# Smt. Shivani Singh v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Writ C No. 4897 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shivani-singh-v-state-of-u-p-ors-49959
- **Pages:** 15

## Headnote

A. Civil Law - Custody of Minor daughter -
The Juvenile Justice (Care And Protection
Of Children) Act, 2015 - Section 101 -
Appeal - Power of Appellate Authority to
take Additional Evidence - the Juvenile
Justice Act does not given any power to
the
Appellate
Authority
to
receive
additional evidence - It can only examine
and decide the appeal on the grounds, on
which the same has been filed - In case
the appellate authority is of the view that
the order of the committee is incorrect
and that it should have taken/considered
more evidence/material, then it could
have remanded the matter back to the
committee to decide the matter afresh,
but it certainly did not have any power to
receive "additional evidence" (Para 42)

B. Civil Law - Custody of minor child, in
need of care and protection - Family
Courts Act, Sections 7 (1)(a), (g) & 20 -
The Juvenile Justice (Care And Protection
Of Children) Act, 2015 - Child Welfare
Committee (CWC) - jurisdiction in relation
to the proceedings qua the custody or
access to any minor lies with the Family
Court - the Child Welfare Committee,
under
The
JJ
Act,
neither
has
the
jurisdiction nor the power to decide
contested
claims
pertaining
to
guardianship and custody of minor - If at
the behest of one of the parents, a
complaint is made before the CWC, with
regard to abuse of the child by the other
parent or person, and custody is also
sought by such parent or person, then the
Committee would be within its powers to
declare the child to be in need of care and
protection, and send him to a fit facility of
children's
home
etc.
pending
determination/adjudication by court of
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
291
competent jurisdiction on questions of
custody
-
Power
exercised
by
the
committee is administrative in nature,
rather than judicial (Para 30, 34)

C. Civil Law - Procedure in Relation to
Children in Need Of Care And Protection -
the Juvenile Justice (Care and Protection
of Children) Act, 2015 (2 of 2016) -
Sections 31 & 36 - the Juvenile Justice
(Care and Protection of Children) Model
Rules, 2016 - Rule 18 & 19 - Any child in
need of care and protection is to be
produced before the Committee - the
Committee is to hold an inquiry and after
interaction with the child may issue
directions for placing the child with the
parent or guardian or Children's Home, or
direct the placing of the child in safe
custody of a fit person or a fit facility - the
objective
of
the
committee
is
rehabilitation of the child - Held - in the
instant case, there is no mention of the
child being examined by the committee
which
was
the
primary
duty
and
responsibility (Para 40)

D.
The
Juvenile
Justice
(Care
And
Protection Of Children) Act, 2015 - Child
Welfare Committee - In the instant case,
procedure and manner adopted by the
was absolutely arbitrary - Committee,
without giving any opportunity of hearing
to the petitioner (mother), to defend
herself, decided the matter of custody of
her minor daughter and held that she was
unable to look after the welfare of the
child - The copy of the complaint was
never supplied to the petitioner (mother)
nor was she supplied any documents
which
were
relied
upon
by
the
complainant
before
the
committee
-
Committee
relied
upon
information
published in newspaper articles, and
attributed
disease
of
"fbing",
still
unknown to the medical science, to the
petitioner (mother) - Committee was fully
aware that the grandfather who was the
complainant was 78 years' old and still
proceeded to declare him a fit person only
to hand over the custody of the minor
child
while
respondent
No.5
was
a
resident of NOIDA living with her husband
and would not be in a position to look
after the minor child at Sultanpur but she
was also declared a fit person and custody
handed over - order of the Committee was
illegal and arbitrary and suffered from non
application of mind (Para 40)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,963 of 50,613. This is a partial read: ask again with offset=39963 for what follows._

290 INDIAN LAW REPORTS ALLAHABAD SERIES
could not have been ordered prior to expiry
of the said period i.e. 26.05.2021 while in
the present case the order of cancellation
has been passed on 26.4.2021 before the
expiry of statutory period, as such, it is
clearly noticed that Rule 58 of the the
Rules of 1963 has been flagrantly violated
by the respondents in cancellation of their
lease in pursuance of the show cause notice
dated 12.9.2021. Therefore, on this ground
also the cancellation order is illegal and
arbitrary and violative of Rule 58 of the
Rules of 1963.

31. In view of the aforesaid facts and
circumstances,
this
Court
is
of
the
considered view that the impugned order
dated 29.6.2022 passed by the State
Government
in
Revision
No.11
(R)/VSM/2022 as well as order 26.4.2021
passed by opposite party No.3 i.e. District
Magistrate, Banda are illegal and arbitrary,
hence, set aside.

