Munira Siddiqi & Anr.(Through Her ... vs Mustafa Aleem Siddiqi & Ors.
2009 Latest Caselaw 2132 Del

                    HIGH COURT OF DELHI : NEW DELHI

                  Judgment reserved on: May 05, 2009
                 Judgment delivered on: May 19, 2009

+                                Crl. Rev. P. No. 690-91/2006

%          Munira Siddiqi & Anr.
           (Through her next friend and
           Grandmother,
           Rashida Siddiqi) & Anr.       ...       Petitioners
                     Through: Mr. Y.P. Narula Senior Advocate
                               with Mr.Aniruddha Choudhary,
                               Advocate for the Petitioner.

                                           versus

   Mustafa Aleem Siddiqi
   & Ors.                  ...       Respondents
             Through: Mr. Aman Lekhi, Senior Advocate
                      with Mr. H.A. Khan, Mr. J.S. Rai,
                      Mr. Rakesh Kumar, Mr.Rohit
                      Nagpal and Mr. Vaibhav Vats,
                      Advocate for Respondent.
CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

SUNIL GAUR, J.

*

1. The order under challenge in this revision petition is

of 30th September, 2006 of the Child Welfare Committee,

constituted by the State Government to provide care and

protection to the children, who are in need of it. The

jurisdiction to do so is vested in this committee by Chapter

Crl. Rev. Petition No. 690 & 691 of 2006 Page 1 III of 'The Juvenile Justice (Care & Protection of Children)

Act, 2000'.

2. Impugned order of 30th September, 2006 of the Child

Welfare Committee is an interim order, which permits the

Petitioner, who is grandmother of the child - Munira, to

retain her custody over the child, till 6th October, 2006 and

the Petitioner vide impugned order was directed to

produce the aforesaid child before the Child Welfare

Committee on 7th October, 2006. The Respondents herein,

i.e., parents of the child, were also directed to be present

before the Committee. The Committee had also issued

direction to the Counselor, to visit the Petitioner, as well

as to Respondents during this period and the Respondents

were allowed to be their daughter, i.e., the child herein on

3rd and 5th October, between 8 p.m. and 9 p.m., but that

too, in the presence of the counselor.

3. During the pendency of this petition, vide order of 6th

November, 2006 of this Court, the child, i.e., Petitioner

No.1 was permitted to travel to USA with her paternal

Aunt-Mrs. Nemat King for the purpose of continuing her

studies in seventh grade, but a direction was issued to the

Petitioners to be present before this Court on 19th

February, 2007. It is evident from the order of 19th

February, 2007 of this Court that the paternal Aunt of Crl. Rev. Petition No. 690 & 691 of 2006 Page 2 Petitioner-Child had assured this court that the Petitioner-

child would be brought India in June, 2007 and

accordingly, this matter was to be heard on 21st July, 2007

but on the adjourned date, this matter was not taken up,

as further adjournment was sought and thereafter, this

court was informed that the Petitioner-child would be

coming to India in the winter break. Before this Court, vide

order of 19th December, 2007, it was agreed upon by the

parties that the Petitioner No.1-child would henceforth

visit India twice in a year and the expenses for visit of the

petitioner-child to India would be equally borne by

paternal Aunt-Mrs. Nemat King of Petitioner-child and

Respondent- father of the Petitioner-child. It is a matter of

record that after December, 2007, the Petitioner-child, till

date, has not visited India because this matter was

adjourned from time to time for a negotiated settlement

and despite efforts made for an amicable settlement by

the Continuous Lok Adalat, nothing worthwhile has

emerged.

4. Both the sides have been heard in this petition and

the record has been perused.

5. At the outset, learned senior counsel for the

Petitioner states that this court is a 'super parent' of the

Petitioner-child and it is in the welfare of the Petitioner- Crl. Rev. Petition No. 690 & 691 of 2006 Page 3 child that she remains with her grandmother or her

paternal Aunt-Mrs. Nemat King, as she is pursuing her

studies in USA and is happily living with her paternal aunt-

Mrs. Nemat King - Respondents No. 3.

