The High Court of Karnataka has declared that a Child Welfare Committee (CWC) constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015, has no power to hand over the custody of a minor to either parent when the issue of custody is pending before a family court under the provisions of the Guardians and Wards Act, 1890. “The committee cannot be permitted to usurp the jurisdiction of the competent court exercising powers under the provisions of the Guardians Act. The said jurisdiction conferred by law cannot be taken away by the committee which is a statutory body,” the Court observed.
Justice Alok Aradhe passed the order on a petition filed by the mother of a 11-year-old boy questioning the order, passed by the Child Welfare Committee-1 of Bengaluru Urban handing over the custody of the child to the father when the issue of custody was pending before a family court in Bengaluru.
The family court, during the pendency of pleas by parents over child’s custody, in April 2018, had given visitation rights to the father. Meanwhile, the mother, without any direction from the family court, had handed over the child to father for the period between December 27, 2018, and January 1, 2019, to ensure that the child is not deprived of father’s affection.
Interestingly, the child on December 27, 2018, the day when he was handed over to the father, wrote a letter to the committee stating that he is scared of the mother and feels safe with the father. Following this letter, the committee discussed the issue with the mother, spoke to the child and the father, and on January 3, 2019, gave the custody of the child to the father in the interest of the child.
However, Justice Aradhe said in the order that “...even if the committee was of the opinion that the child was in need of care and protection, it ought to have referred the matter for consideration before the family court where the issue with regard to the custody of the minor was pending consideration. The usurpation of jurisdiction by the committee in a matter which is sub-judice before the court of competent jurisdiction under the Guardians Act cannot be sustained in the eye of law.”
