[Cites 10, Cited by 0]
Jammu & Kashmir High Court - Srinagar Bench
At Srinagar vs Ms. Xxx (Minor) on 19 December, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
2025:JKLHC-SGR:364
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Crl R No.17/2024
Reserved on: 09.12.2025
Pronounced on:19.12.2025
Uploaded on: 19.12.2025
Whether the operative part
or full judgment is
pronounced: Full
OASIS GIRLS SCHOOL, GOGJI BAGH
...PETITIONERS/APPELLANT(S)
Through: - Mr. Aatir Javed Kawoosa, Advocate, with
Mr. Areeb Javed Kawoosa, Advocate.
Vs.
MS. XXX (MINOR) ...RESPONDENT(S)
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Through the medium of present petition, the petitioner
has challenged order dated 02.05.2024, passed by the Child
Welfare Committee, Srinagar, whereby, inter alia,
recommendation has been made to the Director, School
Education, Kashmir, and District Magistrate, Srinagar, to
take appropriate legal action in accordance with the relevant
rules against the petitioner school for unlawfully expelling the
child (respondent herein).
2) It appears that father of the respondent Child had made
a complaint dated 10.11.2023 which was received by the
Child Welfare Committee, Srinagar (for short "the
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Committee") through District Social Welfare Officer, Srinagar,
Additional Deputy Commissioner, Srinagar, and National
Commission for Protection of Child Rights (for short
"NCPCR"). The complaint was lodged by father of the
respondent against the petitioner school and one more
school, namely, Foundation World School, Humhama. In the
complaint, it was alleged that the respondent, who is a six-
year old child, has been expelled from the aforesaid two
schools including the petitioner school as the father of the
respondent had reported certain irregularities/illegalities
committed by the two schools relating to fake annual charges
etc. The complainant had sought relief relating to admission
of the respondent child in Presentation Convent Girls School,
Rajbagh or Mallinson Girls School, Sheikh Bagh or any other
school at par with the aforementioned two schools in the
vicinity of three kilometres radius of the residence of the
respondent child.
3) It appears that NCPCR took cognizance of the matter
and it directed the Committee to enquire and take action in
the matter. The terms of reference are reproduced as under:
i. Expulsion matter of the child from Oasis Girls
School, Srinagar.
ii. Child's right to education as per her eligibility under
Section 12(1) of Right to Education Act, 2009.
4) Upon receiving the reference, the Committee registered
the case and issued summons to the Principals of both the
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schools. In response to the summons, both the schools
including the petitioner herein filed their reply before the
Committee. A report was called by the Committee from the
Social Worker Distract Child Protection Unit, Srinagar. The
complainant despite directions of the Committee did not put
in his personal appearance nor did he file any documents.
However, later on the complainant is stated to have filed some
documents. After holding the enquiry, the Committee, on the
basis of the material on record, came to the conclusion that
the respondent child has been expelled from the petitioner
school illegally. It has been further concluded by the
Committee that the child has been put to discrimination on
account of her parents activities which makes the child
disadvantaged sui generis.
5) On the basis of the aforesaid findings, the Committee
recommended the Chief Education Officer, Srinagar, to
enrol/admit the respondent child in a girls only
neighbourhood school where she can continue her education
without further delay. A further recommendation has been
made to the Director School Education, Kashmir, and District
Magistrate, Srinagar, to take appropriate legal action against
both the schools including the petitioner school for unlawfully
expelling the respondent child and denying education to her
for last one and a half years.
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6) The petitioner has challenged the impugned order dated
02.05.2024 passed by the Committee, primarily, on the
ground that the Committee did not have jurisdiction to pass
such an order particularly because the respondent does not
qualify either to be a child in conflict with law or a child in
need of care and protection. It has been contended that a
Child Welfare Committee does not have jurisdiction to
recommend action against the petitioner school as the same
is unknown to law and is beyond its competence. It has also
been contended that father of the respondent child is bearing
a grudge against the petitioner school and has been making
complaints against it before all possible authorities with a
view to wreak vengeance upon it.
