Shuttling Child Between Two Forums Causes Inconvenience And Is Detrimental To Child's Welfare: Kerala High Court In Custody Battle
Tellmy Jolly
20 Dec 2024 11:45 AM IST
The Kerala High Court set aside an order issued by the Child Welfare Committee, which had directed the child to be produced before it without hearing the preliminary objections of the mother. The Court noted that the father filed a parallel petition before the Child Welfare Committee, while his original petition for custody was still pending before the Family Court.
Justice C S Dias observed that shuttling child between two forums would cause inconvenience to the child and would affect its well-being.
“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 (Chairperson, Child Welfare Committee) regarding the entertainability of the petition. I also hold that 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.”
In the facts of the case, the divorce proceedings were filed by the wife in the Family Court and the husband filed original petition for custody before the same Court. The husband filed another parallel petition before the Child Welfare Committee during the pendency of proceedings before the Family Court.
The Court noted that the Child Welfare Committee issued an order directing the Station House Officer to produce the child, without even hearing the preliminary objections of the mother.
The Court further observed that the father does not have a case that his child is a child in need of care and protection for invoking provisions of the Juvenile Justice (Care and Protection of Children) Act before the Child Welfare Committee.
The Court remarked that filing a second petition seeking identical relief before a different forum is 'unwarranted'. It further stated that filing a subsequent petition before Child Welfare Committee, while the issue was pending before the Family Court would show that the intention of the husband was only to harass his wife.
Court added, “Unmindful of the above legal question, the 1st respondent has ordered the SHO to produce the child before them, when the matter is sub-judice before the Family Court.”
As such the order directing for producing the child before the Committee was set aside. The Court further directed the Committee to consider the preliminary objections of the mother after giving them hearing opportunity. The Court directed that until the parents are heard, the Committee shall not insist for production of the child.
Counsel for Petitioner: Advocate Akhil Vijay
Counsel for Respondents: Government Pleader Sunilkumar Kuriakose, Standing Counsel M.U.Vijayalakshmi
Case Number: WP(C) NO. 35830 OF 2024
Case Title: xxx v Chairperson, Child Welfare Committee
Citation: 2024 LiveLaw (Ker) 815
