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IN THE HIGH COURT OF MADHYA PRADESH
J.K. Maheshwari, J.
Priya Yadav v. State of M.P. and others
Writ Petition No.6163 of 2016 (Indore) : against the order
dated 20.7.2016, passed by Child Welfare Committee, Indore;
Decided on 23.11.2016.
Held : In view of the discussions made hereinabove, it can safely be concluded that under the provisions of Juvenile Justice(Care and Protection of Children) Act, 2015 and Juvenile Justice (Care and Protection of Children) Rules, 2016, Child Welfare Committee does not confer power to give custody of a child taking it from mother and give to the father in the manner as done by the CWC, Indore in the present case.
(2) Guardians and Wards Act, 1890 -- Ss.7 and 8 -- Family Courts Act, 1984 -- S.7(1)(b) -- scope of power conferred under -- power conferred to Court of competent jurisdiction who shall have powers to decide guardianship or to give visitation right or access to minor child -- CWC cannot direct visitation right to meet child either to husband or wife -- in this case application for custody of child is also pending before Family Court -- impugned order set aside.
Held : In the present case wherein also as per Annexure P-2, an application for custody of the child has also been filed before the Family Court but during pendency of the said application, respondent No.5 applied to the CWC whereon the order of the visitation right has been passed directing to bring the child in the office of CWC..... In my considered opinion the aforesaid exercise of powers by the CWC, Indore is not in conformity with the Act and the Rules and also contrary to the powers conferred under the other law applicable for the time being in force, therefore the order impugned is set aside.
(3) Constitution of India -- Arts.15, 39(e), (f), 45 and 47 -- object and reasons to bring Act, 2015 -- State is conferred with powers under to make special provisions for children -- further makes State responsible for ensuring that all needs of children are met and their basic human rights are protected. [Para 5
¼1½ fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2015 & /kkjk 2¼22½] 27 ls 30 rFkk 31 ls 37 & fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ fu;e] 2016 & v/;k; 5 & dh O;kfIr & cky dY;k.k lfefr dks ckyd ds laca/k esa ftls ns[kjs[k rFkk laj{k.k dh vko';drk gS 'kfDr iznr dh xbZ & ;g ckyd dh vfHkj{kk ek¡ ls ysdj firk dks ,slh jhfr esa nsus ds fy, tSlk fd cky dY;k.k lfefr }kjk fd;k x;k 'kfDr iznr ugha djrh & cky dY;k.k lfefr }kjk 'kfDr dk iz;ksx vf/kfu;e rFkk fu;e dh vuq:irk esa ugha & cky dY;k.k lfefr dks ,slh 'kfDr;ksa dk iz;ksx u djus ds fy, funsf'kr fd;k x;k gS tSlh fd bl ekeys esa iz;ksx dh xbZ rFkk Hkfo"; esa ,slk djus ls vo:} fd;k x;k & vk{ksfir vkns'k vfHk[kafMr & ;kfpdk eatwjA vfHkfu/kkZfjr % ;gk¡ mijksDr fopkj&foe'kZ dks ns[krs gq, ;g lqjf{kr :i ls fu"d"kZ fudkyk tk ldrk gS fd fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2015 rFkk fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ fu;e] 2016 ds mica/kksa ds v/khu cky dY;k.k lfefr ckyd dh vfHkj{kk ek¡ ls ysdj firk dks ,slh jhfr esa nsus ds fy, tSlk cky dY;k.k lfefr] bankSj }kjk bl ekeys esa fd;k x;k] 'kfDr iznr ugha djrhA ¼2½ laj{kd vkSj izfrikY; vf/kfu;e] 1890 & /kkjk 7 rFkk 8 & dqVaqc U;k;ky; vf/kfu;e] 1984 & /kkjk 7¼1½¼[k½ & mica/k ds v/khu iznr dh xbZ 'kfDr dh O;kfIr & l{ke vf/kdkfjrk okys U;k;ky; dks 'kfDr;k¡ iznr dh xbZ tks laj{k.k ;k HksaV djus dk vf/kdkj nsus ;k vo;Ld ckyd ls feyus dk fofu'p; djus dh 'kfDr;k¡ j[ksxk & cky dY;k.k lfefr ifr ;k iRuh dks ckyd ls feyus ds fy, HksaV djus ds vf/kdkj dk funs'k ugha ns ldrh & bl ekeys esa ckyd dh vfHkj{kk ds fy, vkosnu Hkh dqVaqc U;k;ky; ds le{k yafcr gS & vk{ksfir vkns'k vfHk[kafMrA vfHkfu/kkZjr % bl ekeys esa ftlesa] vuqyXu izn'kZ ih&2 ds vuqlkj ckyd dh vfHkj{kk ds fy, vkosnu dqVaqc U;k;ky; ds le{k izLrqr fd;k x;k gS] ijarq dfFkr vkosnu ds yafcr jgus ds nkSjku izR;FkhZ dz-5 us cky dY;k.k lfefr dks vkosnu fd;k ftl ij cky dY;k.k lfefr ds dk;kZy; esa ckyd dks ykus ds fy, funs'k nsrs gq, HksaV djus ds vf/kdkj dk vkns'k ikfjr fd;k x;k gS--------- esjh lqfopkfjr jk; esa cky dY;k.k lfefr }kjk iwoZdfFkr 'kfDr;ksa dk iz;ksx djuk vf/kfu;e rFkk fu;eksa ds vuq:i ugha gSA le;≤ ij ykxw gksus okyh vU; fof/k ds v/khu iznr 'kfDr;ksa ds izfrdwy Hkh gS blfy, vk{ksfir vkns'k vfHk[kafMr fd;k tkrk gSA ¼3½ Hkkjr dk lafo/kku & vuq- 15] 39¼³½] ¼p½] 45 rFkk 47 & vf/kfu;e] 2015 dks ykus ds fy, mn~ns'; rFkk dkj.k & jkT; dks fof/k ds v/khu ckydksa ds fy, fo'ks"k mica/k cukus ds fy, 'kfDr;k¡ iznr gSa & vkxs jkT; dks ;g lqfuf'pr djus ds fy, mrjnk;h cuk;k x;k gS fd ckydksa dh lHkh vko';drk,¡ iwjh dh xbZ rFkk muds ewy ekuo vf/kdkj lajf{kr fd, x,A ¼iSjk 5½
