CWC Can't Act As Family Court In Child Custody Matters: Madhya Pradesh High Court Dismisses NGO's Plea Seeking Transfer Of Power With 10K Cost

The Madhya Pradesh High Court, Indore Bench recently dismissed a PIL that sought for transfer of power of a Family Court in respect of deciding custody of a child, to the Child Welfare Committee (CWC).The division bench of Justice Vivek Rusia and Justice Rajendra Kumar (Verma) also imposed a cost of Rs. 10,000 on the Petitioner, calling the petition to be "nothing but a misuse of the process of law".The Petitioner was mainly aggrieved by the judgment passed by a single bench of the Court in Priya Yadav v. State of M.P. & Ors., whereby it was held that CWC does not have the power to give custody of child by taking it from mother and giving it to father. A note of caution was also issued that such power should not be exercised by the CWCs functioning in the State of M.P. It was argued by the Petitioner that the aforesaid judgment was contrary to the earlier judgment passed by the Court in Sushila Singh Parihar v. State of M.P. & Ors., wherein it has been held that Section 40 of the JJ Act clearly provides that custody can be handed over after determining the suitability of a person to take care of the child and the committee has also been empowered to give suitable direction in this regard. The Petitioner had also placed reliance on the judgment passed by the Apex Court in Re-Exploitation Of Children In Orphanages In The State Of Tamil Nadu v. Union of India &Ors. The Petitioner submitted that the procedure in the family court is lengthy and complex and it takes more than a year to decide the custody of the child therefore, the power should be conferred to the CWC to entertain the disputes between the parties in respect of custody of the child. Reliance was also placed on Article 2(2), 5, 7, 1, 8, 9 and 18 of the United Nations Convention on the Rights of the Child (UNCRC). The the Petitioner thus sought for a writ in the nature of mandamus, directing CWC to deal with the matter of child right as per the UNCRC. Per contra, the Respondents contended that by way of the petition, the Petitioner was virtually seeking transfer of power of the family court or court of law to the CWC. However, they argued that such relief could not be granted in a writ petition, in light of the judgment passed in Priya Yadav case. They further submitted that the issue of guardianship with respect to the Hindus could only be decided under the provisions of the Hindu Minority and Guardianship Act,1956 and that under the said Act, the CWC is not the competent court to act upon. They also informed the Court that it has affirmed the Priya Yadav case in Piyush Yadav v. Priya Yadav & Ors. and hence, CWC cannot be allowed to supersede the power of court. Therefore, they concluded that the petition was misconceived and liable to be dismissed. The National Commission For Protection Of Child Rights (NCPCR), also a party to the petition, submitted that the Family Court Act, 1984 and Guardian and Wards Act 1890 clearly confer the power to grant custody of child by way of order and decree passed by a family court. It referred to Section 40 of the JJ Act that explicitly states that the custody of a child can be handed over after actual determination of the suitability of a person to take due and proper care of the child. It was further submitted that NCPCR is only a review and re-commendatory body which can only review the provisions prescribed under the law and make relevant recommendations and suggestions to the government. It cannot step into the domain of the family court. After examining the submissions of all the parties, the Court decided not to interfere with the judgment passed in the Priya Yadav case. It observed- "In view of the returns filed by the respondents, the petitioner is also not getting support from N.C.P.C.R. By this petition the petitioner is virtually seeking that the order passed by this Court in writ petition no.6163/2016 Priya Yadav(supra) be not implemented and that amounts to setting aside the said order whereas the coordinate Division Bench of this court has already declined to interfere with the order, therefore, this court cannot again examine the validity of the judgment and set aside it." It further held that- "This court in the case of Priya Yadav (supra) after considering all the provisions of law especially JJ Act, Family Court Act, Hindu Minority and Guardianship Act,1956 has held that the CWC cannot act as a Family Court in respect of custody of the child. The power authority and power lie with the Family Court under the statutes therefore, this petition is nothing but a misuse of the process of law." Further, examining the locus standi of the Petitioner, the Court observed- "The petitioner is claiming it to be a non-governmental organization and working for various social causes for the last two years. Except for the certificate, nothing has been brought on record to demonstrate that petitioner's organization is ...

CWC Can't Act As Family Court In Child Custody Matters: Madhya Pradesh High Court Dismisses NGO's Plea Seeking Transfer Of Power With 10K Cost

Zeeshan Thomas

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