Allowed

Kishor Krishna.S v. State of Kerala

Kerala HC9 Dec 2019WP(C)/25693/2019

Case brief

AI extract

What is this about?

The Kerala High Court held the Child Welfare Committee (CWC) lacked jurisdiction to initiate custody proceedings as the dispute was marital, not care-and-protection. The CWC's order removing custody was quashed for being contrary to the court's interim stay; however, custody was permitted to remain with the mother due to credible sexual abuse allegations and an FIR registered against the child's u

What did the court decide?

Writ petition allowed; CWC proceedings and orders quashed; custody permitted with mother subject to final Family Court orders.

Kishor Krishna.S Vs State of Kerala — Child Custody and Guardianship | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941

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WP(C).No.25693 OF 2019(J)

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PETITIONER:

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KISHOR KRISHNA.S AGED 32 YEARS S/O.SASIDHARAN, RESIDING AT KISHOR BHAVAN, KUDAVATOOR.P.O, KOTTARAKKARA, KOLLAM DISTRICT

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BY ADV. SRI.N.SUNIL JOSEPH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001

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2 CHILD WELFARE COMMITTEE KOLLAM DISTRICT, GOVERNMENT CHILDREN'S HOME, BEACH ROAD, KOLLAM, PIN 691001 REPRESENTED BY ITS CHAIRMAN

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3 SHYMA RAJ SHIMA VILASAM, VAKKANAD.P.O, NEDUMONCAVU, KOLLAM, KOLLAM DISTRICT, PIN 691509

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4 ADDL R4 THE STATION HOUSE OFFICER, POOYAPALLY POLICE STATION, POOYAPALLY (PO), KOLLAM DISTRICT, PIN - 691537

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ADDL R4 IMPLEADED AS PER ORDER DATED 11/10/2019 IN IA 1/9 IN WP(C)25693/19

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R1,R2 & R4 BY ADV.SRI.VINOD, GOVERNMENT PLEADER

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R3 BY ADV. SRI.ALEXANDER GEORGE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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W.P.(C) No.25693 of 2019

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Dated this the 9^th day of December, 2019

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J U D G M E N T

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Ext.P3 order passed by the second respondent, the

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Child Welfare Committee (CWC) constituted under Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2017 (the Act) for Kollam District, is under challenge in the writ petition.

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The facts relevant as discernible from the materials on record are the following. The petitioner is the father of a girl child aged 5 years. The third respondent is the mother of the child. The relationship between the petitioner and the third respondent is estranged and they are living separately. The third respondent has also instituted a proceedings before the Family Court, Kottarakkara, against the petitioner, for dissolution of her marriage with the petitioner on various grounds, and the same is pending. The child has been with the petitioner ever since the third respondent left the company of

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the petitioner. On 17.09.2019, the third respondent preferred a complaint before the CWC seeking appropriate orders for the custody of the child, stating among others, that the petitioner is an alcoholic; that the child needs the care and protection of the mother; that the child wants to live with her and that she is prevented from taking custody of the child. Notice was issued to the petitioner by CWC on the said complaint and when the petitioner appeared before the CWC on 18.09.2019 on notice, he was directed to produce the child before the CWC on 19.09.2019. On 19.09.2019, the petitioner appeared before the CWC again with the child. On 19.09.2019, after hearing both the petitioner and the third respondent, the CWC called for a social investigation report and the child was sent back with the petitioner. Thereupon, the CWC received the social investigation report to the effect that the child wished to stay with her mother. On receipt of the said report, in terms of Ext.P3 order, the CWC directed the petitioner to appear before them with the child on 26.09.2019. On 26.09.2019, as the petitioner did not produce the child, the Station House Officer

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concerned was directed to produce the child before the CWC on 27.09.2019. The Station House Officer of the concerned police station has not produced the child before the CWC on 27.09.2019 as directed. In the circumstances, on 27.09.2019, the CWC has revoked its earlier order granting custody of the child to the petitioner and directed the Station House Officer concerned to take custody of the child from the petitioner and entrust the child to the custody of the third respondent.

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In the meanwhile, this writ petition was instituted by the petitioner on the ground mainly that the child involved in the matter is not a child in need of care and protection, as defined under Section 2(14) of the Act and the CWC has, therefore, no jurisdiction to continue the proceedings. On 26.09.2019, this court stayed further proceedings pursuant to Ext.P3 for ten days. In the light of the said interim order, the order dated 27.9.2019 was not enforced.

