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 12.0 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 498-A of the Indian Penal Code 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 Govt. 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 Govt, 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 Guardian and Wards Act, 1890 and by the Family Courts Act, 1984. However, it is urged that looking to the scope of provisions of the Act of 2015, appropriate directions may be issued to all the Child Welfare Committees in the State of Madhya Pradesh.
4. Shri Manoj Manav, learned counsel representing respondent No. 5 has argued with vehemence supporting the order impugned passed by the CWC conferring visitation right to respondent No. 5 directing the petitioner to bring the child in the office of CWC in between 12.00 a.m to 5.00 p.m in every week on Friday. It is urged by him that as per provisions of the Commission For Protection of Child Rights Act, 2005 under section 2(b), “child rights” have been defined by which the children's right adopted in the United Nations Convention on the Rights of the Child on 20-11-1989 and ratified by the Government of India on 11-12-1992 shall be included and it is required to be protected. The Child Welfare Committee is conferred with the powers to take care of the children who are not in conflict with law, however as per Articles 9 and 10 of the United Nations Convention, it is the duty of the parties that the child shall not be separated from his or her parents against their will, however in the benefit of the child, both the parents have to maintain personal relations and remain in direct contact to the child until it is contrary to the children's best interest. In the present case on filing the complaint, alleging cruelty and harassment by the wife proceeding under section 498-A of the Indian Penal Code is pending against husband and also filed the proceedings under section 125 of the Criminal Procedure Code seeking maintenance would cause hardship to the child in maintaining the inter-personal relationship to the spouse, therefore to show love and affection, husband has rightly been permitted for visitation right by the CWC, Indore by the order impugned. In view of aforesaid, it is urged that petition filed by the petitioner may be dismissed.
5. After hearing learned counsel appearing on behalf of both the parties and on perusal of the object and reasons to bring the Act of 2015, it is clear that this Act has been brought in pursuance to Article 15 of the Constitution, whereby State is conferred with powers to make the special provisions for the children. Article 39(e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected. The reference of the United Nations Convention on the Right of Children ratified by India on 11-12-1992 have also been given effect whereby State parties are required to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth (Before b) reinforcing the child's respect for the human rights and fundamental freedoms of others (c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. Under the Act of 2015, vide section 2(22), the Child Welfare Committee is required to be constituted as per section 27. Chapter 5 of the Act of 2015 starts from section 27 which deals with Child Welfare Committee, required to be constituted by the State Government notifying it in a official gazette for every district which may be more than one at the said district. The committee may exercise their power and duties conferred on them, in relation to children in need of care and protection. The qualification for appointment has also been mentioned therein. The functions of the Committee how and in what manner and to preside over has been specified under section 28. In section 29 the powers of committee has been mentioned whereby it is apparent that the committee shall have the authority to dispose the cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection. Section 30 deals with functions and responsibilities of the Committee and it shall include:—
(i) taking cognizance of and receiving the children produced before it;
(ii) conducting inquiry on all issues relating to and affecting the safety and wellbeing of the children under Act;
(iii) directing the Child Welfare Officers or Probation Officers or District Child Protection Unit or non-governmental organisation to conduct social investigation and submit a report before the committee;
(iv) conducting inquiry for declaring fit persons for care of children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child's individual care plan and passing necessary directions to parents or guardians or fit persons or children's homes or fit facility in this regard.