7) Despite service nobody appeared on behalf of the
respondent, as such, the case has been taken up for
consideration in exparte.
8) I have heard learned counsel for the petitioner and
perused record of the case.
9) The first and foremost contention of the petitioner for
impugning the order passed by the Committee is that the said
Committee does not have jurisdiction to entertain and
adjudicate upon the complaint filed by the father of the
respondent because the respondent does not fit in the
definition of either "child in conflict with law" or "the child in
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need of care and protection". In order to test the merits of the
aforesaid contention, it has to be seen as to for what purpose
Child Welfare Committees have been constituted in terms of
Chapter V of the Juvenile Justice (Care and Protection of
Childre) Act, 2015 (for short "the JJ Act"). Sub-section (1) of
Section 27 of the JJ Act provides that the State Government
shall by notification in the Official Gazette constitute for every
district, one or more Child Welfare Committees for exercising
the powers and to discharge the duties conferred on such
Committees in relation to "children in need of care and
protection" under the JJ Act and ensure that induction
training and sensitisation of all members of the committee is
provided.
10) Section 29 of the JJ Act lays down the powers of the
Committee. It reads as under:
29. Powers of Committee.
(1) The Committee shall have the authority to dispose of cases
for the care, protection, treatment, development and
rehabilitation of children in need of care and protection, as well
as to provide for their basic needs and protection.
(2) Where a Committee has been constituted for any area, such
Committee shall, notwithstanding anything contained in any
other law for the time being in force, but save as otherwise
expressly provided in this Act, have the power to deal exclusively
with all proceedings under this Act relating to children in need of
care and protection.
11) Section 30 of the JJ Act deals with the functions and
responsibilities of the Committee. It reads as under:
30. Functions and responsibilities of Committee
The functions and responsibilities of the Committee shall
include---
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(i) taking cognizance of and receiving the children produced
before it;
(ii) conducting inquiry on all issues relating to and affecting
the safety and well-being of the children under this Act;
(iii) directing the Child Welfare Officers or probation officers
or District Child Protection Unit or non-governmental
organisations to conduct social investigation and submit a
report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of
children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or
restoration of children in need of care and protection, based
on the child's individual care plan and passing necessary
directions to parents or guardians or fit persons or
children's homes or fit facility in this regard;
(vii) selecting registered institution for placement of each
child requiring institutional support, based on the child's
age, gender, disability and needs and keeping in mind the
available capacity of the institution;
(viii) conducting at least two inspection visits per month of
residential facilities for children in need of care and
protection and recommending action for improvement in
quality of services to the District Child Protection Unit and
the State Government;
(ix) certifying the execution of the surrender deed by the
parents and ensuring that they are given time to reconsider
their decision as well as making all efforts to keep the family
together;
(x) ensuring that all efforts are made for restoration of
abandoned or lost children to their families following due
process, as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered
child as legally free for adoption after due inquiry;
(xii) taking suo motu cognizance of cases and reaching out
to children in need of care and protection, who are not
produced before the Committee, provided that such
decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused
children who are reported as children in need of care and
protection to the Committee by Special Juvenile Police Unit
or local police, as the case may be, under the Protection of
Children from Sexual Offences Act, 2012 (32 of 2012);
(xiv) dealing with cases referred by the Board under sub-
section (2) of section 17;
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(xv) co-ordinate with the police, labour department and
other agencies involved in the care and protection of
children with support of the District Child Protection Unit or
the State Government;
(xvi) in case of a complaint of abuse of a child in any child
care institution, the Committee shall conduct an inquiry and
give directions to the police or the District Child Protection
Unit or labour department or childline services, as the case
may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be
prescribed.
