Prima Facie State Human Rights Commission Has No Jurisdiction To Deal With Child Custody Issues: Allahabad HC

A bench of Justice Rajan Roy and Justice Brij Raj Singh took exception to and ultimately stayed the Commission's orders, which included directions to present the children before the commision for recording of their statements regarding their custody.

The facts in brief

Essentially, on November 6, 2024, a woman (mother of two minor children) died under mysterious circumstances. Her parents (opposite party no. 4 and 5) filed a criminal case against her husband, who is currently in jail. The FIR was lodged under Sections 103(1), 115(2), 852, and 351(2) BNS, 2023.

Thereafter, the father of the deceased (opposite party no. 4) submitted an application to the UP DGP on November 11, 2024, claiming that the two minor children of the deceased were essential witnesses in the ongoing criminal case; however, their whereabouts were unknown.

The application also raised concerns about their safety, claiming that their lives were in danger. In the application, he requested the UP DGP to locate the children and hand them over to him and his wife, claiming that they were the only ones who cared for their welfare.

Since a copy of this application was also sent to the Chairman of the State Human Rights Commission (SHRC), the Commission took cognizance of the matter. It issued an order requiring the Investigating Officer (IO) to submit a report regarding the children's welfare.

In response, the IO submitted a report stating that the two children were in the custody of Sarju Prasad Dwivedi, an advocate (petitioner no. 2), and Ashwani Kumar, the cousin of petitioner no. 1.

On November 14, 2024, the SHRC considered the report and ordered the Investigating Officer to produce the children before it on November 19, 2024, to record their statements about the issue of their custody.

Furthermore, the commission also directed the petitioner nos. 1 and 2 (relatives of the children from their father's side) to produce the children before the Commission.

On December 5, 2024, another order was issued by the SHRC, taking note of the ill health of petitioner no. 2, who was unable to appear before the Commission with the children. The Commission directed the Investigating Officer to verify this claim.

Now, the petitioners moved the HC, challenging both the order of the Commission, arguing that the custody of the minor children is not an issue which can be gone into or adjudicated by the Human Rights Commission, more so when no violation of human rights had been alleged.

It was also contended that the issues pertaining to custody etc. are to be seen by the appropriate court/forum as prescribed in law such as the Guardians and Wards Act, 1890, the Commission for Protection of Children Rights Act, 2005, Juvenile Justice Act etc, the Commission has no role in the present case.

After hearing the parties and perusing the record, the Court noted that IO had already recorded the statements of the child once and that no hindrance would be created if their further statements were to be recorded.

So far as the question of custody was concerned, the Court prima facie opined that the State Human Rights Commission had exceeded its jurisdiction while making observations in the orders dated that the statement of the children was necessary to be recorded before the Commission for the purposes of custody and seeing their attendance for the said purpose.

“The Commission, prima facie, may not have jurisdiction so far as custody of children is concerned, as there are specific remedies prescribed in this regard in other statutes,” the Cort remarked.

In view of this, the Court stayed the impugned orders in so far as the Commission proposes to proceed in the matter with regard to custody of petitioner nos. 3 and 4 and their production before it in this regard.

The Court also clarified that it would be open for the Investigating Officer to take all steps necessary to investigate the criminal case and that petitioners nos. 1 and 2 shall cooperate in the same.

So far as the issue of custody is concerned, the court gave the liberty to the opposite party no. 4 to initiate such proceedings as they may be advised to do, as per law, as also for a fair investigation in the criminal case, if required. The matter is now listed for hearing after 8 weeks.

Appearances

For petitioner: Advocate Gaurav Mehrotra,

For opposite party no. 4 and 5: Advocate Aproova Tiwari,

For respondent no. 1: Advocate Shikhar Anand,

For state: Additional Chief Standing Counsel Ratnesh Singh Tomar