32. Considering the seriousness of the
allegations and the amount of recovery the
respondents are given liberty to proceed
against the petitioner in accordance with
law, if they so choose.

33. In view of the above, the writ
petition stands allowed.
----------
(2023) 3 ILRA 290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.03.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 4897 of 2022

Smt. Shivani Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents:
C.S.C., Divyarth Singh Chuahan, Meenakshi
Singh Parihar

A. Civil Law - Custody of Minor daughter -
The Juvenile Justice (Care And Protection
Of Children) Act, 2015 - Section 101 -
Appeal - Power of Appellate Authority to
take Additional Evidence - the Juvenile
Justice Act does not given any power to
the
Appellate
Authority
to
receive
additional evidence - It can only examine
and decide the appeal on the grounds, on
which the same has been filed - In case
the appellate authority is of the view that
the order of the committee is incorrect
and that it should have taken/considered
more evidence/material, then it could
have remanded the matter back to the
committee to decide the matter afresh,
but it certainly did not have any power to
receive "additional evidence" (Para 42)

B. Civil Law - Custody of minor child, in
need of care and protection - Family
Courts Act, Sections 7 (1)(a), (g) & 20 -
The Juvenile Justice (Care And Protection
Of Children) Act, 2015 - Child Welfare
Committee (CWC) - jurisdiction in relation
to the proceedings qua the custody or
access to any minor lies with the Family
Court - the Child Welfare Committee,
under
The
JJ
Act,
neither
has
the
jurisdiction nor the power to decide
contested
claims
pertaining
to
guardianship and custody of minor - If at
the behest of one of the parents, a
complaint is made before the CWC, with
regard to abuse of the child by the other
parent or person, and custody is also
sought by such parent or person, then the
Committee would be within its powers to
declare the child to be in need of care and
protection, and send him to a fit facility of
children's
home
etc.
pending
determination/adjudication by court of
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
291
competent jurisdiction on questions of
custody
-
Power
exercised
by
the
committee is administrative in nature,
rather than judicial (Para 30, 34)

C. Civil Law - Procedure in Relation to
Children in Need Of Care And Protection -
the Juvenile Justice (Care and Protection
of Children) Act, 2015 (2 of 2016) -
Sections 31 & 36 - the Juvenile Justice
(Care and Protection of Children) Model
Rules, 2016 - Rule 18 & 19 - Any child in
need of care and protection is to be
produced before the Committee - the
Committee is to hold an inquiry and after
interaction with the child may issue
directions for placing the child with the
parent or guardian or Children's Home, or
direct the placing of the child in safe
custody of a fit person or a fit facility - the
objective
of
the
committee
is
rehabilitation of the child - Held - in the
instant case, there is no mention of the
child being examined by the committee
which
was
the
primary
duty
and
responsibility (Para 40)

D.
The
Juvenile
Justice
(Care
And
Protection Of Children) Act, 2015 - Child
Welfare Committee - In the instant case,
procedure and manner adopted by the
was absolutely arbitrary - Committee,
without giving any opportunity of hearing
to the petitioner (mother), to defend
herself, decided the matter of custody of
her minor daughter and held that she was
unable to look after the welfare of the
child - The copy of the complaint was
never supplied to the petitioner (mother)
nor was she supplied any documents
which
were
relied
upon
by
the
complainant
before
the
committee
-
Committee
relied
upon
information
published in newspaper articles, and
attributed
disease
of
"fbing",
still
unknown to the medical science, to the
petitioner (mother) - Committee was fully
aware that the grandfather who was the
complainant was 78 years' old and still
proceeded to declare him a fit person only
to hand over the custody of the minor
child
while
respondent
No.5
was
a
resident of NOIDA living with her husband
and would not be in a position to look
after the minor child at Sultanpur but she
was also declared a fit person and custody
handed over - order of the Committee was
illegal and arbitrary and suffered from non
application of mind (Para 40)

Allowed. (E-5)

List of Cases cited:

1. Geetanjali Dogra Vs State & ors. CM(M)
1140/2018

2. Tasleema Begum Vs The State Of West
Bengal & Ors (Cal HC) W.P. No.19557(W) of
2017 04.01.2018

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard the petitioner in person, Sri
H. G. S. Parihar, Senior Advocate assisted
by
Sri
Divyarth
Singh
for
private
respondents and learned Standing counsel
for the State-respondents.

2. The petitioner, who is the mother of
a minor girl child, has assailed the order
dated 17/08/2021 passed by the Child
Welfare Committee, Sultanpur whereby the
custody of the minor has been handed over
to her father-in-law, husband and sister-inlaw and has also assailed the order dated
06/12/2021
passed
by
the
appellate
authority upholding the order of the Child
Welfare Committee (hereinafter referred to
as the Committee), and dismissing the
appeal preferred by the petitioner.

