Quashed

Shaiju S. v. the Child Welfare Committee

Kerala HC17 Sept 2021RPJJ/6/2021

Case brief

AI extract

What is this about?

The Court held that the Child Welfare Committee erred by granting interim custody to the mother without an opportunity to the father, interfering in a dispute already pending before the Family Court. The Committee lacks jurisdiction to resolve disputes between parents unless they are incapacitated.

What did the court decide?

The order dated 22.4.2021 of the Child Welfare Committee granting custody to the mother was set aside.

Shaiju S. Vs the Child Welfare Committee — Child Custody and Guardianship | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

¶4

¶5

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

¶6

FRIDAY, THE 17^TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943 RPJJ NO. 6 OF 2021

¶7

REVISION PETITION FILED UNDER SECTION 102 OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 AGAINST THE ORDER NO.CWC/KLM/7983/7984/21 DATED 22.4.2021 ISSUED BY

¶8

THE CWC, KLM

¶9

REVISION PETITIONERS:

¶10

1 SHAIJU S. AGED 36 YEARS S/O. SHARNGADHARAN, SHAIJU BHAVAN, NELLIKKUNNU, MURIKKAMAN, NILAMEL P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT.

¶11

2 KRISHNA AGED 8 YEARS D/O. SHAIJU S., (MINOR), SHAIJU BHAVAN, NELLIKKUNNU, MURIKKAMAN, NILAMEL P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT, REPESENTED HY HER FATHER SHAIJU S., THE IST PETITIONER.

¶12

3 ADITHYAN AGED 5 YEARS S/O. SHAIJU S., (MINOR), SHAIJU BHAVAN, NELLIKKUNNU, MURIKKAMAN, NILAMEL P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT, REPESENTED HY HIS FATHER SHAIJU S., THE IST PETITIONER.

¶13

RPJJ No.6/2021

¶14

-:2:-

¶15

BY ADVS. D.KISHORE SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA) SMT.ARYA JOSEPH

¶16

RESPONDENTS:

¶17

1 THE CHILD WELFARE COMMITTEE, KOLLAM DISTRICT, REPRESENTED BY ITS CHAIRMAN, WOMEN AND CHILD DEVELOPMENT DEPARTMENT, GOVERNEMNT CHILDREN'S HOME, BEACH ROAD, KOLLAM, KERALA, PIN691 001.

¶18

2 THE CHAIRMAN CHILD WELFARE COMMITTEE, KOLLAM DISTRICT, WOMEN AND CHILD DEVELOPMENT DEPARTMENT, GOVERNMENT CHILDREN'S HOME BEACH ROAD, KOLLAM, KERALA, PIN691001. 3 CHITHRA M. AGED 29 YEARS D/O. SREELATHA, CHITHRALAYAM, ANANDAPPALLY P.O., PANNIVIZHA, ADOOR TALUK, PATHANAMTHITTA DISTRICT691 525. BY ADVS. M.T.SURESHKUMAR R.RENJITH

¶19

THIS REV.PETITION(JUVENILE JUSTICE) HAVING BEEN FINALLY HEARD ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RPJJ No.6/2021

-:3:-

O R D E R

Dated this the 17th day of September, 2021

¶25

A.Muhamed Mustaque,J.

¶26

This revision petition was filed challenging an order of the

¶27

Child Welfare Committee invoking Section 102 of the Juvenile Justice

¶28

(Care and Protection of Children) Act, 2015 (for short, the “Act”).

¶29

The first petitioner is the father and 2nd and 3rd petitioners

¶30

are the minor children. The 3rd respondent is the mother of the

¶31

children.

¶32

On 16.1.2021, the third respondent-mother approached

¶33

the Family Court, Kottarakkara to appoint her as the guardian and

¶34

also for custody of the children.

¶35

An interlocutory application was also filed by the third

¶36

RPJJ No.6/2021

¶37

-:4:-

¶38

respondent mother on the same day.

¶39

The Family Court issued notice and no order has been

¶40

passed on the claim for interim custody.

¶41

On 19.4.2021, third respondent mother approached the

¶42

Child Welfare Committee, Kollam for custody of the children. On the

¶43

same day itself, the Committee appears to have issued a notice to the

¶44

1st petitioner father for hearing on 22.4.2021. It is not known

¶45

whether the 1st petitioner has been served with the notice. However, on 22.4.2021 itself, the Child Welfare Committee passed an order giving custody to the mother from 2nd Saturday till the following

¶46

Saturday of every month. The order also directed the police to provide

¶47

assistance to the mother to obtain custody from the father.

¶48

The above order is questioned in this revision petition.

¶49

The Committee was of the opinion that depriving the

¶50

RPJJ No.6/2021

¶51

-:5:-

¶52

children having contact with the mother is against the interest of the

¶53

children and therefore custody as above has to be given.

