On scrutinizing the averments in
O.P.No.411/2024, it shows that that the 3rd respondent
does not have a case that his child is a child in need of
care and protection so as to attract the provisions of the
Juvenile Justice (Care and Protection of Children) Act,
2015. Even otherwise the respondent in the petition is
the biological mother of the child. Furthermore, the
filing of a second petition for an identical relief is
unwarranted because the Family Court is the Court of
competent jurisdiction to decide on the interim and
permanent custody of the child. The Family Court has
concurrent jurisdiction with the 1st respondent in matters
concerning the welfare of children. Since the 3rd
respondent has elected the Family Court, his subsequent
endeavour to approach the 1st respondent for identical
reliefs seems to be with an intention to harass the
petitioner. Unmindful of the above legal question, the 1st
respondent has ordered the 2nd respondent to produce
the child before them, when the matter is sub-judice
before the Family Court. {Para 4}
6. Shuttling the child between the two
Forums will cause inconvenience to the child and is
detrimental to its paramount welfare.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) NO. 35830 OF 2024
SHITHU KS Vs CHAIRPERSON, CHILD WELFARE COMMITTEE,
PRESENT
MR.JUSTICE C.S.DIAS
Dated this the 12th day of December, 2024
Citation: 2024:KER:94086.
The petitioner is the estranged wife of the 3rd
respondent. They have a son born in their wedlock. The
petitioner has filed O.P.No.59/2023 before the Family
Court, Kottayam at Ettumannor, to dissolve her marriage
with the 3rd respondent. The 3rd respondent has filed
O.P.No.576/2024 before the same Court for the custody
of his child. During the pendency of the above
proceedings, the 3rd respondent has filed
O.P.No.411/2024 before the Child Welfare Committee ―
the 1st respondent. Surprisingly, by Ext.P2 order, the 1st
respondent has directed the Station House Officer the ―
2 nd respondent, to produce the child and the petitioner
before them. The 1st respondent has not even permitted
the petitioner to raise a preliminary objection regarding
the maintainability of the petition. The 3rd respondent's
sole intention is to harass and vex the petitioner and the
child. The petition is an abuse of the process of law.
Ext.P2 order is erroneous and unsustainable in law.
Hence, the writ petition.
2. Heard: the learned counsel for the petitioner
and the learned Government Pleader.
3. The marital relationship between the petitioner
and the 3rd respondent is strained. There are matrimonial
litigations between the parties, including a petition for
the custody of their child, pending before the Family
Court. During the pendency of the proceedings before
the Family Court, the 3rd respondent has parallelly filed
O.P.No.411/2024 before the 1st respondent for an
identical relief.
4. On scrutinising the averments in
O.P.No.411/2024, it shows that that the 3rd respondent
does not have a case that his child is a child in need of
care and protection so as to attract the provisions of the
Juvenile Justice (Care and Protection of Children) Act,
2015. Even otherwise the respondent in the petition is
the biological mother of the child. Furthermore, the
filing of a second petition for an identical relief is
unwarranted because the Family Court is the Court of
competent jurisdiction to decide on the interim and
permanent custody of the child. The Family Court has
concurrent jurisdiction with the 1st respondent in matters
concerning the welfare of children. Since the 3rd
respondent has elected the Family Court, his subsequent
endeavour to approach the 1st respondent for identical
reliefs seems to be with an intention to harass the
petitioner. Unmindful of the above legal question, the 1st
respondent has ordered the 2nd respondent to produce
the child before them, when the matter is sub-judice
before the Family Court.
5. In a case of identical nature, a Division Bench
of this Court in Shaiju S and others v. Child Welfare
Committee and others [2021 (6) KHC 573] has held as
under:
“11. We must at the outset note that the Committee
committed grave error in ordering custody to the mother
when the matter is pending before the Family Court. The
Committee ought to have restrained from entertaining a
dispute which is a subject matter of lis between the
parties. We must also note that wrangling between the
spouses in regard to custody will not confer any power on
the Committee to interfere in such matters and give
custody to one of them. Going by various provisions,
including Section 2(14)(v) of the Act, the Committee's role
would arise only when none of the parents is in a position
to take care or protect the child or children. The
Committee can step into at a stage to protect a child when
parents are not in a position to protect the child. The role
of the Committee commences from the stage where both
parents are not in a position to take care and protect the
child. The parens patriae principle to intervene is to
protect the child and act as a parent of the child when
parents fail to take care and protect the child. So also is
the matter of dispute between spouses. The Committee
would be justified in interfering with the custody of child
with one of the parent, if that parent is incapacitated or
failed completely to take care of the child.
12. The Committee cannot voluntarily interfere with
the custody of the children except on a circumstance
where it forms an opinion that the child requires care and
protection. Merely because the children are isolated from
the mother by the father, Committee cannot interfere with
the legal custody of the children by the father”.
6. In the above factual and legal background, I
am of the view that the petitioner ought to be granted an
opportunity to raise a preliminary objection before the 1st
respondent regarding the entertainability of the petition.
I also hold that Ext.P2 order passed by the 1st respondent
is unjustifiable. Shuttling the child between the two
Forums will cause inconvenience to the child and is
detrimental to its paramount welfare.
Consequentially, the writ petition is allowed in
the following manner:
(i) Ext.P2 order is set aside.
(ii) The petitioner is permitted to appear before
the 1st respondent, either in person or
through Counsel, on or before 06.01.2025
and file her preliminary objection regarding
the entertainability of O.P.No.411/2024.
(iii) If such preliminary objection is filed by the
petitioner, the 1st respondent shall consider
the same, in accordance with law, after
affording the parties an opportunity of being
heard.
(iv) Until such time orders are passed on the
preliminary objection, the 1st respondent
shall not insist on the production of the child.
(v) Notwithstanding the above directions, it is
made clear that the petitioner shall abide by
the orders passed by the Family Court in
O.P.No.576/2024 regarding the custody of
the child.
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