(vii) selecting registered institution for placement of each child requiring institution support, based on the child's age, gender, disability and needs and keeping in mind the available capacity of the institution;
(viii) conducting at least two inspection visits per month of residential facilities for children in need of care and protection and recommending action for improvement in quality of services to the District Child Protection Unit and the State Government;
(ix) certifying the execution of the surrender deed by the parents and ensuring that they are given time to reconsider their decision as well as making all efforts to keep the family together;
(x) ensuring that all efforts are made for restoration of abandoned or lost children to their families following ‘due process’ as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered child as legally free for adoption after due inquiry;
(xii) taking suo motu cognizance of cases and reaching out to children in need of care and protection, who are not produced before the Committee, Provided that such decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee by Special Juvenile Police Unit or local police, as the case may be, under the Protection of Children from Sexual Offences Act, 2012;
(xiv) dealing with cases referred by the Board under sub-section (2) of Section 17;
(xv) Co-ordinate with the police, labour department and other agencies involved in the care and protection of children with support of the District Child Protection Unit or the State Govt.;
(xvi) in case of a complaint of abuse of a child in any child care institution, the Committee shall conduct an inquiry and give directions to the police or the District Child Protection Unit or labour department or childline services, as the case may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be prescribed.
6. On perusal of the aforesaid, it is apparent that except section 30 subclause (xii), the Committee cannot take cognizance with respect to protection of a child who is in need of care and protection. In the present case suo motu cognizance has not been taken by the Committee reaching out to the child in need of care and protection but the action has been taken on the basis of a complaint made by the husband on supplying the information by the Committee. However, the function as discharged by the Committee is not specified in this section.
7. Chapter 6 specifies the procedure to be followed in relation to the children in need of care and protection which starts from section 31 to section 38. Section 31 is relevant, however it is reproduced as under:—
Section 31— (1) any child in need of care and protection may be produced before the committee by any of the following persons namely:—
(i) any police officer or Special Juvenile Police Unit or designated Child Welfare Officer or any officer of District Child Protection Unit or Inspector appointed under any Labour Law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any Voluntary or non-governmental organisation or any agency as may be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing home, hospital or maternity home.
These persons may produce the child before the committee without any loss of time within a period of 24 hours excluding the time necessary for journey.
(2) the State Govt, may make rules consistent with this Act, to provide for the manner of submitting the report to the committee and the manner of sending and entrusting the child to Children's home or fit facility or fit person as the case may be, during the period of enquiry.
8. Bare reading of the aforesaid, it is apparent that Police Officer or Special Juvenile Police Unit or designated Child Welfare Officer or any officer of the District Child Protection Unit or Inspector appointed under Labour Law, any public servant, childline service or any Voluntary or non-voluntary Governmental organisation or any agency recognized by the Government, Child Welfare Officer or Probation Officer, Social Worker, Public Spirited Citizen, Nurse, Doctor, Management of Nursing Homes, Hospital and Maternity Home may bring the child in need of care and protection before the CWC or otherwise the child himself may remain present asking relief as conferred to the Committee. In the said provision, no space has been provided to take action by the CWC on an application submitted by the husband against a wife to produce the child who are litigating in the Court of law.
9. As per section 32, it has been made mandatory on the aforesaid persons to make report regarding a child found separated from guardian and in case of non-reporting, it would be an offence as per section 33 and section 34 who provides for penalty. Thereafter the committee shall take steps as specified in section 35 for surrender of the children following the procedure as specified.
10. Section 37 is relevant which clarifies what type of orders can be passed by the CWC with respect to the child in need of care and protection, hence it is reproduced as under:—
37(1) The committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view; pass one or more of the following orders, namely—
(a) declaration that a child is in need of care and protection;
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker;
(c) placement of the child in Children's Home or fit facility or Spcialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child;
(d) placement of the child with fit person for long term or temporary care;
(e) foster care orders under section 44;
(f) sponsorship orders under section 45;
(g) directions to persons or Institutions or facilities in whose care the child is placed regarding care, protection and rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention; psychiatric and psychological support including need-based counselling, occupational therapy or behaviour modification therapy, skill training, legal aid, Educational services and other developmental activities, as required, as well as follow-up and co-ordination with the District Child Protection Unit or State Government and other agencies;
(h) declaration that the child is legally free for adoption under section 38.
(2) The Committee may also pass orders for—
(i) declaration of fit persons for foster care;
(ii) getting after care support under section 46 of the Act; or
(iii) any other order related to any other function as may be prescribed.
Any other function as may prescribed.
