives a right and also
provides for a forum for adjudication of the rights, the
remedy has to be sought only under the provisions of
that Act and the law does not permit any other Court,
Tribunal, Authority or Forum to usurp the jurisdiction on
any ground whatsoever. (See ‘JAGMITTAR SAIN
BHAGAT AND OTHERS Vs. DIRECTOR, HEALTH
SERVICES, HARYANA AND OTHERS’ (2013) 10 SCC
136. The Committee cannot be permitted usurp the
jurisdiction of the competent Court exercising powers
under the provisions of the Guardians Act. Admittedly,
the proceeding under the Guardians Act is pending
where the issue with regard to the custody of the minor
is pending adjudication. In the instant case, the
Committee, on the basis of the communication sent by
the child to the Committee, has taken the custody from
the petitioner and has handed over the custody of the
child to respondent No.3. Under the provisions of the
Guardians Act, the Court is empowered to make an
order under Section 7 of the aforesaid Act. The said
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jurisdiction conferred by law cannot be taken away by
the Committee which is a statutory body. In the fact
situation of the case, even if the Committee was of the
opinion that the child was in need of care and
protection, it ought to have referred the matter for
consideration before the Family Court where the issue
with regard to the custody of the minor was pending
consideration. The usurpation of jurisdiction by the
Committee in a matter which is sub-judice before the
Court of competent jurisdiction under the Guardians Act
cannot be sustained in the eye of law. The impugned
order passed by the Committee dated 03.01.2019 is
quashed and set aside. It is pertinent to mention here
that even in the absence of any order with regard to the
custody to respondent No.3, the petitioner in good faith
had handed over the custody of the child to the
respondent No.3. However, respondent No.3 on expiry
of the vacation ought to have handed over the custody
of the minor to the petitioner. However, apparently at
the instance of respondent No.3, the minor child has
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made a complaint to the Committee and thereupon the
impugned order has been passed which has already
been quashed by this Court. Therefore, the respondent
No.3 is directed to handover the custody of the minor
namely Dev to the petitioner who is the mother of the
child and with whom the minor child was residing prior
to 21.12.2018 on or before 11.02.2019 before the
Family Court. Sofar as submission made by learned
counsel for respondent No.3 that this Court should
interview the child and take a decision is concerned,
suffice it to say that since the Family Court is in the
seisin of the matter, therefore, it is not necessary for
this Court to interview the child as the scope of the
present proceeding is confined to examination of the
order passed by the Committee. The Family Court is
directed to decide the issue of custody of the minor
child expeditiously preferably within a period of 3
months from the date of receipt of certified copy of the
order passed today. Needless to state that the parties
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shall co-operate with the Family Court for early decision
of the proceeding.
Accordingly, the petition is disposed of.
Sd/-
JUDGE
RV