3. The present controversy is an
outcome of an embittered matrimonial
relationship between the petitioner and her
husband, respondent No. 4. The marriage
between the petitioner and respondent No.
4 was solemnised on 21/01/2014 and out of
the said wedlock a daughter was born on
30/10/2015. The petitioner and respondent
292 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 4 lived for 2 years at Sultanpur, where
respondent No. 4 is running nursing
schools, and sometimes in 2017 the
petitioner along with minor daughter
shifted to Lucknow, while respondent no.4
continued to live and work at Sultanpur
visiting the petitioner and his daughter
during the weekends. The minor child was
admitted to a school at Lucknow and
according to the petitioner the relationship
between her and her husband as well as her
in-laws was cordial prior to 25/08/2021, on
which date the petitioner was directed to
appear before the Committee, Sultanpur.

4.
A
complaint
was
made
by
respondent No. 3, father-in-law of the
petitioner to the Committee, Sultanpur
seeking custody of his grand daughter. He
stating
in
his
complaint
that
his
granddaughter was born on 30/10/2015 at
Lucknow. His son and daughter-in-law
were living with him after their marriage,
when
after
2
years
the
petitioner
pressurised her husband to shift to
Lucknow to secure better education for the
child and subsequently the petitioner and
the minor child shifted to Lucknow.
Number of allegations have been levelled
in the said complaint against the petitioner
for not looking after and neglecting the
minor daughter. In support of the complaint
CCTV images, certificates of various
specialist in medical field were also
submitted and accordingly prayed for
interim custody of the minor child.

5. The Chairman of the Committee
issued
notices
to
the
petitioner
on
02/08/2021 to appear on 04/08/2021. On
04/08/2021 the District Probation Officer
was directed to conduct counselling of the
minor and submit his report. Again on
04/08/2021 notice was sent to the petitioner
for appearance before the Committee on
06/08/2021. Another notice was sent on
06/08/2021 directing the petitioner to
appear along with minor daughter on
11.08.2021. It was ordered that the notice
be served on the petitioner through Smt
Geeta Verma, the Counsellor. The order
sheet of 12/08/2021 indicates that the
Committee noted that service could not be
affected upon the petitioner and hence she
was telephonically informed to appear
before the Committee on 13/08/2021 and
again on 13/08/2021 she was directed to
appear on 16/08.2021.

6. On 16/08/2021 the petitioner
along with the minor child appeared
before the Committee, where according
to the order sheet the petitioner refused to
sign on the statement made by her, and
the entire proceedings were concluded on
16/08/2021 itself, and the matter was
reserved for orders, which was delivered
on 17/08/2021.

7. The Committee by means of
impugned order dated 17/08/2021 accepted
and allowed the complaint made by
respondent no.3 and returned a finding that
the petitioner is a victim of mental illness
due to which she becomes violent. Even the
adjournments sought by her before the
Committee were attributed to her mental
illness. The petitioner denied the medical
reports submitted by her father-in-law as
the same at been prepared under his
influence as he had retired as Director
General
Medical
and
Health.
The
Committee also relied upon an article
published
in
a
local
newspaper
on
06/07/2021 with regard to "Paranoid
Personality Disorder" and concluded that
the petitioner also is suffering from the
same disorder due to which she can become
violent and such persons do not accept their
fault.
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
293

8.
In
the
impugned
order
the
Committee has also held that the petitioner
is suffering from "Fbing" which according
to them is a disease where a person uses his
phone excessively and consequently held
that due to "Fbing" she neglects her minor
daughter.

9. The Committee considered the fact
that the complainant, who is father-in-law
of the petitioner, retired from a very high
post of Director General, Medical and
Health Services, Uttar Pradesh and is
financially capable of looking after the
minor child. Though he is 78 years old and
therefore for looking after the minor he will
be supported by his son, respondent No. 4
and his daughter Ruchi Singh - respondent
No. 5, who is living with her husband in
NOIDA, gave an undertaking that they will
look after the minor child effectively and
accordingly the custody of the minor child
was taken away from the petitioner and
given to respondent no. 3, 4 and 5.

10. The petitioner being aggrieved by
the order of the Committee, Sultanpur
dated 17/08/2021 preferred an appeal
before the District Magistrate, Sultanpur
specially on the ground that the Committee
had in the most illegal and arbitrary manner
without giving any opportunity of hearing
to the petitioner decided the matter of
custody of her minor daughter and no
procedure was followed apart from the fact
that she was never given the copy of the
complaint, nor was he supplied any
documents which were relied upon by the
complainant before the committee. She
further submitted that she was never given
any opportunity to defend herself, which is
evident from the fact that even some
statement was not signed by her, and entire
proceedings were concluded in extremely
hurried manner on 16/08/2021 itself. She
denied that Councillor Geeta Verma had
ever met her, and no document was
examined by the Committee which would
indicate that she was mentally unstable and
unable to look after her daughter.