11. For the purpose of chapter 5 of the Act of 2015 and chapter 5 of the Rules, it is clear that any child who is in need of care and protection is required to be produced before the committee during the working hours at its place and beyond working hours before members as per duty. What is supposed to be done by the committee has been specified under the Act as well as in the Rules. Thus primary function of the committee starts when child is produced before them or otherwise in case any intimation has been received by the CWC, on verification by the Protection Officer or Probationary Officer or by own visit, after passing the order by all three members. Thus the powers as conferred under the Act and the Rules to initiate the proceedings and to pass the order have been specified under section 37 and the power can be exercised to the extent as indicated. No other power can be exercised by the members of the CWC with respect to a child who is not in conflict with law and in need of care and protection, not brought before them.
12. In the context of aforesaid legal position, arguments advanced by the counsel for the respondent referring the provisions of Commission for Protection of Child Rights Act, 2005 and as per United Nations Conventions is required to be adverted. Counsel referring the said convention urged that Madhya Pradesh High Court vide order dated 20-3-2014 has accepted the applicability of those conventions but on perusal of the order, it is apparent that Chief Justice of the Madhya Pradesh High Court has directed for circulation of the. Child Access and Custody Guidelines and pertaining Plan for guidance, among the Additional District Judges, Family Court Judges and marriage counsellors in the State of Madhya Pradesh. Whereby it is clear that High Court was conscious enough that said convention ought to be followed by the competent Court of law to which the power has been conferred to declare guardian, therefore said convention is required to be observed by those Courts or Forums having competence conferred to them under the law. 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.
13. Thus, it is apparent that under the provisions of Guardian and Wards Act as well as under the provisions of Family Courts Act, the powers are conferred to the Court of competent jurisdiction who shall have powers to decide those application and in the said context if the letter of the High Court dated 20-3-2014 is interpreted applying the United Nations Conventions then it is rightly communicated to the Courts having power to decide guardianship or to give visitation right to or access to the minor child, therefore argument advanced by the counsel for respondent No. 5 asking benefit of convention through CWC, Indore is misplaced and repelled.
14. 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. It is seen that CWC, Indore is passing orders granting custody of the children and one of such order has been brought to the notice of this Court dated 25-5-2015. In the said case also the proceedings were pending before the Family Court for custody of the child but CWC usurp the jurisdiction and during pendency of those proceedings directed custody of the child to the mother. Similar is the position in the present case wherein also as per Annx.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 where on the order of the visitation right has been passed directing to bring the child in the office of CWC, Indore on every Friday between 10.0 a.m to 5.00 p.m to the petitioner. 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.
15. As per the discussions made hereinabove, a note of caution is to be taken by the Court that such power should not be exercised by the other CWCs functioning in the State of M.P The aforesaid note of caution fortifies from the fact that the members appointed by the State Government either Chairman or members may not possess legal Education, not having acquaintence with law and they are also not well versed with the provisions of law, however it is necessary to bring to the notice of all the CWCs, that what powers are required to be exercised by them. In this respect it is directed that they may exercise the powers within the ambit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Rules framed therein and not beyond the same. It is directed that custody of child cannot be given by them in the facts discussed above, therefore the order passed today by this Court is required to be circulated to all the CWCs of the State of M.P directing them that visitation right or custody as guardian should not be invoked by them assuming the jurisdiction in this regard.
16. Accordingly, this petition succeeds and is hereby allowed. The order impugned is set aside. The Child Welfare Committee, Indore is directed not to exercise such powers as exercised by them in this case and they are restrained to do so in future. Parties shall bear their own costs.
17. Copy of this order be sent by the Registrar of the Bench Registry to the Member Secretary, State Legal Services Authority, MP., the Principal Secretary, Women and Child Development Department for communication to all the Child Welfare Committees functioning in the State of M.P issuing direction to them to discharge their function within the ambit of framework and Act of 2015 and Rules framed thereunder.
With the aforesaid, the petition stands allowed and disposed of.
C.C as per rules.
Petition allowed.
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