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Mrs Nidhi Luharuwalla vs State Of Karnataka on 7 February, 2019

1

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

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