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One of these days, it was submitted by the counsel for the petitioner, that though he had filed a memo for bringing up the matter for extension of the interim order dated

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26.9.2019, the matter was not listed. The matter was thereafter listed for hearing on 11.10.2019, on which day the interim order was extended till 15.10.2019. Though the matter was listed on a few days thereafter at the instance of the learned counsel for the petitioner, the same could not be taken up for want of time. On 28.10.2019, it was pointed out by the learned counsel for the petitioner that ignoring the interim order passed by this court, the CWC passed Ext.P6 order on 9.10.2019 directing the Station House Officer concerned to take custody of the child and produce the child before the CWC on the same day itself on the premise that the period of the interim order passed by this court in this matter had expired. It was also pointed out by the learned counsel that when the child was produced before the CWC in execution of Ext.P6 order, CWC directed the child along with her mother to be admitted in a shelter home. In the light of the said submissions made by the learned counsel for the petitioner, the Chairman of the CWC was directed to file an affidavit before this court explaining as to how despite the interim order passed by this court on

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26.09.2019, the custody of the child was caused to be taken from the father. The file relating to the entire proceedings of the second respondent was also directed to be produced.

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On 1.11.2019, when the matter was taken up,

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the file of the proceedings before the CWC was made available. A copy of the affidavit stated to have been filed before this court in terms of the direction issued by this court on 28.10.2019, was also made available to the court as the original of the affidavit was not found on the file. The learned counsel for the petitioner as also the learned Government Pleader were heard on that day.

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The registry reports that the original of the affidavit handed over to the court at the time of hearing was though taken back by the office of the Advocate General for curing the defects noted therein, the same was not resubmitted after curing the defects. In the circumstances, the copy of the affidavit handed over to the court which contains the duly attested signature of the Chairman of the CWC has been taken to file.

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The file made available indicates that the child

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is stated to have disclosed to the Counsellor attached to the shelter home on 9.10.2019, on being sent over to the shelter home by the CWC pursuant to Ext.P6 order, that she was abused sexually by the uncle of the petitioner named therein. It is also seen that she was thereafter taken for medical examination to the hospital and a crime was registered against the uncle of the petitioner under Sections 376(2)(f), 376(2)(i) of the Indian Penal Code and Sections 3(a), 3(b), 4, 5(m), 5(n) and 6 of the Protection of Children from Sexual Offences Act, 2012.

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The learned counsel for the petitioner forcefully contended that the child involved in this matter is not a child in need of care and protection as defined under Section 2(14) of the Act and the CWC has, therefore, no jurisdiction to decide the question relating to the custody of such a child. According to the learned counsel, it is a case where the third respondent should have approached the Family Court for custody of the child and the entire proceedings of the CWC is an abuse of the provisions of the Act. It was also pointed out by the learned

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counsel for the petitioner that at any rate, it is highly inappropriate for the CWC to have ignored the proceedings before this court and passed Ext.P6 order removing the custody of the child from the petitioner and entrusting her custody to the third respondent which is against the spirit of the interim order passed by this court. It was also contended by the learned counsel for the petitioner that a false complaint was obtained by the CWC from the third respondent stating that the child is being sexually abused by the uncle of the petitioner and kept in the file after Ext.P6 order, to justify the said order during the pendency of this writ petition. It was also pointed out by the learned counsel that it is to justify the lodging of such a complaint that the child was made to say that she was abused by the uncle of the petitioner before the counsellor attached to the shelter home. It was also pointed out by the learned counsel for the petitioner that it is at the instance of the CWC that a case has been registered against the uncle of the petitioner. According to the learned counsel, the said case is a false case.

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Per Contra, the learned Government Pleader

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submitted that the child involved in this matter would certainly fall within the scope of the definition ` Child in need of care and protection' and that the CWC cannot, therefore, be found fault with for entertaining the complaint of the third respondent. It was also pointed out by the learned Government Pleader that Ext.P6 order was passed since the CWC has received a complaint from the mother of the child in the meanwhile that the child is being sexually abused and it was, therefore, felt that the child has to be removed from the custody of the father to prevent further abuse of the child.

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The following are the questions arising for consideration in the matter :

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(1) Whether the CWC was justified in initiating proceedings in respect of the custody of the child involved in this matter under the Act on the basis of the complaint lodged by the third respondent?

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(2) Whether the CWC was justified in passing Ext.P6 order when the writ petition challenging Ext.P3 order was

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pending before this court?