11. The petitioner being aggrieved
with the order of Committee preferred an
appeal before the District Magistrate, who
has dismissed the appeal vide order dated
06.12.2021. The District Magistrate has
admitted that the order of the Committee
does not refer to any CCTV footage, but
proceeded to take on record himself
additional evidence holding that under the
Civil Procedure Code as well as under the
Criminal
Procedure
Code
there
was
expressed provision of taking additional
evidence at the appellate stage, and
considering himself to be clothed with all
the powers and authority of "appellate
court" proceeded to examine the additional
evidence placed by the respondents and
only on the basis of the additional evidence
came to conclusion that the petitioner was
suffering from mental illness and was also
subjecting the minor child with physical
assault and abuse. The District Magistrate
rejected the arguments of the petitioner that
respondent no.3 was
responsible
for
divorce of his elder son, and that
respondent no.4, her husband was addicted
to liquor and a drunkard and hence custody
her minor daughter could not be given to
either of them, as no evidence was adduced
be her in this regard. He also concluded
that
the
petitioner
was
informed
telephonically about the date fixed before
the
Committee
and
hence
she
was
sufficiently served. On the basis of the
material produced before him he was
satisfied that the conditions exist where
living of the minor child with mother may
be harmful for the child and dismissed the
appeal but granted her visiting rights.
294 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The petitioner has assailed the
impugned orders passed by the Committee
as well as the appellate order passed by the
District Magistrate on the ground that the
Committee has exceeded its jurisdiction in
taking the custody away from the natural
mother and handing it over to his
grandfather was not the natural guardian of
the minor child. It was submitted that in
case the respondents wanted the custody of
the minor child then the appropriate forum
is only under the provisions of Family
Courts
Act,
Hindu
Minority
and
Guardianship Act, or under the provisions
of the Guardians and Wards act 1890,
before the appropriate Court and not before
the Committee under the juvenile Justice
act. It was submitted that the entire
proceedings are without jurisdiction and
liable to be set aside as such.

13. Sri H. G. S. Parihar, Senior
Advocate appearing for the respondents, on
the other hand, has vehemently opposed the
writ petition. He supported the impugned
orders passed by the Committee as well as
the District Magistrate and submitted that
the
Committee
had
exercised
the
jurisdiction vested in it. It was submitted
that various CCTV footages and other
documentary evidence was available and
submitted before the appellate authority
and after proper examination of the same,
concluded that the minor was a "child in
need of care and protection" as she was
physically abused by her mother, who was
also found to be suffering from mental
illness.

14. A divorce petition filed by the
respondent no.4 is pending before the
Family
Court,
Lucknow
being
case
no.2497of 2021 and also a criminal case
has been lodged against the petitioner being
FIR no.0499/2021 has been lodged against
the petitioner under sections 323,504 and
506 IPC.

15.
Sri
H.G.S.
Parihar,
Senior
Advocate has submitted that according to
the definition of "child in need of care" as
provided in section 2(14) Of the Juvenile
Justice Act, 2015 the daughter of the
petitioner would fall in definition in
subclause (iii) therein as the petitioner is
alleged to have injured, neglected the child.
Once the child is declared to be a child in
need of care, then the child is to produced
before the committee as provided for in
section 31 Juvenile Justice Act, and after
enquiry conducted under section 36 of the
act, custody can be given to a fit person. In
the present case the report of councillor
Smt Geeta Verma was sought for and only
thereafter, order for custody has been
passed in terms of section 37 for placing
the child with her grandfather, father and
Bua (aunt) who have been declared to be fit
persons.

16. Considering the argument of the
petitioner with regard to be jurisdiction
of the Committee to consider and decide
the aspect of the custody of minor child,
specially removing the child from the
custody of the mother, and handing the
same to the grandfather, it is necessary
to examine the statutory provisions as
Provided for in the Juvenile Justice
(Care and Protection of Children) act
2015.

17. Section 2(14)(iii) of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 provides to the effect:

2. In this Act, unless the context
otherwise requires- .....

.....

.....
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
295

(14) "child in need of care and
protection" means a child--

(i)......

(ii).....

(iii) who resides with a person
(whether a guardian of the child or not)
and such person--

(a) has injured, exploited, abused
or neglected the child or has violated any
other law for the time being in force meant
for the protection of child; or

(b) has threatened to kill, injure,
exploit or abuse the child and there is a
reasonable likelihood of the threat being
carried out.