6. The case projected by the Petitioners is that the

Petitioner-child was ill treated by Respondents No. 1 and

2, i.e., her natural parents and she had left the house of

her parents on that account and now the Petitioner-child

has reached age of discretion, as she would be sixteen

years old in October, 2009. It has been pointed out that

Petitioner-Munira is not an abandoned child and therefore,

the fetters cannot be put upon her and her guardian, i.e.,

paternal grandmother and aunt, of Petitioner-child to

produce petitioner-child before the Committee from time

to time.

7. Learned senior counsel for the Petitioner points out

that child friendly procedures are to be adopted by the

Child Welfare Committee and the impugned order is in

utter violation of clause 22 of the National Charter for

Children, as it does not ensure care and protection of the

Petitioner-child as per her wishes. It is pointed out that the

interim order of 6th November, 2006, in these proceedings,

had been passed by this Court, with the consent of the

parties and therefore, the same is binding and now it Crl. Rev. Petition No. 690 & 691 of 2006 Page 4 cannot be said that the impugned order is appealable and

not revisable. In the last, it has been urged on behalf of

the Petitioners that since the Petitioner-child does not

want to live with her natural parents, she cannot be forced

to do so and the Petitioner-child should be allowed to

continue to live with her paternal aunt in USA for

completing her studies and proper care of the Petitioner-

child is being taken by her paternal aunt and therefore,

the impugned order and the proceedings initiated by the

Child Welfare Committee needs to be put to an end.

8. Apart from raising a preliminary objection, regarding

this revision being not maintainable and the impugned

order being appealable, learned senior counsel for

Respondents contends that the Petitioner-Munira is not a

child „in the need of care and protection‟ within the

meaning of section 2(d) of 'The Juvenile Justice (Care &

Protection of Children) Act, 2000'. It has been contended

on behalf of the Respondents that the aforesaid act would

apply only when the parent or guardian are 'unfit or

incapacitated' to exercise control over the child and it is

not so in the present case as the Respondents being

natural parents are very much capable of taking care of

their daughter Munira. It has been pointed out that the

counselor attached to Child Welfare Committee has

Crl. Rev. Petition No. 690 & 691 of 2006 Page 5 specifically stated in the order impugned that the

Petitioner-child should not be allowed to go to USA. It has

been also pointed out that the final authority under

this Act is the Child Welfare Committee, who has

exclusive jurisdiction over this matter and it cannot

be divested on its authority. In the last, it has been

submitted that the Child Welfare Committee while passing

the impugned order has not exceeded its jurisdiction and

there is no illegality in the impugned order and in view of

the dictum of the Apex Court in its decision (2008) 13

SCC 133, the remedy of appeal cannot be by-passed and

therefore, this petition deserves dismissal. Nothing else

has been urged by either side.

9. Before provisions of 'The Juvenile Justice (Care &

Protection of Children) Act, 2000' can be invoked in this

case, it is required to be seen whether the petitioner-

Munira would be a child within the definition of 'child'

under the aforesaid Act. Sub-Section (d) of Section 2 of the

aforesaid Act defines a child who is in the need of care and

protection and the relevant Clause of this provision is (IV),

which is as under:-

"who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child"

Crl. Rev. Petition No. 690 & 691 of 2006 Page 6

10. Whether such a parent or guardian is unfit to

exercise control over the child is an issue which would be

subject matter of the Inquiry as provided for under Section

33 of this Act and the said Inquiry has to be conducted by

the Child Welfare Committee constituted by the State

Government Under Section 29 of this Act. The powers of

this Committee, have been spelt out in Section 31 of the

aforesaid Act.

11. The question whether the petitioner- child has been

ill treated by her natural parents, i.e. respondent Nos. 1 &

2, can be answered in the Inquiry proceedings which are

required to be conducted by the Child Welfare Committee.

