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Shiras Shamsuddin vs State Of Kerala on 22 October, 2019

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.
——————————————-
W.P.(C)No. 21022 of 2019
———————————————-
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 SectionWards 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 SectionProtection 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 SectionProtection of Children) Act, 2015. Section 2(14) of

the Juvenile Justice (Care and SectionProtection 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 SectionProtection 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 SectionProtection 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 SectionFamily 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 SectionWards 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 SectionProtection 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

SectionProtection 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.

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