(c) has killed, abused, neglected
or exploited some other child or children
and there is a reasonable likelihood of the
child in question being killed, abused,
exploited or neglected by that person;"

18. It is essential to observe that in
terms of Section 2(23) of the very same
enactment provides to the effect:

2(23) "Court" means a civil
court, which has jurisdiction in matters of
adoption and guardianship and may
include the District Court, Family Court
and City Civil Courts."

19. The petitioner has placed reliance
on the provisions of Section 26 of the
Hindu Marriage Act, 1955 which provides
as follows:

"Section 26. In any proceeding
under this Act, the court may, from time to
time, pass such interim orders and make
such provisions in the decree as it may
deem just and proper with respect to the
custody, maintenance and education of
minor children, consistently with their
wishes, wherever possible, and may, after
the decree, upon application by petition
for the purpose, make from time to time,
all such orders and provisions with respect
to the custody, maintenance and education
of such children as might have been made
by such decree or interim orders in case
the proceeding for obtaining such decree
were still pending, and the court may also
from time to time revoke, suspend or vary
any such orders and provisions previously
made."

20. Inter alia the petitioner places
reliance on the provisions of Sections 6(a)
& 13 of the Hindu Minority and
Guardianship Act, 1956, which read to the
effect:-

"Section
6.
The
natural
guardians of a Hindu minor; in respect of
the minor's person as well as in respect of
the minor's property (excluding his or her
undivided
interest
in
joint
family
property), are--

(a) in the case of a boy or an
unmarried girl--the father, and after him,
the mother: provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother;

and

Section
13.
(1)
In
the
appointment of declaration of any person
as guardian of a Hindu minor by a court,
the welfare of the minor shall be the
paramount consideration.

(2) No person shall be entitled to
the
guardianship
by
virtue
of
the
provisions of this Act or of any law
relating to guardianship in marriage
among Hindus, if the court is of opinion
that his or her guardianship will not be for
the welfare of the minor."

21. The petitioner has also placed
reliance on the provisions of Sections 12 &
296 INDIAN LAW REPORTS ALLAHABAD SERIES
25 of the Guardians and Wards Act, 1890,
which reads to the effect:-

"12. (1) The Court may direct
that the person, if any, having the custody
of the minor shall produce him or cause
him to be produced at such place and
time and before such person as it
appoints, and may make such order for
the temporary custody and protection of
the person or property of the minor as it
thinks proper. (2) If the minor is a female
who ought not to be compelled to appear
in public, the direction under sub-

section (1) for her production
shall require her to be produced in
accordance
with
the
customs
and
manners of the country.

(3) Nothing in this section shall
authorise--

(a) the Court to place a female
minor in the temporary custody of a
person claiming to be her guardian on
the ground of his being her husband,
unless she is already in his custody with
the consent of her parents, if any, or

(b) any person to whom the
temporary custody and protection of the
property of a minor is entrusted to
dispossess otherwise than by due course
of law any person in possession of any of
the property.

25. (1) If a ward leaves or is
removed from the custody of a guardian
of his person, the Court, if it is of opinion
that it will be for the welfare of the ward
to return to the custody of his guardian,
may make an order for his return, and for
the purpose of enforcing the order may
cause the ward to be arrested and to be
delivered
into
the
custody
of
the
guardian.

(2) For the purpose of arresting
the ward, the Court may exercise the
power conferred on a Magistrate of the
first class by section 100 of the Code of
Criminal Procedure, 1882 (10 of 1882).

(3) The residence of a ward
against the will of his guardian with a
person who is not his guardian does not of
itself terminate the guardianship."

22. Significantly, Section 7 of the
Family Courts Act, 1984 provides for the
jurisdiction conferred on a Family Court
and spells to the effect:-

"7. (1) Subject to the other
provisions of this Act, a Family Court
shall--

(a) have and exercise all the
jurisdiction exercisable by any district
court or any subordinate civil court under
any law for the time being in force in
respect of suits and proceedings of the
nature referred to in the Explanation; and

(b) be deemed, for the purposes
of exercising such jurisdiction under such
law, to be a district court or, as the case
may be, such subordinate civil court for the
area to which the jurisdiction of the Family
Court extends.

