1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5656 of 2009 1. S. Venkat, 13, Sunder Shrinagar, Gulmohar Lane, V.N.Purav Marg, Sion, Chunnabhatti, Mumbai – 400 022. 2. Meenu Venkat, 13, Sunder Shrinagar, Gulmohar Lane, V.N.Purav Marg, Sion, Chunnabhatti, Mumbai – 400 022. .... Petitioners V/s. 1. Child Welfare Committee, Children’s Home, Jai Road, Dongari, Opp. Habibi’s Hospital, Umer Khadi, Mumbai. 2. State of Maharashtra, Govt. Pleader, Original Side, High Court, Mumbai. 3. B.S.Balasubhramaniam, 601, Kalpruksh, 23, K.A.Subramaniam Road, Matunga, Mumbai – 400 019. 4. B.Ganesh, TATA AIG Life Insurance Co. Ltd. Peninsula Towers, 6th Floor, Peninsula Corporate Park, Ganpartro Kadam Marg, Lower Parel, Mumbai – 400 013. ..... Respondents Mr.M.P.Rao, Sr.Advocate, with Ms.Deepa Chawan and Mr.Y.V.Divekar, Prashant P. Chawan i/by Divekar & Co., for the petitioners. None for respondent No.1. Mr.S.R.Nargolkar a/w Mr.S.D.Rayrikar, AGP, for respondent No.2. 2 Mr.P.M.Havnur, for respondent Nos.3 and 4. CORAM :P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 20TH APRIL, 2010 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) 1. By an order dated 15-04-2010, this matter was ordered to be placed for final hearing. Accordingly, with the consent of the learned counsel, the matter is taken up for hearing and disposed of finally by this judgment. 2. The present matter reflects very sorry state of affairs wherein parents of a minor child and maternal grand-father of a child namely Aishwarya, are fighting tooth and nail in the matter of getting custody of a child. The petitioners are the parents of a child Aishwarya, who was merrily staying with the parents i.e. petitioners, till July 2007. The petitioner No.1 is a father and petitioner No.2 is a step mother of the said child. The first wife of petitioner No.1 namely Chitra Venkat, died on 03-08-1994. The said child Aishwarya, was born out of the first wedlock of petitioner No.1 on 23-11-1992. Since the wife of petitioner No.1 expired, he thereafter, remarried with petitioner No.2 on 26-01-1996. It is interesting to note that after the marriage of petitioner No.1 with petitioner No.2, the said child continued to stay with the petitioners and in 3 fact she was not even knowing that petitioner No.2 is her step mother. A family accordingly stayed happily till July 2007. 3. It is the case of the petitioners that petitioner No.1 suffered serious financial set back in the year 2004, with the result that the petitioners were not in a position to give same comforts to the child which was given during earlier point of time. It is the case of the petitioners that subsequently, that is at the time when the girl was about 14 years of age, respondent No.3 maternal grandfather, tried to take away custody of the said child, as according to the petitioners, at earlier point of time, it was brought to her notice that petitioner No.2 is not her real mother, but she is a step mother. The said aspect was told to the girl child by her maternal grand father. In view of the same, the said girl child started developing some prejudice qua petitioner No.2. The father of the child i.e. petitioner No.1 herein, shifted to Chennai for getting an employment in July 2007 and the child used to stay with petitioner No.2, along with other daughter and son of petitioners. An unfortunate incident happened on 23-07-2007, by which the child was forcibly snatched away by respondent No.3 outside the school premises. It is the case of the petitioners that thereafter, the said girl was taken by his maternal grandfather, i.e. respondent No.3 herein, at Nehru Nagar Police Station, Chembur and at the intervention of the concerned police officers, custody of the said child was handed over to 4 respondent No.3. Subsequently, said child filed a complaint before Child Welfare Committee on July 26, 2007, alleging that she was not properly treated by her stepmother and that she would not like to stay with the stepmother. The Child Welfare Committee took the cognizance of the complaint and issued summons to petitioner No.1. It is the case of the petitioners that subsequently petitioners have tried to file complaint of kidnapping against respondent No.3 before Matunga Police Station. According to the petitioners, police did not take cognizance of the complaint on the ground that custody of the child was given to respondent No.3 by the Nehru Nagar Police Station and the petitioners were asked to approach Civil Court. 4. It is the case of the petitioners that petitioner No.2 appeared before the Committee and pointed out that no copy of the complaint has been given to the petitioners. But the Committee refused to give any such copy to the petitioners. Petitioner No.2 thereafter, applied for such copy under Right to Information Act, 2005 and subsequently, copy of the said complaint was given to petitioner No.2. The Committee thereafter, heard the concerned parties, recorded the statement of child Aishwarya. The Committee thereafter, passed impugned order granting custody of minor child to respondent No.3, till the minor child attains the age of 18 years. It is the aforesaid order passed by the Child Welfare 5 Committee dated 12-09-2007, which is impugned at the instance of the parents of the minor child in the present petition. 