Simply because the Child Welfare Committee has asked

the grandmother or the Aunt of petitioner-child to appear

before it or to produce the petitioner- child, it would not

mean that unnecessary fetters are being put upon the

petitioners. For determining as to what is in the best

interest of the petitioner-child, the wishes of the child are

to be certainly kept in mind and a Counselor has been told

by the Child Welfare Committee to interact with the

grandmother of the child as well as with the natural

parents of this girl child. There is a report of the Counselor

who had advised the Child Welfare Committee to allow the

petitioner- child to temporarily remain with her

Crl. Rev. Petition No. 690 & 691 of 2006 Page 7 grandmother, but it was with a condition that the

petitioner-child should study in Delhi and should not go to

USA.

12. Normally courts do not impose their views upon the

parties in the matters like the present one. The Child

Welfare Committee is a body which has been duly

constituted by the State government for this purpose.

However, purely as an interim measure, petitioner child

was allowed to go to USA to enable her to complete her

studies for seventh Grade. The said purpose has been

achieved.

13. On the jurisdictional aspect, not much is required to

be said as there is an interim consent order of 19th

December, 2007, vide which the parties had agreed that

the petitioner- child would be brought to India twice in an

year and the expenses were to be equally borne by both

the sides. Unfortunately, the aforesaid interim order has

not been complied with. However, there is no necessity of

going into the aspect as to who is the defaulter because

this petition is being finally decided.

14. Vide order of 6th November, 2006, Mrs. Nemat King,

Aunt of the petitioner-child was impleaded as respondent

No.3 in this petition and by this order, it was made clear

Crl. Rev. Petition No. 690 & 691 of 2006 Page 8 that by virtue of the permission granted to the petitioner-

child to stay abroad with respondent No.3, the custody of

the child is not being transferred to her Aunt. An

unconditional undertaking was also given by respondent

no. 3 to bring back the petitioner-child to India in

February, 2007 and respondent No.3 had also given an

assurance that she would bring about a situation whereby

the petitioner-child develops affinity towards her natural

parents. No such efforts have been made.

15. In the peculiar facts and circumstances of this case, a

direction is issued to Ms. Nemat King, respondent No.3,

i.e. Aunt of the petitioner-child to bring back from USA, the

petitioner child i.e Munira Siddiqui (who will be completing

sixteen years of age in September, 2009) and to produce

her before the Child Welfare Committee on 7th July, 2009

at 11AM. Aforesaid order is being passed because I do not

find any illegality or infirmity in the impugned order.

16. In case the petitioner- child does not appear before

the Child Welfare Committee on 7th July, 2009, the Child

Welfare Committee would ensure the personal appearance

of the petitioner- child through the State government and

the expenses for bringing back the petitioner- child from

USA be recovered from her Aunt- Ms. Nemat King i.e.

Crl. Rev. Petition No. 690 & 691 of 2006 Page 9 respondent No.3 or eventually from the petitioner-

Rashida.

17. Upon appearance of the petitioner- child before the

Child Welfare Committee, the inquiry as envisaged under

Section 33 of the aforesaid Act, be completed preferably

within a period of three months and the restoration be

done in terms of Section 39 of this Act.

18. The records of the Child Welfare Committee be

returned back forthwith along with copy of this order for

compliance. Parties are directed to appear before the

Child Welfare Committee on 7th July, 2009.

19. Before parting with this order, it is required to be

clarified that irrespective of the outcome of the present

proceedings conducted by the Child Welfare Committee,

parties would be well within their rights to seek the legal

custody of the petitioner-child by moving the competent

court under the Guardians and Wards Act, 1890.

20. With aforesaid directions, this petition stands

disposed of.

Sunil Gaur, J.

May 19, 2009 pkb/rs

Crl. Rev. Petition No. 690 & 691 of 2006 Page 10