Explanation.--The
suits
and
proceedings referred to in this sub-section
are suits and proceedings of the following
nature, namely:--

(a) a suit or proceeding between
the parties to a marriage for a decree of
nullity of marriage (declaring the marriage
to be null and void or, as the case may be,
annulling the marriage) or restitution of
conjugal rights or judicial separation or
dissolution of marriage;

(b) a suit or proceeding for a
declaration as to the validity of a marriage
or as to the matrimonial status of any
person;

(c) a suit or proceeding between
the parties to a marriage with respect to the
property of the parties or of either of them;
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
297

(d) a suit or proceeding for an
order or injunction in circumstance arising
out of a marital relationship;

(e) a suit or proceeding for a
declaration as to the legitimacy of any
person;

(f) a suit or proceeding for
maintenance.

(g) a suit or proceeding in
relation to the guardianship of the person
or the custody of, or access to, any minor.
(2) Subject to the other provisions of this
Act, a Family Court shall also have and
exercise--

(a) the jurisdiction exercisable by
a Magistrate of the first class under
Chapter
IX
(relating
to
order
for
maintenance of wife, children and parents)
of the Code of Criminal Procedure, 1973 (2
of 1974); and

(b) such other jurisdiction as may
be conferred on it by any other enactment."

23. Section 20 in Chapter-6 of the
Family Courts Act, 1984 provides to the
effect:-

"20. The provisions of this Act shall
have
effect
notwithstanding
anything
inconsistent therewith contained in any other
law for the time being in force or in any
instrument having effect by virtue of any law
other than this Act."

24. It is apparent thus that in view of the
Family Courts Act, the provisions of Section
7 (1)(a) and (g) read with Section 20 of the
said enactment makes it apparent that
jurisdiction in relation to the proceedings qua
the custody or access to any minor has to be
essentially determined by the Family Court
and cannot fall within domain of the
Committee in terms of Section 2(14)(iii) of
the Juvenile Justice (Care and Protection of
Children), Act, 2015.

25. Considering the aforesaid, it is
noticed that the procedure in relation to
children in need of care and protection is
provided in Chapter VI of the Act. The
procedure commences with Section 31 which
deals with production of the child in need of
care and protection before the Committee by
any of the authorities specially mentioned
therein which are police officer Special
Juvenile Police Unit, Designated Child
Welfare Police Officer, any Officer of the
District Child Protection Unit, Inspector
appointed under Labour law, any public
officer, Childline services or any volunteer
non-governmental organisation or any agency
as recognised by the State government, Child
Welfare Officer or Probation Officer, and the
social worker or a public spirited citizen, by
the child himself or any nurse, doctor or
management of a nursing home, hospital or
maternity home.

26. According to Section 36 of the Act
enquiry is to be conducted by the
committee on production of a child or
receipt of a report under section 31. A
conjoint reading of section 36 and section
31 would make it clear that the child firstly,
has to be produced before the Committee
by the authorities mentioned therein, and
on such production of the child before the
Committee an enquiry is to be conducted,
and after consideration of the said enquiry
appropriate order has to be passed whether
to send the child to children's home or in a
fit facility or fit person. At this stage we
may also like to observe that the enquiry
can be conducted by the committee even on
the basis of a report under section 31 of the
Act. A perusal of the Juvenile Justice (Care
and Protection of Children) model rules,
2016 also provide in rule 18 about
production
of
the
child
before
the
committee, and only after the child is
produced before the committee and the
298 INDIAN LAW REPORTS ALLAHABAD SERIES
report in this regard is submitted, the
committee proceeds to conduct the enquiry,
and thereafter if the facts warrant, declare
the child to be a child in need of care and
protection.

27. The scheme of the Act also
indicates that the enquiry commences only
after the production of the child before the
committee as per section 36 of the act, and
appropriate orders can be passed which are
provided for in section 37 of the Act.

28. After examining the various
provisions of the Juvenile Justice Act,
2015, it becomes clear that the golden
thread underlying the scheme is the
rehabilitation of the minor child. In section
36(3) it is provided that after completion of
the enquiry the committee is of the opinion
that the child has no family or ostensible
support or is in continued need of care and
protection, it may send the child to
specialised adoption agency. Section 37
provides that after the committee declares
the child to be in need of care and
protection, its primary task is to restore the
child to the parent or guardian or family,
failing which the minor is to be placed with
Children's Home, fit facility, specialized
adoption agency etc. Section 38 of the act
further provides with regard to the
orphaned or abandoned child where the
Committee is required to make all efforts
for placing such children with their parents
or guardians failing which they are
declared as child legally free for adoption.
Chapter VII is entirely dedicated towards
rehabilitation and social reintegration of the
children, where it is provided that the
restoration and protection of a child shall
be the primary objective of any children's
home, specialised adoptive agency or
orphan
shelter.
Considering
aforesaid
provisions contained in the Juvenile Justice
Act, 2015 it becomes abundantly clear that
the
objective
of
the
committee
is
rehabilitation of the child. When a child is
produced before the committee, an enquiry
is initiated by the committee. In the said
enquiry all the available details regarding
the child are gathered. His medical and
psychological
examination
may
be
conducted,
pursuant
to
which
the
declaration is required to be made that the
child is in need of care and protection, and
thereafter in accordance provisions laid
down the child can be sent any of the
places including children's home, fit
institution or for fit person etc.

