IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.44725 OF 2018 (GM-RES) BETWEEN:
MR. PRASAD BALAN S/O V. S. BALAN, AGED 35 YEARS RESIDING AT NO.428, THE BLUE LOTUS PARK, NEAR INDANE GAS GODOWN, AKSHAYA NAGAR, T.C.PLAYAN MAIN ROAD, RAMAMURTHY NAGAR, BENGALURU-560036. KARNATAKA ADDRESS INCORRECTRLY STATED AS VARANASI @ JINKE THIMMANAHALLI, BIDARAHALLI HOBLI, BENGALURU-560015.
(BY SMT. APARNA RAMESH, ADV. FOR SRI. ANAND MUTHALLI, ADV.) AND ... PETITIONER 1. KARNATAKA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS 4TH FLOOR, KRISHI BHAVAN, NEAR HUDSON CIRCLE, NRUPATHUNGA ROAD, AMBEDKAR VEEDHI, SAMPANGI RAMA NAGAR, BENGALURU, KARNATAKA 560002.
BEING REPRESENTED BY ITS CHAIRPERSON.
2. HARIDASAN C M AGED 63 YEARS S/O. MADHAVAN C, NO.52, 4TH A CROSS, ABBIGERE MAIN JALAHALLI WEST, BENGALURU-560015.
3. ANITHA M K W/O.HARIDASAN C M, AGED 55 YEARS, NO.52, 4TH A CROSS, ABBIGERE MAIN, JALAHALLI WEST, BEGNALURU-560015.
(BY SMT. B. V. VIDYULATHA, ADV. FOR R1 SMT. BEENA P. K., ADV. FOR R2 AND R3) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 05.09.2018 PASSED BY THE RESPONDENT NO.1 I.E., KARNATAKA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS UPON THE COMPLAINT OF THE RESPONDENT NO.2 VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Smt. Aparna Ramesh, learned counsel for the petitioner.
Smt. B. V. Vidyulatha, learned counsel for the respondent No.1; Smt. Beena P. K., learned counsel for the respondent Nos.2 and 3.
2. Petition is admitted for hearing. With consent of the parties, same is heard finally.
3. In this petition, the petitioner inter alia has assailed the validity of the order dated 05.09.2018 passed by the Karnataka State Commission for Protection of Child Rights (hereinafter referred to as ‘the Commission’ for brevity), on the basis of the complaint made by respondent No.2.
4. Facts giving rise to filing of the writ petition briefly stated are that the petitioner is the father of the minor child namely Master Haren, who is aged about 6 years. It is averred in the writ petition that the petitioner lost his first wife and mother of his child in the year 2014 and he got married again in 2017. It appears that respondent Nos.2 and 3 who are the in- laws of the petitioner made a complaint before the Commission seeking custody of the child from the petitioner on the ground that the child’s health condition is not good and the petitioner is not taking care of his son. On the basis of the aforesaid complaint, the Commission, after hearing the parties, by an order dated 05.09.2018 directed the petitioner to handover the custody of his son to respondent Nos.2 and 3 during weekends. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that the impugned order is per se without jurisdiction as the Commission has no authority in law to pass the impugned order.
6. On the other hand, the learned counsel for the respondents have supported the order passed by the Commission.
7. I have considered the submissions made by the learned counsel for the parties.
8. The Commission is a body which has been constituted under the provisions of the Karnataka State Commission for Protection of Child Rights Act, 2005 (hereinafter referred to as ‘the Act’ for brevity). The said Act has been enacted with an object to provide for constitution of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. Section 13 of the Act deals with functions of the Commission, whereas Section 14 of the Act deals with power relating to inquiries. Section 15 of the Act provides for steps which may be taken after inquiry, which reads as under:
15. Steps after inquiry. - The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely – (i) where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(ii) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
(iii) recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.
9. Thus, from a conjoint reading of Sections 13, 14 and 15 of the Act, it is evident that in case after an inquiry the Commission comes to a conclusion that there has been a case of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons. The Commission may also approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary and the Commission may recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.
10. On careful scrutiny of the provisions of the Act, it is evident that the aforesaid Act does not empower the Commission to grant an order of custody of the child on the basis of a complaint made by the complainant. The impugned order, therefore, is per se without jurisdiction and hence the same cannot be sustained in the eye of law. It is accordingly quashed. Needless to state that the parties are at liberty to take recourse to such remedy as may be available to them under the law.
With the aforesaid liberty, the petition stands disposed of.
Sd/- JUDGE RD