At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE DEBI PROSAD DEY
For the Appellant: Malay Bhattacharyya, Advocate. For the Respondent: R2, Arindam Maitra, Ayan Basu, Advocates.
1. This application under Section 401 read with Section 482 of the Code of Criminal Procedure is directed against the order dated 18th September, 2017 passed by learned Additional District and Sessions Judge, 2nd Court (POSCO, Bankura) in Miscellaneous appeal no. 2 of 2017 whereby and where under learned Judge has modified the order dated 26th May, 2017 in CWC case no. 15 of 2017 under the provisions of Juvenile Justice(Care and Protection of Children) Act. The opposite party being mother of two minor children filed an application under Section 25 of the Guardian and Wards Act (registered as Act VIII of 1890 case no. 04 of 2015) in t
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he Court of learned District Judge, Bankura for the custody of the minor daughter. Admittedly, both the children are residing with the present petitioner. The Act VIII case is still pending in the Court of learned District Judge, Bankura. In the meantime, the opposite party has also filed an application before the Child Welfare Committee, Bankura stating inter alia that her children are not getting proper education since the petitioner did not take appropriate care and protection towards the education of her children. After obtaining report from the coordinator of Child Line, the Child Welfare Committee directed that the petitioner should get his children admitted at Bankura in well known English medium school in presence of opposite party. Challenging the said order the present petitioner preferred miscellaneous appeal no. 2 of 2017 before the learned Additional District and Sessions Judge at Bankura. Learned Judge allowed the miscellaneous appeal in part and modified the aforesaid order and directed that the custody of the children be handed over to the opposite party from the petitioner as interim measure and also directed that the children be admitted in a boarding school. Learned Advocate appearing on behalf of the petitioner contended that learned Judge has exceeded his jurisdiction by directing change of custody of the children and in fact the child welfare committee had no cause of action to entertain the application of the opposite party since the petitioner was looking after the care and protection of his children and that there was absolutely no negligence on the part of the petitioner in respect of the care and protection of his children. Learned Advocate for the opposite party contended that the petitioner has had no definite source of income and that the education of the children for the opposite party was being seriously affected since they were not attending the school and as such the child welfare committee had jurisdiction to pass such order so that the petitioner should take appropriate steps towards the education of their children. Learned Advocate for the opposite party however admitted that the Act VIII case is still pending in the Court of learned District Judge, Bankura. Learned Advocate Mr. Ayan Basu appearing on behalf of the State contended that in fact there was no cause of action before the Child Welfare Committee in respect of the application filed by the opposite party and the order passed by the Child Welfare Committee has been rightly set aside by the learned Judge but while doing so learned Judge has decided the custody of the children, which is beyond the scope of the miscellaneous appeal decided by learned Judge.
2. The allegation against the petitioner before the child welfare committee is that the children of the petitioner are not attending school and their all round development is being hampered. It is apparent from the report of the coordinator of concerned child line centre that the children are residing happily with the present petitioner and they have had no complain against their care and protection in the custody of the petitioner. Both the children have attained the age of 10 and 7 years respectively and thereby they have developed sufficient alertness with regard to their own care and protection. Therefore, the child welfare committee being satisfied about such report, directed that the petitioner should take appropriate steps towards the development and education of the children. In fact the child welfare committee did not interfere with the custody of the children after having such report from the coordinator of child line centre. In my considered view the observation of the child welfare committee on that score is perfect and justified. Learned Judge while deciding the miscellaneous appeal has mis directed himself by entering into the forum of custody. Learned Judge has discussed in detail about the income of the parties in the miscellaneous appeal and the scope of further development of the children in the custody of the opposite party. In my considered view learned Judge has exceeded his jurisdiction by deciding the custody of the children and the jurisdiction to that effect exclusively rests on learned District Judge, who would decide such custody in Act-VIII case. In other words, the custody can only be decided by the Judge at the time of disposing the Act-VIII case. Secondly, the reports clearly reveal that the children are residing happily with the petitioner. On that score, also there was absolutely no reason to change the custody of the children. In that view of this case I find sufficient reason to set aside the order passed by learned Judge in miscellaneous appeal no. 2 of 2017 dated 18th September, 2017 passed by learned Additional District and Sessions Judge, 2nd Court, Bankura I have every doubt about the competency of the CWC to entertain such prayer of opposite party. In the name of 'development' the CWC cannot entertain any or every application filed by the aggrieved party. There is absolutely no averment in the application of opposite party before CWC so as to invoke it's jurisdiction in terms of Section 2(14) of J.J. Act. The order passed by CWC dated 26.05.2017 being contrary to the provision of J.J. Act is also set aside. Parties are at liberty to agitate their grievances before the Court dealing with Act-VIII case . However if in the meantime the children have been admitted to any English medium school in terms of the order passed by learned Judge, the said arrangement shall not be disturbed for the sake of education of the children. With this observation the CRR 3567 of 2017 stands allowed.
3. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.