12) From a conjoint reading of Sections 27(1), 29 and 30 of
the JJ Act, it becomes clear that Child Welfare Committees
are vested with powers and have to discharge the duties in
relation to "children in need of care and protection" under the
JJ Act.
13) A child in need of care and protection has been defined
in Section 2(14) of the JJ Act, which reads as under:
2. Definitions:
In this Act, unless the context otherwise requires,---
xxx xxx xxx
xxx xxx xxx
(14) "child in need of care and protection" means a
child--
(i) who is found without any home or settled place
of abode and without any ostensible means of
subsistence; or
(ii) who is found working in contravention of the
provisions of this Act or] labour laws for the
time being in force or is found begging, or living
on the street; or
(iii) who resides with a person (whether a guardian
of the child or not) and such person---
(a) has injured, exploited, abused or
neglected the child or has violated any
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other law for the time being in force
meant for the protection of child; or
(b) has threatened to kill, injure, exploit or
abuse the child and there is a reasonable
likelihood of the threat being carried out;
or
(c) has killed, abused, neglected or exploited
some other child or children and there is
a reasonable likelihood of the child in
question being killed, abused, exploited
or neglected by that person; or
(iv) who is mentally ill or mentally or physically
challenged or suffering from terminal or
incurable disease, having no one to support or
look after or having parents or guardians unfit
to take care, if found so by the Board or the
Committee; or
(v) who has a parent or guardian and such parent
or guardian is found to be unfit or
incapacitated, by the Committee or the Board,
to care for and protect the safety and well-
being of the child; or
(vi) who does not have parents and no one is willing
to take care of and protect or who is
abandoned or surrendered;
(vii) who is missing or run away child, or whose
parents cannot be found after making
reasonable inquiry in such manner as may be
prescribed; or
(viii) who has been or is being or is likely to be
abused, tortured or exploited for the purpose of
sexual abuse or illegal acts; or
(ix) who is found vulnerable and 4[has been or is
being or is likely to be] inducted into drug abuse
or trafficking; or
(x) who is being or is likely to be abused for
unconscionable gains; or
(xi) who is victim of or affected by any armed
conflict, civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before
attaining the age of marriage and whose
parents, family members, guardian and any
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other persons are likely to be responsible for
solemnisation of such marriage;
14) The High Court of Punjab and Haryana has, in the case
of Mast XXXX v. State of Punjab and others (neutral
citation No.2024:PHHC:013534) after noticing the afore-
quoted provisions of JJ Act, interpreted the same in the
following manner:
"10. As the various clauses of Section 2(14) of
the J.J. Act would reveal that a 'child in need
of care and protection' is mainly divided into
two categories. The first category comprises
the child, who is not having any guardian or
parents or any home or settled place of
abode. In the second category falls that child,
who though has a parent or a guardian, but
either such a parent or guardian is incapable
to take care of the child or incapacitated or
such parent or guardian himself is subjecting
the child to one or the other kind of atrocity. "
15) In the present case, the complaint, on the basis of which
enquiry has been conducted by the Committee, has been
made by father of the respondent Child who as per the
complaint was studying in the petitioner school. Thus, the
respondent child does not fall in the definition of 'child in need
of care and protection' as contained in Section 2(14) of JJ Act.
The respondent child is neither a homeless person nor she
was found working in contravention of Labour laws. The
father or guardian of the respondent child has not inflicted
any injury upon her nor has he exploited or abused her and
she is not mentally ill. It is not the case of the complainant
that he is unfit or incapacitated to take care of the respondent
2025:JKLHC-SGR:364
child nor is it a case where the respondent child does not have
parents willing to take care of her. The respondent child does
not fit in any of the clauses (i) to (xii) of sub-section (14) of
Section 2 of the JJ Act. Thus, the respondent child cannot be
stated to be a child in need of care and protection nor she is
a child in conflict with law.
16) The Committee has, while entertaining the complaint
and conducting enquiry into the same, relied upon the
judgment of the Supreme Court in the case of Exploitation
of Children in Orphanage in the State of Tamil Nadu v.
