Ummar vs Majitha Shaji

P.G. Ajithkumar, J.

This Revision Petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is filed by the respondents in proceedings No.CWC/PTA/930/2020 dated 04.01.2023 before the Child Welfare Committee, Pathanamthitta by which the petitioners were directed to facilitate continuance of the studies of their two grandchildren. Legality and propriety of that proceedings is challenged in this Revision Petition.

On 06.01.2023, notice was directed to be served on the 1st respondent. The proceedings of the Child Welfare Committee was stayed for a period of ten days, which was extended from time to time.

The 1st respondent entered appearance through her learned counsel and filed a counter affidavit. The learned Government Pleader took notice for the 2nd respondent.

Heard the learned counsel appearing for the petitioners and the 1st respondent and also the learned Government Pleader.

Children are aged 8 years and 5 years. Respondent is the mother. The petitioners are the paternal grandparents of the children. Father of the children is abroad. The respondent along with the children were residing at the residence of the petitioners. The children were studying in Mary Matha Public School, near the residence of the petitioners in Kottayam District. The elder child was studying in Std.III and the younger child is in L.K.G. In December, 2022 following disputes between the petitioners and the respondent, she along with the children left the said house. They went to Pandalam and started residing along with a relative of the respondent there. The respondent has approached the Child Welfare Committee, Pathanamthitta complaining that the children could not go to school since the distance from her place of residence at Pandalam to the school is more and the children could commute every day. Accordingly, she sought intervention of the Child Welfare Committee so as to facilitate the studies of children by staying at the residence of the petitioners. The Child Welfare Committee, Pathanamthitta as per Annexure I proceedings dated 04.01.2023 held that in the light of the provisions of the Juvenile Justice Act and the Right of Children to Free and Compulsory Education Act, 2009, the children had to be allowed to reside in the house of the petitioners. They were instructed accordingly.

The petitioners would contend that Annexure I proceedings was issued by the Child Welfare Committee, Pathanamthitta without having jurisdiction and in violation of the provisions of the Sections 27, 29, 36 and 37 of the Jevenila Justice Act. The learned counsel appearing for the petitioners would submit that unless a child is one coming under the definition of “child in need of care and protection” as per Section 2(14) of the Juvenile Justice Act, the Child Welfare Committee does not have jurisdiction to pass any order in respect of such a child. The further contention is that since the children and the petitioners have been residing in Kottayam, and the alleged incident occurred there, the Child Welfare Committee, Pathanamthitta should not have entertained the complaint of the respondent.

The  learned  counsel  appearing  for  the  1st respondent, on the other hand, contended that the Juvenile Justice Act is a beneficial legislation and every provision in it should be interpreted so as to safeguard the interest of the children. Children were residing along with the respondent at Pandalam, which is within the local area of the Child Welfare Committee, Pathanamthitta, and therefore, the Child Welfare Committee there had every jurisdiction to entertain the complaint lodged by the respondent. It is further pointed out that Annexure I proceedings is intended to ensure continued education of the children, and therefore, it does not in any way offend the provisions of the Juvenile Justice Act.

The fact that the children were studying at a school near the residence of the petitioners in Kottayam is beyond dispute. The husband of the respondent is abroad. While the respondent along with the children was residing in the residence of the petitioners, quarrel took place and the respondent had to leave that house. The children could not attend the school thereafter, precisely from 11.12.2022.

Section 2(14) of the Juvenile Justice Act defines a “child in need of care and protection”. Clause (i) of Section 2(14) says that a child, who is found without any home or settled place of abode and without any ostensible means of subsistence, is a child in need of care and protection. Clause (v) of Section 2(14) says that a child, who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee of the Board, to care for and protect the safety and well-being of the child, also is a child in need of care and protection. Here, the children could not go to the school since they had to leave the house of the petitioners. It is the contention of the respondent that she has no means of livelihood and therefore she could not avail a rented accommodation near the school. From the available materials, it is not able to say that the respondent has enough income and means to lookafter her children. There is also nothing on record to show that she is getting any financial assistance from her husband, who is working abroad. In such circumstances, the only way to continue the education of the children is to allow them to stay in the house of the petitioners. In that view of the matter, it has to be said that the children fall within the purview of clauses (i) and (v) of Section 2(14) of the Juvenile Justice Act.

The Child Welfare Committee is constituted as per the provisions of Section 27(1) of the Juvenile Justice Act. The Child Welfare Committee is constituted to exercise its powers in relation to a child, who is in need of care and protection in the District concerned. Solely because the respondent along with the children was residing in Kottayam till recently, it cannot be said that the Child Welfare Committee, Pathanamthitta did not get jurisdiction to entertain a complaint submitted by the respondent. While residing at Pandalam along with the children, the respondent has submitted the complaint. The children were residing in Pathanamthitta district, and therefore, there was nothing wrong in the Child Welfare Committee, Pathanamthitta entertaining the complaint. The fact that the petitioners are residing outside the District, is not a reason refraining the Child Welfare Committee to entertain the complaint. Therefore, the contention referring to lack of jurisdiction of Child Welfare Committee, Pathanamthitta is untenable.

One of the contentions of the petitioners is that the Child Welfare Committee without conducting any enquiry as contemplated in Section 36 of the Juvenile Justice Act issued Annexure I proceedings and therefore it is vitiated in law. We are unable to accept that contention. The Child Welfare Committee considered only one aspect; whether the children could continue the education or not. From the materials available on record; even from the admitted case of the petitioners, it is evident that the studies of the children was interrupted as a result of their shifting residence from the house of the petitioners to Pandalam. Therefore, no detailed enquiry was necessary to conclude that the children were children in need of care and protection coming under clauses (i) and (v) of Section 2(14) of the Juvenile Justice Act.

A dispute between parents regarding custody of their child can never be the subject for decision by a Child Welfare Committee. Custody and guardianship of such a child are matters for decision by the Family Court. In this case, however, no question relating to the custody and guardianship of the children were considered by the Child Welfare Committee, Pathanamthitta. The steps taken by the Child Welfare Committee were only to ensure studies of the children. The petitioners also do not have dispute as to need of the children's continued education. In view of that matter, we are of the view that the Child Welfare Committee, Pathanamthitta did not exceed its jurisdiction while issuing Annexure I proceedings.

In such circumstances, the challenge to Annexure I proceedings on the ground of irregularity, impropriety and illegality does not sustain. The Revision Petition therefore fails and it is accordingly dismissed. We make it clear that we did not make any observation regarding the right of the respondent to reside in the house of the petitioners and that this order is not a permission to the respondent to reside in the house of the petitioners either.