1. This writ petition under Article 226/227 of the Constitution of India has been filed assailing the order dated 20.7.2016 passed by Child Welfare Committee, Indore directing the petitioner to bring the child in the office of Child Welfare Committee (in short ‘CWC’), Prabhu Nagar, Indore in between 12:00 a.m. to 5:00 p.m. on every Friday giving visitation right to the husband on his application. In the said order it is specified that non compliance would make her liable for the consequences.
2. Learned counsel for petitioner has strenuously urged that as per section 2(22) of Juvenile Justice(Care and Protection of Children) Act, 2015 (which shall be referred hereinafter as the ‘Act’ of 2015) the committee would mean the ‘Child Welfare Committee’; may be constituted as per section 27 of the Act. The State Government has conferred with the power to appoint the Child Welfare committees for exercising the power to discharge the duties in relation to children in need of care and protection under the Act. The powers of the committee has been specified under section 29 by which the committee can dispose of the cases relating to care, protection, treatment, development and rehabilitation of the child in need of care and protection. Section 30 further specifies the functions and responsibilities of the committee. However, looking to the same and in the facts, committee cannot exercise the power to pass the order impugned. It is said that in the case, husband and wife are litigating in the Family Court on initiation of proceedings asking maintenance and the proceeding under section 498A of the IPC where husband applied before the Family Court asking visitation right and during pendency of the said application, submitted an application before CWC, Indore contending that he is ready to take over the responsibility being father of his daughter, however to take care of her, overall balanced emotional and social welfare, care and love as she deserves like other child, requested for the custody. In the said application, nothing is said how the child is in need of care and protection. Again applications with the similar wordings have been filed, on all those CWC has taken cognizance issuing the notice to petitioner to bring the child in the office of CWC. On 20.7.2016 application was filed contending that CWC had intimated to respondent No.5 that child was ill, however husband applied for visitation right and to grant the permission for her treatment. It is submitted that CWC, Indore cannot pass such order, therefore action taken by them is in excess to the power conferred on them. It has also been brought to the notice of this Court that the Child Welfare Committee, Indore by receiving the applications, regularly passing the orders to give custody of the child. Copy of one of the order dated 25.5.2015 has been brought to the notice contending that in respect to custody of one child, proceedings were pending before the Family Court, even then assuming the jurisdiction, order has been passed. In view of aforesaid, it is contended that the appropriate directions may be issued to the CWCs of the State to discharge their duties within the framework of law.
3. Shri Rohit Mangal, learned Government Advocate representing the State made an endeavour to satisfy the Court that CWC is conferred with a power to give the visitation right to the guardian in a case where the child is in need of care and protection but in view of provisions as contained under sections 27 to 30 as well the procedure contemplated under sections 31 to 37 of the Act of 2015 and the Rules framed by the Central Government known as Juvenile Justice (Care and Protection of Children), Rules 2016 (hereinafter referred as the ‘Rules’), it is fairly conceded that CWC does not confer with a power to give the custody of the child because such powers are conferred to the Court under the provisions of Guardians and Wards act, 1890 and by the Family Courts Act, 1984. However, it is urged
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