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It is beyond dispute that the CWC gets jurisdiction to decide questions relating to the custody of a child only if the child is a child in conflict with law or the child is a child in need of care and protection as defined under Sections 2(13) and 2(14) of the Act. In all other cases, the issues relating to custody are to be decided by the Family Court exercising powers under the Guardians and Wards Act. In the case on hand, it is beyond dispute that the CWC was proceeding as if the child involved is a child in need of care and protection. The question to be seen, therefore, is as to whether the child involved is a child in need of care and protection. Section 2(14) of the Act defines “child in need of care and protection” thus:

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(14) "child in need of care and protection" means a child-

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i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or

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(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

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of the child or not) and such person -

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(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

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(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or

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(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

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(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

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(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 safety and well-being of the child; or

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(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or

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(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

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(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

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(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or

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(x) who is being or is likely to be abused for unconscionable gains; or

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(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or

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(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;

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Ext.R2(a) is the complaint preferred by the third respondent before the CWC. The essence of the complaint of the third respondent is that the petitioner is an alcoholic; that the child needs the care and protection of the mother; that the child wants to live with her and that she is prevented from taking custody of the child. According to me, on the basis of Ext.R2(a) complaint, the CWC was not justified at all in initiating proceedings under the Act and as rightly pointed out in the writ petition, the dispute raised was only a dispute between the estranged spouses in a failed marriage for custody of their child which should have been dealt with by the Family Court under the Guardians and Wards Act. Question (1) is answered accordingly.

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In the affidavit filed by the Chairman in charge

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of the CWC, it is stated that the third respondent has filed a

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complaint on 26.09.2019 alleging that the child was subjected to sexual abuse. A copy of the complaint was produced along with the affidavit as Annexure R2(f). It is also stated in the affidavit that the order dated 09.10.2019 was passed in the best interest of the child as it was found that the child was required to be rescued from being sexually exploited. It is admitted in the affidavit that a case has been registered against the uncle of the petitioner as instructed by the CWC. Paragraphs 7 to 9 of the affidavit read thus:

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The Social investigation reports stated that the allegations stated by the writ petitioner false. The writ petitioner was directed to produce the child on 26.09.2019, on which day he did not produce the child. On that day another complaint was received from Shyma Raj that her child was subjected to abuse. A true copy of the complaint dated 26.09.2019 is produced herewith and may be marked Annexure R2(f) . On 27.09.2019 the order directing to defer the proceedings was received. The direction was to defer by 10 days, the order dated 26.09.2019. The Child Welfare Committee posted the case on 09.10.2019.

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In the Writ Petition, many material facts are suppressed. The Child Welfare Committee adjourned the case to 09.10.2019. As on 09.10.2019, the Child Welfare Committee in order to protect the best interest of the child

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directed the child along with its mother to be admitted to QSS Shelter Home. The Child Welfare Committee considered it emergent to rescue the child from being sexually exploited. The Committee considered it their statutory duty more so in the absence of any interdiction to proceed with the statutory function entrusted to it.

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On 10.10.2019 the child was subjected to medical examination, tenderness of the private part of the five year old girl child was observed by the Doctor. A true copy of the Medical Record of the Government Victoria Hospital, Kollam is produced herewith and marked as Annexure R2(g) . In Annexure R2(g) the Government Doctor has concluded that there is no evidence of vaginal penetration but there is tenderness over the vaginal area”.Upon such medical report. and Annexure R2(i), case was directed to be registered against the accused by telephonic message. Any public servant when has knowledge about the Commission of a cognizable offence is obliged to report to the Police Officers. A true copy of the FIR in Crime No. 1660/2019 of Pooyappally Police Station is produced herewith and marked as Annexure R2(h) .”

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The explanation offered for having passed Ext.P6 order, even when the matter was seized of by this court is, therefore, the complaint stated to have been preferred by the third respondent on 26.09.2019. In so far as the matter was seized of by this court, even assuming that a complaint in the nature of one referred to in the affidavit is received by the CWC

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warranting immediate action, and even assuming that the interim order passed by this court was not technically in force, according to me, it was inappropriate for the CWC to pass an order in the nature of Ext.P6. The CWC was obliged to bring the circumstances in the nature of the alleged complaint, to the notice of this court and orders in the nature of Ext.P6 are certainly contrary to the discipline which bodies like CWC are bound to follow in the fitness of things to uphold the majesty of judicial institutions.

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Be that as it may. It is seen from the materials on record as also from the file of the CWC which was made available that the orders passed by the CWC on 26.09.2019, 27.09.2019 and 09.10.2019 do not refer to the complaint stated to have been preferred by the third respondent on 26.09.2019. Those orders only refer to the social investigation reports dated 23.09.2019 and the report of the counsellor attached to the CWC. The aforesaid reports prepared after interacting with the child do not also say anything about the sexual abuse. If the complaint of the third respondent stated to have been preferred

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on 26.09.2019 was one actually preferred on 26.09.2019, having regard to its contents, the same would have been certainly referred to in the orders dated 26.09.2019, 27.09.2019 and 09.10.2019. As noted, the complaint is not referred to in any of the said orders. Further, the original of Ext.R2(f) which is made available indicates that though it contains an endorsement purported to have been made on 26.09.2019, the date in the second page of the complaint is seen corrected by overwriting. It refers to the interim order passed by this court in this matter on 26.09.2019 and its expiry. Going by the contents of the complaint, the same can never be one filed on 26.9.2019. As the complaint is not one referred to in any of the orders passed upto 9/10/2019, same can only be a complaint, if at all received from the third respondent, after 9/10/2019. The endorsement in the complaint as available in the file of the CWC to indicate its receipt is therefore, prima facie, a false endorsement. In the light of the said finding, it has to be held that even the statement in the affidavit filed by the Chairman of the CWC that the complaint has been received by the CWC on

