Child Welfare Committee cannot usurp jurisdiction of Family Court in pending child custody matters
Mrs Nidhi Luharuwalla Vs State of Karnataka and Ors
WRIT PETITION NO.1372 OF 2019 (GM-RES)
About/from the judgment:
“In the fact situation of the case, even if the Committee was of the opinion that the child was in need of care and protection, it ought to have referred the matter for consideration before the Family Court where the issue with regard to the custody of the minor was pending consideration.”
The Karnataka High Court has observed that the Child Welfare Committee cannot usurp the jurisdiction of Family Courts in child custody matters pending before it.
The mother initiated proceedings under the Guardians and Wards Act before the Family Court. During the pendency of proceedings, the father made a complaint to the Child Welfare Committee in which it was allegedly stated that the child is scared of the mother and he feels safe with him.
The committee, in its proceedings observed that, though it does not have jurisdiction to decide custody matter, yet when the child seeks care and protection under the Juvenile Justice (Care and Protection of Children) Act, 2015, with a complaint in writing, it is compelled to hear the child and provide appropriate temporary relief as a precautionary measure in the interest of the child. After hearing both the parents, and taking into account the statement made by the child, it gave custody of the child to the father.
In the writ petition filed by the mother challenging the committee's order, Justice Alok Aradhe, referring to statutory provisions, observed that the powers of the committee to place the child with a fit person, has to be exercised by the Committee in respect of the proceeding initiated under the Act.
The court added that the Committee cannot be permitted usurp the jurisdiction of the competent Court exercising powers under the provisions of the Guardians Act. It said:
"Admittedly, the proceeding under the Guardians Act is pending where the issue with regard to the custody of the minor is pending adjudication. In the instant case, the Committee, on the basis of the communication sent by the child to the Committee, has taken the custody from the petitioner and has handed over the custody of the child to respondent No.3. Under the provisions of the Guardians Act, the Court is empowered to make an order under Section 7 of the aforesaid Act. The said jurisdiction conferred by law cannot be taken away by the Committee which is a statutory body. In the fact situation of the case, even if the Committee was of the opinion that the child was in need of care and protection, it ought to have referred the matter for consideration before the Family Court where the issue with regard to the custody of the minor was pending consideration. The usurpation of jurisdiction by the Committee in a matter which is sub-judice before the Court of competent jurisdiction under the Guardians Act cannot be sustained in the eye of law."
The court then set aside the committee's order and directed the Family Court to decide the issue of custody of the minor child.
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