¶54

The learned counsel for the petitioners submitted that this

¶55

order was passed without hearing the 1st petitioner and the Committee

¶56

has no power to interfere with the dispute between parents in regard

¶57

to the custody of the children.

¶58

On the other hand, the learned counsel for the third respondent defended the action of the Committee. The learned counsel particularly pointed out to Section 2(14)(v) of the Act. The above provision reads thus:

¶59

"2 .. Definitions

¶60

In this Act, unless the context otherwise requires,-

¶61

xxxx

¶62

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

¶63

(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

Xx"

RPJJ No.6/2021

-:6:-

We must at the outset note that the Committee committed

¶68

grave error in ordering custody to the mother when the matter is

¶69

pending before the Family Court. The Committee ought to have

¶70

restrained from entertaining a dispute which is a subject matter of lis between the parties. We must also note that wrangling between the

¶71

spouses in regard to custody will not confer any power on the

¶72

Committee to interfere in such matters and give custody to one of

¶73

them. Going by various provisions, including Section 2(14)(v) of the

¶74

Act, the Committee's role would arise only when none of the parents is

¶75

in a position to take care or protect the child or children. The

¶76

Committee can step into at a stage to protect a child when parents are

¶77

not in a position to protect the child. The role of the Committee

¶78

commences from the stage where both parents are not in a position to

¶79

take care and protect the child. The parens patriae principle to

¶80

RPJJ No.6/2021

¶81

intervene is to protect the child and act as a parent of the child when

¶82

parents fail to take care and protect the child. So also is the matter of

¶83

dispute between spouses. The Committee would be justified in

¶84

interfering with the custody of child with one of the parent, if that

¶85

parent is incapacitated or failed completely to take care of the child.

¶86

The Committee cannot voluntarily interfere with the

¶87

custody of the children except on a circumstance where it forms an

¶88

opinion that the child requires care and protection. Merely because

¶89

the children are isolated from the mother by the father, Committee

¶90

cannot interfere with the legal custody of the children by the father.

¶91

However, in this case, no such opinion was formed by the

¶92

Committee. The Committee did not find that father is incapacitated to

¶93

take care and protect the children. On the other hand, giving custody

¶94

to the mother for only one week in a month would show that the

¶95

RPJJ No.6/2021

¶96

-:8:-

¶97

father has the capacity to take care and protect the children.

¶98

We also note that 1st petitioner was not given sufficient

¶99

opportunity to appear and raise objection. In every proceedings

¶100

before the Committee, they shall follow the principles of natural justice when an adverse order is passed against a party. See Chapter II

¶101

Section 3 (xvi).

¶102

The impugned order is, therefore, illegal and unsustainable.

¶103

Accordingly, we set aside the same. No order as to costs.

¶104

Sd/-

¶105

A.MUHAMED MUSTAQUE

¶106

JUDGE

¶107

Sd/-

¶108

DR. KAUSER EDAPPAGATH

JUDGE

kp True copy

P.A. To Judge

RPJJ No.6/2021

-:9:-

APPENDIX OF RPJJ 6/2021

¶115

PETITIONER ANNEXURE

¶116

ANNEXURE I	TRUE COPY OF THE MEMORANDUM OF O.P.(HM) 302/2020 ON THE FILE OF FAMILY COURT, KOTTARAKKARA.
ANNEXURE II	TRUE COY OF THE CONSENT DEED DATED 31.10.2020 EXECUTED BY THE FATHER OF THE 3RD RESPONDENT BEFORE THE NOTARY PUBLIC.
ANNEXURE III	TRUE COPY OF THE MEMORANDUM OF O.P.(G&W) 8/2021 ON THE FILE OF FAMILY COURT, KOTTARAKKARA.
ANNEXURE III(A)	TRUE COPY OF THE AFFIDAVIT AND PETITIONER IN I.A.2/2021 IN O.P.(G&W) 8/2021 ON THE FILE OF FAMILY COURT, KOTTARAKKARA.
ANNEXURE IV	TRUE COPY OF THE PROCEEDINGS NO.CWC/KLM/7983/7984/21 DATED 19.4.2021 ISSUED BY THE IST RESPONDENT.
ANNEXURE V	TRUE COPY OF THE OBJECTION DATED 22.4.2021 SUBMITTED BY THE IST PETITIONER BEFORE THE IST RESPONDENT.

Shaiju S. v. the Child Welfare Committee

Case brief

What is this about?

What did the court decide?

Shaiju S. v. the Child Welfare Committee

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Anjana Devi Vs State of Kerala

Anjanadevi Vs Kamalamma

Sreekala N.P Vs Ganeesh M.K.

V.M Sindhu @ Sreemathy Thankachi, Vs K.Shaji

Dr. S.Abdul Azeez Vs Dr.Anjana Hassan

Dr.S. Abdul Azeez Vs K.K. Hassan Rawther