HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC. WRIT PETITION No. - 26927 of 2025 Rahul Shashtri and another .....Petitioner(s)

Versus State of U.P. and others .....Respondent(s)

Counsel for Petitioner(s) : Raghawendra Kumar Singh, Sandeep Kumar Gupta Counsel for Respondent(s) : G.A.

Court No. - 44 HON'BLE J.J. MUNIR, J.

HON'BLE VINAI KUMAR DWIVEDI, J.

(Order on the memo of Writ Petition)

Learned Counsel for the petitioners is permitted to amend the prayer clause by substituting the form of writ from Certiorari to Prohibition.

The submission of learned Counsel for the petitioners is that petitioner no. 1 is the husband and respondent no. 3 is the wife. They are an estranged couple. There are various matrimonial causes pending between them before the Family Court etc. One of the issues that has arisen between them is the custody of their minor son, petitioner no. 2, Harsh Vardhan.

It is pointed out that the wife has moved an application to the Child Welfare Committee, Etah ('CWC' for short) under the Juvenile Justice (Care and Protection of Children) Act, 2015 ('Act of 2015' for short), seeking grant of visitation rights regarding the parties' minor son.

The submission is that the minor child is not a child in conflict with law, within the meaning of Section 2(13) of the Act of 2015, and the CWC have no jurisdiction under the said Act. The CWC has registered Case No. 5 of 2025 under Section Nil and are proceeding with the matter to determine the right to visitation.

Learned Counsel for the petitioners submits that the right to custody of the minor or the grant of visitation rights are within the jurisdiction of the Judge under the Guardians and Wards Act, 1890, and not the CWC. The proceedings before the CWC, in the submission of the learned Counsel for the petitioners, are not maintainable.

In support of his contention, learned Counsel for the petitioner has relied upon a decision of the Madhya Pradesh High Court in Priya Yadav v. State of M.P. and others, 2016 SCC OnLine MP 11923. He has invited our attention to the following remarks in Priya Yadav (supra) : 12. ...Under the Act of 2015 and the Rules framed thereunder, CWC is not conferred with a power to give the custody of the child. It is a case wherein due to dispute in between the husband and wife, proceedings are pending between them, however CWC, Indore cannot direct visitation right to meet the child either to husband or to wife in the facts of the case. In the said context the provisions of the Guardian and Wards Act, 1890 are relevant whereby as per section 7, the Court may make an order as to guardianship on submitting an application by a person as specified in section 8 before the competent Court having jurisdiction to entertain such an application in a form as prescribed. As per section 7 the Court may have power to decide who would be the guardian of the child. Similarly in the Family Courts Act, as per section 7(1)(b), Explanation(g) the proceedings may be brought before the Family Court in a suit or proceeding asking guardianship of the child or the custody or access to any minor.

A prima facie case is made out.

Admit.

Notice on behalf of respondent nos. 1 and 2 is accepted by Mr. Shashi Shekhar Tiwari, learned Additional Government Advocate. He is granted two weeks' time to file a counter affidavit.

Issue notice to respondent no. 3, returnable on 13.03.2026.

Steps for the purpose shall be taken by R.P.A.D. within 48 hours next.

Adjourned to 13.03.2026 To be taken up in the cause list of the day for orders, along with a report regarding service and the postal track attached. The office shall also put in a report regarding status of affidavits.

(Order on the Stay Application)

Issue notice.

Until further orders of this Court, further proceedings in Case No. 5 of 2025, Poonam v. Rahul Shashtri, pending before the Child Welfare Committee, Etah shall remain stayed The Registrar (Compliance) is directed to communicate this order to the Chairperson, Child Welfare Committee, Etah th