29. The jurisdiction of the Committee
is limited to passing necessary orders after
making an "enquiry". If the child is found
to be a child in need of care and protection
necessary orders as envisaged in the act can
be passed. There may be cases where there
are allegations of abuse of the child by his
own parents, or the child may be
voluntarily handed over/surrendered by the
parents as provided in section 35 of the act,
in which case the committee can send the
child appropriate place including fit person,
fit institution, children's home etc., after
following the due process.

30. A bare perusal of the statutory
scheme clearly indicates that it the
Committee as constituted and empowered
under the Act of 2015, does not envisage
judicial determination of disputed facts,
where at the behest of one of the parents a
complaint is made with regard to abuse of
the child by the other parent or person, and
custody is also sought by such parent or
person. If such a case arises then the
Committee would be within its powers to
declare the child to be in need of care and
protection, and send him to a fit facility of
children's home etc. pending determination/
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
299
adjudication
by
court
of
competent
jurisdiction on questions of custody but
handing over of the custody to the other
parent or relative, would amount to
deciding a matter regarding custody of
minor, and as such, it cannot be done
merely on basis of a limited enquiry as
envisaged in section 31 of the Act.
Disputed questions of fact and law would
have to be judicially determined, which
matter, as discussed earlier would be only
for
the
regular
Courts
exercising
jurisdiction under the Family Courts Act,
Hindu Minority and Guardianship Act or
the Guardians and Wards Act to decide the
issue of custody of a minor child from one
parent to another or from one parent to
another person in the interest of the child.
This is also in consonance with the
definition of "Court"provided in Section 2
(23) of the Juvenile Justice Act, 2015
where
in
matters
of
adoption
and
guardianship court would means the civil
court which has jurisdiction in the matter.

31. Section 40 of the juvenile Justice
act would also indicate that it would be the
primary duty of the committee to restore a
child in need of care and protection, to its
parents. Even section 40 of the Act cannot
be interpreted to mean that the custody can
be taken away from one parent and given to
another, as under the said section the word
used is "restoration" and "parents" and
hence only where the child has fled from
home, or is found in illegal custody of third
person etc. can he be restored to his parents
after following the procedure. It is clear
that custody of a child with one parent
cannot be transferred to another parent or
relative in exercise of power under section
40 of the Act.

32. A petition under Section 13 of the
Family Courts Act in case no.2479 of 2021
is pending before the Family Court,
Lucknow filed by respondent no.4 against
the petitioner, where the issue of custody of
the minor child can be appropriately dealt
with and decided.

33. Another important aspect which
persuades us from holding that the
Committee is not empowered to decide
contentious custody matters is the scheme
of the Juvenile Justice Act, where the
procedure provided is limited to holding an
enquiry as per section 37 of the Act of 2015
on the production of the child who is in
"need of care and protection". On the
completion of the enquiry if the committee
is of the opinion that the child has no
family or ostensible support and continued
need of care and protection it may send the
child to special adoptive agency. While
exercising such power, the welfare of the
child is of the utmost importance, which
has to be objectively determined by the
Committee on the basis of the material on
record.

34. A perusal of the provisions dealing
with the manner of exercise of power
vested in the Committee is limited to
passing necessary orders for the protection
of the child keeping in mind his/her best
interest. The power exercised by the
committee is administrative in nature,
rather
than
judicial,
which
involves
determination disputed questions of law
and fact. Only the facts have to be
ascertained in an enquiry, and orders have
to be passed in the best interest of the child.
Matters pertaining to grant of custody to
either of the parents where the matter is
contested between the husband-and-wife,
where both claim to be in a better position
to have the custody of the minor, then the
issues have to be determined judicially
after due process and not in a summary
300 INDIAN LAW REPORTS ALLAHABAD SERIES
manner as per the provisions contained in
the Juvenile Justice Act, 2015, and for this
reason also, matters of guardianship and
custody of minors are to be decided by the
competent civil courts after taking evidence
and giving proper opportunity of hearing to
either side. In this regard Section 2(23) of
the juvenile justice act has also to be taken
account of which defines the "Court" to be
a civil court which has jurisdiction in the
matters of adoption and guardianship and
may include District court, Family court
and City Civil Courts. Therefore, with
regard
to
matters
pertaining
to
guardianship, even according to Juvenile
Justice Act, 2015, it is the civil courts
which
would
have
precedence
and
exclusive jurisdiction in deciding such
matters, and hence this Court is of the
considered view that the Committee neither
has the jurisdiction nor the power to decide
contested claims pertaining to guardianship
and custody of minor.

