The Allahabad High Court while allowing the petition said that the Provisions of JJ Act does not give power to decide contested and disputed matters pertaining to custody, while it can only as an interim measure, pass appropriate orders in the welfare of children.
A Single Bench of Justice Alok Mathur passed this order while hearing a petition filed by Smt Shivani Singh.
The petitioner, who is the mother of a minor girl child, has assailed the order dated 17/08/2021 passed by the Child Welfare Committee, Sultanpur whereby the custody of the minor has been handed over to her father-in-law, husband and sister-in-law and has also assailed the order dated 06/12/2021 passed by the appellate authority upholding the order of the Child Welfare Committee and dismissing the appeal preferred by the petitioner.
The controversy is an outcome of an embittered matrimonial relationship between the petitioner and her husband, respondent No 4.
The marriage between the petitioner and respondent No 4 was solemnised on 21/01/2014 and out of the said wedlock a daughter was born on 30/10/2015. The petitioner and respondent No 4 lived for 2 years at Sultanpur, where respondent No 4 is running nursing schools, and sometimes in 2017 the petitioner along with minor daughter shifted to Lucknow, while respondent no 4 continued to live and work at Sultanpur visiting the petitioner and his daughter during the weekends. The minor child was admitted to a school at Lucknow and according to the petitioner the relationship between her and her husband as well as her in-laws was cordial prior to 25/08/2021, on which date the petitioner was directed to appear before the Committee, Sultanpur.
A complaint was made by respondent No 3, father-in-law of the petitioner to the Committee, Sultanpur seeking custody of his granddaughter. He stated in his complaint that his granddaughter was born on 30/10/2015 at Lucknow. His son and daughter-in-law were living with him after their marriage, when after 2 years the petitioner pressurised her husband to shift to Lucknow to secure better education for the child and subsequently the petitioner and the minor child shifted to Lucknow. Number of allegations have been levelled in the said complaint against the petitioner for not looking after and neglecting the minor daughter. In support of the complaint CCTV images, certificates of various specialists in the medical field were also submitted and accordingly prayed for interim custody of the minor child.
The Chairman of the Committee issued notices to the petitioner on 02/08/2021 to appear on 04/08/2021. On 04/08/2021 the District Probation Officer was directed to conduct counselling of the minor and submit his report. Again on 04/08/2021 notice was sent to the petitioner for appearance before the Committee on 06/08/2021.
On 16/08/2021 the petitioner along with the minor child appeared before the Committee, where according to the order sheet the petitioner refused to sign on the statement made by her, and the entire proceedings were concluded on 16/08/2021 itself, and the matter was reserved for orders, which was delivered on 17/08/2021.
The Committee by means of impugned order dated 17/08/2021 accepted and allowed the complaint made by respondent no 3 and returned a finding that the petitioner is a victim of mental illness due to which she becomes violent. Even the adjournments sought by her before the Committee were attributed to her mental illness.
The petitioner denied the medical reports submitted by her father-in-law as the same had been prepared under his influence as he had retired as Director General Medical and Health. The Committee also relied upon an article published in a local newspaper on 06/07/2021 with regard to “Paranoid Personality Disorder” and concluded that the petitioner also is suffering from the same disorder due to which she can become violent and such persons do not accept their fault.
In the impugned order the Committee has also held that the petitioner is suffering from “Fbing” which according to them is a disease where a person uses his phone excessively and consequently held that due to “Fbing” she neglects her minor daughter.
The Committee considered the fact that the complainant, who is father-in-law of the petitioner, retired from a very high post of Director General, Medical and Health Services, Uttar Pradesh and is financially capable of looking after the minor child. Though he is 78 years old and therefore for looking after the minor he will be supported by his son, respondent No 4 and his daughter Ruchi Singh – respondent No 5, who is living with her husband in NOIDA, gave an undertaking that they will look after the minor child effectively and accordingly the custody of the minor child was taken away from the petitioner and given to respondent no 3, 4 and 5.