5. Learned counsel Mr.Rao appearing for the petitioners vehemently submitted that the order passed by the Child Welfare Committee is absolutely without jurisdiction and the Committee has handed over custody of the child to respondent No.3 by which the parents who are natural guardians, are deprived of the custody of their child. He further submitted that on the face of it, the impugned order is without jurisdiction and by virtue of the impugned order, parents are deprived of the custody of the child since more than three years and now today the girl has reached the age of 17 years and six months. Learned counsel for the petitioners strenuously submitted that unfortunately because of the weak financial condition of petitioner No.1 at the relevant time, an advantage of that situation was taken by respondent No.3, who took forcible possession of a minor child initially and thereafter, went to police station, wherein the said girl had filed a complaint against her own parents. Mr.Rao further submitted that it was not open to Nehru Nagar Police Station Officers to entertain such complaint and to hand over custody of the child to the maternal grandfather and subsequently, even the Child Welfare Committee deprived the parents from the custody of their child. He submitted that the present case does not fall under the 6 Juvenile Justice (Care and Protection of Children) Act, 2000 and even if respondent No.3 wants to ascertain his rights of the minor child, he was required to go to the appropriate civil Court under the Guardians and Wards Act, 1890. In order to lend credence to his submissions, he has relied upon various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, to which we will advert to later on. 6. It is also submitted by the learned counsel for the petitioners that no doubt, the impugned order of the Committee is appealable, but since the order is absolutely without jurisdiction, this is a fit case in which this Court should exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India and entertain the matter especially when the parents are deprived of their child since last more than three years. It is submitted by him that it is not open to the Committee to deprive the parents from the custody of the child and to hand over the same to respondent No.3 and such order therefore, is dehors the act. Learned counsel for the petitioners also submitted that even the Committee has not made any attempt for passing any orders of restoration of the custody to the parents. Under the aforesaid premises, learned counsel for the petitioners submitted that the order of the Committee deserves to be set aside. He also submitted that the role played by the police officers is also required to be deprecated and averments in this 7 behalf, is also made in the petition. 7. On the other hand, learned counsel for respondent No.3 submitted that since alternative remedy is available, this Court may not exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India by entertaining this petition. It is further submitted that for the protection of the child and for the welfare of the child, the Committee is empowered with very wide powers under the Juvenile Justice Act and the Committee after considering the facts and circumstances of the case, has passed the impugned order, which may not be disturbed by this Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India. Learned counsel for respondent No.3 further submitted that when the girl came with respondent No.3 to lodge a complaint about ill treatment, respondent No.3 had no alternative but to take appropriate steps to protect the welfare and interest of the child and in view of the allegations made by the child, he took the child to the police station for filing a complaint, wherein by way of settlement, the custody was handed over by the concerned police officers to respondent No.3, which according to him, is more or less a consent formula arrived at by the petitioner No.2 and respondent No3. 8. Learned counsel for respondent No.3 further submitted that the Child Welfare Committee also recorded the statement of the minor 8 child as well as the statement of the maternal grand father and has also considered the say of the present petitioners and thereafter, impugned order came to be passed by way of interim measures. It is submitted by him that ultimately, what is required to be seen by the Committee is the protection and welfare of the child and the said order, therefore, takes care of the interest of the minor child. Learned counsel for the respondent No. 3 submitted that the Court is required to see the paramount interest of the minor child. In order to substantiate his stay, learned counsel for respondent No.3, has relied upon certain judgments taking the view that the Court should see the paramount interest of the child. 9. It is further submitted that under Section 23 of the Juvenile Justice Act, a person can be punished for cruelty to juvenile or child and in order to file such a complaint that respondent No.3 had taken a child to the police station, but the police unfortunately did not take cognizance of the complaint and instead handed over the custody to respondent No.3 and subsequently, proceedings were initiated before the respondent No.1 Committee. He further submitted that at present the age of the child is 17 years and six months and within next six months, she will attain majority. In view of the same, even assuming that the order of the Committee may not be strictly in accordance with law, this Court may not interfere with it, especially when the custody of the child is not with the stranger, but it is 9 with the maternal grandfather. Learned counsel for respondent No.3 submitted that respondent No.3 is going to spend for the educational course which the child wants to pursue i.e. Commercial Pilot Licence (CPL) and MBA, for which about Rs.50,00,000/- are required to be spent and respondent No.3 is willing to spend this amount for the welfare and benefit of the child. 