35. The Delhi High Court in the case
of Geetanjali Dogra Vs State and Others
CM(M) 1140/2018 while considering the
powers of the Committee with regards to its
powers to deal with the matters regarding
visitation rights of one of the parent, after
examining the provisions of the Juvenile
Justice act held as under:-

"30. It is apparent thus that in
terms of provisions of the Guardians and
Wards Act, 1890 powers are conferred on
the Court of competent jurisdiction to
decide
the
aspects
of
guardianship,
visitation and access to a minor child and
as observed elsewhere hereinabove, in the
circumstances of the instant case where
there is litigation pending between the
parties
i.e.
the
petitioner
and
the
respondent no.2 before the Family Courts,
Delhi, the respondent no.2 could not have
resorted to a mode to detract from the
adjudication qua the rights of access to the
minor child, which are to be made by a
Court of law.

31. On a consideration of the
submissions that have been made on behalf
of either side, as observed hereinabove, in
terms of Section 7(1) of the Family Courts
Act, 1984, taking the same into account and
the aspect that there is a litigation pending
in the Family Court between the mother of
the minor child and the father of the minor
child as has been submitted on behalf of the
petitioner and not refuted on behalf of the
respondent no.1 in as much as the
proceedings for maintenance are pending
before the said Court, it is apparent that
jurisdiction to grant permission or access
to the respondent no.2 to the minor child in
the circumstances of the instant case is
vested with the Family Court concerned
alone.

32. Furthermore, it cannot be
overlooked that Article 9(1) of the UNCRC
which reads to the effect:

"1. States Parties shall ensure
that a child shall not be separated from his
or her parents against their will, except
when competent authorities subject to
judicial review determine, in accordance
with applicable law and procedures, that
such separation is necessary for the best
interests of the child. Such determination
may be necessary in a particular case such
as one involving abuse or neglect of the
child by the parents, or one where the
parents are living separately and a decision
must be made as to the child's place of
residence."

also makes it apparent that it
cannot be read in isolation and cannot be
read in disregard of the domestic law.

36. The Calcutta High Court in the
case of Tasleema Begum vs The State Of
3 All. Smt. Shivani Singh Vs. State of U.P. & Ors.
301
West Bengal & Ors W.P. No.19557(W) of
2017 decided on 4 January, 2018 in similar
circumstances has held:-

"In the present case, there is a lis
pending for the custody of the children
before
the
District
Judge.
Such
proceedings, however, will decide the
person who will be treated as a guardian of
the children concerned. The Committee can
in the interregnum provide for the welfare
of the children.

Priya Yadav (supra) is of the view
that, the Act of 2015 read with the Juvenile
Justice (Care and Protection of Children)
Rules, 2016 does not confer power to give
custody of a child taking it from the mother
and giving it to the father in the facts of
that case."

37. A perusal of the aforesaid
judgement is passed by the Delhi High
Court as well as the Calcutta High Court
would indicate that both the High Court's
have also taken a similar view that the
provisions of the Juvenile Justice Act does
not give it the power to decide contested
and disputed matters pertaining to custody,
while it can only as an interim measure,
pass appropriate orders in the welfare of the
child.

38. Though the finding recorded
hereinabove would have been sufficient to
conclude/decide the present case, but the
manner in which the Committee has
proceeded to decide the case as well as the
District Magistrate exercising his power of
appeal, requires a special mention.

39. The Committee constituted under
the Juvenile Justice Act is tasked with the
sole objective of acting in the best interest
of the child. The individuals manning the
Committee are expected to be objective in
their approach, be sensitive to the needs of
the child and take a holistic view of the
situation presented before them and are
required to deal with regard to the children
in need of care and protection with great
circumspection and exploring all possible
solutions, before reaching an informed
decision with regard to the minor. Any
decision short of the above attributes, is
liable to be infirm and may turn out to be
counter-productive to the best interest of
the child. In present Case the complaint
was made by the grandfather of the child
levelling allegations against his daughterin-law
(petitioner)
about
abuse
and
mistreatment of the child, and in turn had
sought custody of the minor. It is only after
directions were issued by this court on
22.07.2021 that the Committee decided to
take up the issue. Notices were issued to
the
petitioner
on
02.08.2021
and
04.08.2021 directing her to appear on
04.08.2021 and 06.08.2021 respectively. It
is not understood as to how the Committee
expected the notices to be served within
two day's by speed post. According to the
order-sheet the petitioner was informed on
telephone to appear on 16.08.2021.