The petitioner being aggrieved by the order of the Committee, Sultanpur dated 17/08/2021 preferred an appeal before the District Magistrate, Sultanpur specially on the ground that the Committee had in the most illegal and arbitrary manner without giving any opportunity of hearing to the petitioner decided the matter of custody of her minor daughter and no procedure was followed apart from the fact that she was never given the copy of the complaint, nor was he supplied any documents which were relied upon by the complainant before the committee.
She further submitted that she was never given any opportunity to defend herself, which is evident from the fact that even some statements were not signed by her, and entire proceedings were concluded in an extremely hurried manner on 16/08/2021 itself. She denied that Councillor Geeta Verma had ever met her, and no document was examined by the Committee which would indicate that she was mentally unstable and unable to look after her daughter.
The petitioner being aggrieved with the order of Committee preferred an appeal before the District Magistrate, who has dismissed the appeal vide order dated 06.12.2021.
HGS Parihar, Senior Advocate appearing for the respondents, on the other hand, has vehemently opposed the writ petition. He supported the impugned orders passed by the Committee as well as the District Magistrate and submitted that the Committee had exercised the jurisdiction vested in it. It was submitted that various CCTV footages and other documentary evidence was available and submitted before the appellate authority and after proper examination of the same, concluded that the minor was a “child in need of care and protection” as she was physically abused by her mother, who was also found to be suffering from mental illness.
The Court observed that,
The District Magistrate, on the other hand, deciding the appeal against the order of the Committee has assumed the role of an “appellate court” under the Civil Procedure Code as well as Criminal Procedure Code. He has admitted that there was no reliable material before the Committee to give the custody to the respondents, but decided to entertain additional evidence, which was filed only by the respondents, and on the basis of the CCTV images and on the basis of the evidence adduced it returned a finding that the petitioner was abusing the child and mistreating her and consequently granted custody to the respondents.
With regard to the validity of the impugned appellate order, firstly, we would like to observe, that an administrative officer hearing in appeal has to decide the same in consonance with the statutory provisions which have clothed him with such power. Under the Juvenile Justice Act Section 101 provides for appeals, against the orders of the Committee. The Act does not give any power to the appellate authority to receive additional evidence, and therefore in absence of any such power the appellate authority under the Juvenile Justice Act, 2015 would not have any power to receive additional evidence. It can only examine and decide the appeal on the grounds on which the same has been filed.
Even otherwise, the Committee, who’s orders are appealed against does not take evidence, but only passes orders on the basis of “enquiry” as provided in Section 31 of the act, and certainly the appellate authority would not have any more powers than that of the body empowered to decide the matter originally.
It is in this regard that the District Magistrate has exceeded its jurisdiction and clearly misdirected himself while deciding the appeal. In case the appellate authority was of the view that the order of the committee was incorrect and that it should have taken/considered more evidence/material, then it could have remanded the matter back to the committee to decide the matter afresh, but it certainly did not have any power to receive “additional evidence”.
The provision of appeal is also provided in various other statutes to the higher authority against the orders passed by authorities prescribed therein, where they decide about matters pertaining to creation, extinguishment or defining rights under the said statutes, but such appeals cannot be equated to the power of appeal as provided to the regular courts under the Civil Procedure Code or the Criminal Procedure Code. The appellate authority under these special statutes, are in fact Tribunals of limited jurisdiction, and are vested with the power of deciding the appeal against the order of the prescribed authority and nothing more.
“Such appellate authorities are, in fact, Tribunals of limited jurisdiction exercise powers of which are circumscribed in the statute itself and they cannot arrogate to themselves the powers of an appellate court under the Civil Procedure Code or Criminal Procedure Code.
After examining the orders of the Committee as well as of the District Magistrate, the Court is of the considered view that both the orders are illegal and arbitrary and deserve to be set aside”, the Court further observed while allowing the petition.
“The order dated 17/08/2021 passed by the Child Welfare Committee, Sultanpur as well as the order dated 06/12/2021 passed by the appellate authority are hereby quashed.
The custody of the minor daughter of the petitioner is restored to the petitioner forthwith”, the Court ordered.