11. We have heard the learned counsel appearing in the matter at length. We had also interviewed the child on the last occasion i.e. on 15-04-2010 in our Chamber. During our interview with the Child Aishwarya, she pointed out to us that till she reached the age of 14 years, she was not knowing that the petitioner No.2 is her step mother, but subsequently she was told by someone that petitioner No.2 is her step mother and therefore, she is not interested to stay with petitioner No.2, though she is willing to stay with petitioner No.1. She frankly pointed out that she was not subjected to ill treatment during the period when she was staying with the petitioner No.2. However, today the said child requested us that she would like to say something in the matter and we permitted her to put her say. She pointed out that she is willing to stay with her parents after 06-05-2010 for two months, but she would not like to stay permanently with them, as now she is mainly interested in her career and to pursue studies. 10 12. The principal question which requires consideration is as to whether the impugned order passed by the respondent No.1 i.e. Child Welfare Committee can be said to be legal and as to whether respondent No.1 Committee had jurisdiction to entertain such dispute, which is raised in this matter. It is required to be noted that the Juvenile Justice Act is enacted with a view to seeing that a child who is deserted or who is required to be attended by someone and who is not taken care of by anyone, can be taken care in an appropriate manner as per the provisions of this Act. In this connection, it is expedient to have a reference to the various definitions given under Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 2(d) of the Act, provides that “(d) Child in need of care and protection” means a child – (i) who is found without any home or settled place or abode and without any ostensible means of subsistence. (ia) who is found begging or who is either a street child or a working child. (ii) who resides with a person (whether a guardian of the child or not) and such person – (a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or (b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person. (iv) who has a parent and guardian and such parent or guardian is unfit or incapacitated to exercise control 11 over the child. Section 2 (i) provides “fit person” means a person, being a social worker or any other person, who is prepared to won the responsibility of a child and is found fit by the competent authority to receive and take care of the child; Section 2(j) provides for “guardian” in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognized by the competent authority as a guardian in course of proceedings before that authority; 13. Section 29 of the Act, deals with the formation of a Child Welfare Committee, whereas Section 31 provides the powers of the Committee and as per the same, the Committee shall have final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights. Sub-section (2) of Section 31 of the Act, provides that “where a Committee has been constituted for any area, such Committee, shall notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection”. 14. Section 32 is in connection with the production of a child before the Committee. As per the said Section any child in need of care and protection may be produced before the Committee by one of the following persons : - (i) any police officer or special juvenile police unit or 12 a designated police officer; (ii) any public servant; (iii) childline, a registered voluntary organization or by such other voluntary organization or an agency as may be recognized by the State Government; (iv) any social worker or a public spirited citizen or (v) by the child himself; provided that the child shall be produced before the Committee without any loss of time but within a period of twenty four hours excluding the time necessary for the journey. 15. There is a provision in the said Act for providing shelter homes in Section 37 of the Act. Section 39 is in connection restoration, which reads thus : 39. Restoration – (1) Restoration of and protection to a child shall be the prime objective of any children’s homes or the shelter home. (2) The children’s home or a shelter home, as the case may be, shall take such steps as are considered necessary for the restoration of and protection to a child deprived of his family environment temporarily or permanently where such child is under the care and protection of a children’s home or a shelter home, as the case may be. (3) The Committee shall have the powers to restore any child in need of care and protection to his parent, guardian, fit person or fit institution, as the case may be, and give them suitable directions. Explanation : - for the purpose of this Section “restoration of and protection of a child” means restoration to - (a) parents; (b) adopted parents’ (c) foster parents; (d) guardian; (e) fit person; (f) fit institution. 13 16. There are rules which are framed under the Act, namely the Juvenile Justice (Care and Protection of Children) Rules, 2007. Rule 25(d) provides for “conduct necessary inquiry on all issues relating to and affecting the safety and well being of the child. Rule 25 (e) provides that “directions to the Child Welfare Officers or probation officers or non- governmental organizations to conduct social inquiry and submit a report to the Committee. Whereas, Rule 25(l) provides for declaration of ‘fit persons’. Rule 69 provides about recognition of fit person or institution. As per the said rule, any individual who is willing temporarily to receive a juvenile or child in need of care, protection or treatment for a period as may be necessary, may be recognized by the competent authority as a fit person after due verification of their credentials and reputation. 