Union of India & Ors, (2017) 7 SCC 578. In the said case,
the Supreme Court has held that the definition of expression
'child in need of care and protection' under Section 2(14) of
the JJ Act should not be interpreted as an exhaustive
definition. It has been further held that the definition is
illustrative and the benefits envisaged for children in need of
care and protection should be extended to all such children
in fact requiring Stat care and protection. On the basis of this
statement of law laid down by the Supreme Court, the
Committee has arrogated to itself jurisdiction to conduct the
enquiry and make recommendations in the present case.
17) I am afraid the reasoning adopted by the Committee in
taking cognizance of the complaint and conducting enquiry
into the case relating to the respondent child by bringing her
2025:JKLHC-SGR:364
within the purview of the definition of 'child in need of care
and protection' is wholly misconceived. It is true that the
definition of expression 'child in need of care and protection'
as given in Section 2(14) of the JJ Act is not exhaustive, yet it
is a settled principle of interpretation that if a particular
situation is to be brought within the purview of an illustrative
definition, the same should be interpreted ejusdem generis,
meaning thereby it should be limited to the same class or
nature as the specific illustrations. A bare perusal of clauses
(i) to (xii) of sub-section (14) of Section 2 of the JJ Act would
reveal that a child in need of care and protection would mean
a child who, for one reason or other, is neglected, exploited or
is vulnerable. A child like the respondent, who has father to
look after and, in fact, her father has projected her cause not
only before the Committee but before several other fora, which
goes on to show that the respondent child is neither neglected
nor exploited as she is being well taken care of by her father.
The respondent child, by no stretch of reasoning, can be
termed to be a child in need of care and protection.
18) The judgment relied upon by the Committee to bring in
the present case within its jurisdiction cannot be made
applicable to the facts of the present case. In the said case,
the Supreme Court was dealing with the issue of sexual
abuse of children, especially in Government institutions, and
2025:JKLHC-SGR:364
it was in that context that the Supreme Court held that a child
victim of sexual abuse or sexual assault of sexual harassment
is a child in need of care and protection. The ratio laid down
by the Supreme Court in the aforesaid case cannot be
stretched to tyrannical limits by including even those children
in the definition of 'child in need of care and protection' who
are being well taken care of by their parents.
19) It is only in cases where a child is not having any
guardian or parent to look after him or her or where he or she
has not a settled place or home that such child can fall within
the definition of 'child in need of care and protection'.
Similarly, a child who though has a parent or guardian but
the said parent or guardian is incapacitated or incapable of
taking care of the child or such parent or guardian is himself
subjecting the child to any atrocity, then the child will fall
within the purview of the definition 'child in need of care and
protection'. None of these situations is present in the instant
case. Therefore, the Committee did not have jurisdiction to
entertain the complaint and arrogate to itself the power to
enquire into the said complaint and make recommendations
to different authorities.
20) Apart from the above, in terms of Section 29 of the JJ
Act, a Child Welfare Committee does not have jurisdiction to
make recommendations for taking action against any
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institution. It has only the authority to dispose of the cases
for care, protection, treatment, development, rehabilitation of
children in need of care and protection as well as to provide
for their basic needs and protection. Thus, the
recommendation made by the Committee by virtue of the
impugned order is beyond its competence.
21) For the foregoing reasons, this Court is of the considered
opinion that the Committee has arrogated to itself jurisdiction
which is not vested within it under law and has thereby
exceeded its jurisdiction in passing the impugned order. The
same is, therefore, not sustainable in law.
22) Accordingly, the petition is allowed and the impugned
order passed by the Child Welfare Committee, Srinagar, is set
aside.
(Sanjay Dhar)
Judge
SRINAGAR
19.12.2025
"Bhat Altaf-Secy"
Whether the Judgement is speaking: YES
Whether the Judgement is reportable: YES/NO