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26.9.2019 is also a false statement. Similarly the statement in the affidavit that Ext.P6 order was passed with a view to rescue the child in the light of the complaint allegedly filed by the third respondent on 26.9.2019 is also a false statement, as prima facie the complaint alleging sexual abuse is found to have been received only after 9/10/2019. If that be so, there was absolutely no justification for the CWC to issue an order in the nature of Exhibit P6 on 9/10/2019. Question (2) is answered accordingly.

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Even though it is found that the complaint lodged by the third respondent was not one that should have been entertained by the CWC and that the CWC ought not have passed the order dated 9.10.2019, in so far as it has come out that a case is registered against the uncle of the petitioner alleging that he has sexually abused the child having regard to the circumstances in which she is placed, I do not think that the custody of the child can be entrusted back to the petitioner. In the peculiar facts of this case, I am of the view that the mother of the child can be permitted to have the custody of the

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child subject, of course, to the right of the petitioner to move the Family Court for appropriate orders for the custody of the child.

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In the result, the writ petition is disposed of and the proceedings initiated by the CWC on the basis of Ext.R2(a) complaint, and all actions taken thereto are quashed. However, the third respondent is permitted to keep the custody of the child subject to the right of the petitioner to move the Family Court for custody under the Guardians and Wards Act. It is made clear that if any proceedings is instituted by the petitioner before the concerned Family Court, that court shall take a decision as regards the custody of the child having regard to the facts disclosed in this matter as also the developments in the investigation of the crime registered against the uncle of the petitioner at the instance of the CWC. The Registrar, Vigilance of this court is directed to conduct a preliminary enquiry into the offences referred to in clause (b) of sub section (1) of Section 195 of the Code of Criminal Procedure, if any committed, or in relation to this proceedings

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and submit a report as provided for under Section 340 of the Code of Criminal Procedure. The proceedings would be deemed

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to be pending for the limited purpose of further action under Section 340 of the Code.

Sd/-

P.B.SURESH KUMAR

JUDGE

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE OBJECTION DATED 22.09.2019 OF THE PETITIONER

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EXHIBIT P2 TRUE COPY OF THE LETTER DT.24.09.2019 ISSUED FROM THE L.P.G.S ENGLISH MEDIUM SCHOOL, VELIYAM, KOTTARAKKARA

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EXHIBIT P3 TRUE COPY OF THE PROCEEDING NO.CWC/KLM/6524/2019 DT 23.09.2019 OF THE SECOND RESPONDENT

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EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 09.10.2019

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EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 09.10.2019 ISSUED FROM THE POOYAPPALY POLICE STATION

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EXHIBIT P6 TRUE COPY OF THE ORDER NO.CWC/KLM/6524/19 DATED 09.10.2019 OF THE SECOND RESPONDENT

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(a) A TRUE COPY OF THE COMPLAINT DATED 17.09.2019.

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EXHIBIT R2(b) A TRUE COPY OF THE OBJECTION DATED 19.09.2019

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EXHIBIT R2(c) TRUE COPY OF THE REPORT DATED NIL SUBMITTED ON 19.09.2019 OF THE COUNCILOR ATTACHED TO THE CHILD WELFARE COMMITTEE

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EXHIBIT R2(d) TRUE COPY OF THE SOCIAL INVESTIGATION REPORT SUBMITTED BY BINU GEORGE, COORDINATOR CHILD LINE SUB-CENTER, KOLLAM

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EXHIBIT R2(e) TRUE COPY OF THE SOCIAL INVESTIGATION REPORT SUBMITTED BY JESSY THOMAS, CHILD RESCUE OFFICER, CHILD LINE RURAL

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EXHIBIT R2(f) TRUE COPY OF THE COMPLAINT DATED 26.09.2019

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EXHIBIT R2(g) TRUE COPY OF THE MEDICAL RECORD OF THE GOVERNMENT VICTORIA HOSPITAL, KOLLAM EXHIBIT R2(h) TRUE COPY OF THE FIR IN CRIME NO. 1660/2019 OF POOYAPPALLY POLICE STATION EXHIBIT R2(j) TRUE COPY OF THE TRANSCRIPT OF THE INTERVIEW DATED 13.10.2019

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//TRUE COPY// PA TO JUDGE

Kishor Krishna.S v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kishor Krishna.S v. State of Kerala

Case brief

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What did the court decide?

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