17. Considering the aforesaid statutory provisions and rules, in our view, it is not permissible under the Act, to hand over custody of a child from the natural guardians to someone else. In a case where there is a dispute about custody of a child, the same is required to be raised before the competent civil court taking the matters under Guardians and Wards Act. Under the Juvenile Justice Act, in certain eventualities, the Committee is empowered to pass appropriate order by which a child can be sent to remand home or custody may be given to fit person, as indicated hereinabove. But, surely the Child Welfare Committee cannot 14 adjudicate the dispute in connection with the custody of a child and it is not open for the Committee even to adjudicate rival claim of the parties asking for the custody of the child. 18. It is required to be noted that in the instant case, the child remained with the parents upto the age of 14 years. There is absolutely nothing on record to show that the child was subjected to physical beating or ill treatment, nor any medical evidence is produced to that effect. The learned counsel for the respondents states that there is no medical evidence showing that the child was subjected to beating. Considering the the concerned child is a minor child and considering the nature of the dispute, it is not possible for us to accede to the oral say of the child. 19. It is unfortunate that during some period, financial condition of the petitioner No.1 deteriorated and that somebody tried to take advantage of that situation and that too by approaching police. It is not in dispute that the petitioners are the parents of the child and it is too much to take the child to the police station for lodging a complaint. It is not possible for us to understand as to how the police could have handed over the custody of the child to respondent No.3, when at the relevant time, she was in the custody of the natural guardian i.e. parents. The role played by the concerned police officers is highly deprecated, as even though it was not open to the police authorities to handover the custody 15 by taking the same from the natural guardian and hand over to respondent No.3. It is not the case where a complaint has been lodged or taken by the police authority, the police was not supposed to play role of mediator in such type of dispute. 20. Statutory provisions contained in the Act, as has been reproduced hereinabove, and on a bare perusal of the same, it is not possible for us to believe that the Committee has a power to take custody from the natural guardian and handed over to respondent No.3 material grandfather. The committee has hand over the custody to the maternal grandfather and aunt, on executing bond of Rs.1,00,000/- on fit person basis under Section 39 of the Act, till the girl child attains the age of 18 years. The effect of the impugned order is that the natural guardians have been deprived of her custody till the girl attains majority. 21. Simply because minor child might have expressed her wish, it was not proper on the part of the Committee to pass such an order without further inquiry in this behalf. The Committee has also not recorded finding that respondent No.3 is a fit person and no inquiry is held to find out where a child is in need of care and protection, as contemplated under Section 2(d) of the Act. From the record, it cannot be said that the concerned child can be said to be a child of a need and protection as on the ground that she is residing with a person and such 16 person has killed, abused or neglected some other child and there is a reasonable likelihood of the threat by that person. 22. By the impugned order, the Committee has deprived the natural guardian and parents of the child from the custody and firstly, the custody was given to respondent No.3 with the help of the police. Thereafter, a complaint was filed before the Committee. The father of the girl was also summoned by the Welfare Committee and he replied to the Committee that he has not followed the purpose of the summons which regarding his own daughter. The Committee has considered the say of respondent No.3. The Committee has also observed in the impugned order that the maternal grandfather of the child gave different picture about the father of the girl that the father of the girl got remarried staying with Mr.Balasubramaniam and when it was confronted the relationship between them deteriorated. The Committee, in our view, without any authority has gone into concerned dispute by observing that father of the child was not allowing the child to speak with maternal grandfather and was not allowed to share her experience with him. In our view, it can hardly be said that there is any ground for exercising powers under the Act, in question. The Committee has recorded the statement of the maternal grandfather, wherein it was stated that he took the child at Nehru Nagar Police Station when girl child contacted him to file a case 17 against her parents regarding ill treatment given to her and the custody was given to him by Nehru Nagar Police Station. The Committee has also recorded the fact that the parents have stated that the girl child was not told the fact that her mother was her step mother. But since the mother knew that the girl child was a step daughter, that