Filing Petition For Custody Of Child Before Child Welfare Committee Unwarranted When Petition For Identical Relief Is Already Filed Before Family Court: Kerala HC
The Kerala High Court observed that when a petition for child custody was filed before the Family Court, father’s subsequent endeavor to approach the Child Welfare Committee for identical relief was unwarranted.
The High Court also ruled that shuttling the child between the two Forums will cause inconvenience to the child.
The Single-Judge Bench of Justice C.S. Dias explained, “The Family Court has concurrent jurisdiction with the 1st respondent in matters concerning the welfare of children. Since the 3rd respondent has elected the Family Court, his subsequent endeavour to approach the 1st respondent for identical reliefs seems to be with an intention to harass the petitioner.”
Advocate Akhil Vijay represented the Petitioner while Government Pleader Sunilkumar Kuriakose represented the Respondent.
The petitioner is the estranged wife of the third respondent. They have a son born in their wedlock. The petitioner filed a Petition before the Family Court to dissolve her marriage with the respondent-husband. The husband filed a Petition before the same Court for the custody of his child. During the pendency of the above proceedings, the husband also filed a petition before the Child Welfare Committee (first respondent). The Committee had directed the Station House Officer to produce the child and the petitioner before them. The petitioner-wife was not even permitted to raise a preliminary objection regarding the maintainability of the petition. It was alleged that the husband’s sole intention was to harass and vex the petitioner and the child. The Writ Petition was filed assailing the Committee’s Order.
The Bench noted that the marital relationship between the petitioner and the third respondent is strained. There are matrimonial litigations between the parties, including a petition for the custody of their child, pending before the Family Court. During the pendency of the proceedings before the Family Court, the husband parallelly filed the Petition before the Committee for an identical relief.
On a perusal of the averments in the Petition, the Bench observed that the respondent-husband did not have a case that his child is a child in need of care and protection so as to attract the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 especially in light of the fact that the respondent in the petition is the biological mother of the child.
“Furthermore, the filing of a second petition for an identical relief is unwarranted because the Family Court is the Court of competent jurisdiction to decide on the interim and permanent custody of the child. Unmindful of the above legal question, the 1st respondent has ordered the 2nd respondent to produce the child before them, when the matter is sub-judice before the Family Court”, the Bench said.
Thus, the Bench observed that the petitioner ought to be granted an opportunity to raise a preliminary objection before the first respondent regarding the entertainability of the petition. “I also hold that Ext.P2 order passed by the 1st respondent is unjustifiable. Shuttling the child between the two Forums will cause inconvenience to the child and is detrimental to its paramount welfare”, it said.
Allowing the Writ Petition, the Bench set aside the Committee’s Order and permitted the petitioner to appear before the Chairperson, Child Welfare Committee either in person or through Counsel and file her preliminary objection regarding the entertainability of the Petition.
Cause Title: X v. Chairperson, Child Welfare Committee, Kottayam (Neutral Citation: 2024:KER:94086)
Appearance:
Petitioner: Advocate Akhil Vijay
Respondent: Government Pleader Sunilkumar Kuriakose, Standing Counsel M.U. Vijayalakshmi
