Sending Minor Girls To Nari Niketan In Cases Of Elopement Cannot Be Treated As Illegal Confinement: Patna HC [Read Judgment]

The three-judge bench comprising Justice Ashwani Kumar Singh, Justice Ashutosh Kumar and Justice Birendra Kumar said,

"Being merely confined within the four walls of a Protection Home cannot be termed as detention for the purpose of the writ of habeas corpus."

The writ petition was filed for issuance of habeas corpus for the release of the petitioner (minor) from the Government After Care Home, Patna. The petition also challenged the correctness of the order passed by the Division Bench of the Patna High Court in Sahebi Khatoon v. State of Bihar & Ors.

In the instant case, the father (informant) of the petitioner alleged that his daughter aged 16 years had gone for purchasing some medicine and she did not return home. On enquiry, he came to know from his co-villagers that she was seen going with one Dhanjeet Yadav of the same village, who she was having an affair with and wanted to marry.

On further enquiry the informant came to know that a fake mark sheet of matriculation and a fake Aadhaar card recording the date of birth of the petitioner as 01.01.1998 was submitted in the office of the Registrar of Marriages along with a false affidavit. He alleged that the original mark sheet of matriculation her date of birth was recorded as 02.01.2002.

Upon the recovery of the petitioner, the investigating officer filed a petition for recording her statement under Section 164 of the CrPC. and the magistrate who recorded her statement assessed her age as 16 years.

After the statement of the petitioner was recorded an application was filed by the investigating officer before the court of ACJM seeking to get her medically examined. The same was allowed and the Civil Surgeon was requested to depute a lady doctor for medical examination of the petitioner.

Accordingly, the doctor examined the petitioner and assessed her age between 16 and 17 years. Subsequently, the ACJM sent the petitioner to Short Stay Home and directed the parents to produce the original documents regarding her date of birth.

Though the original document showing her date of birth to be 02.02.2002 was filed the petitioner continued to stay at the Short Stay Home.

Taking into consideration the fact that the petitioner being a minor is not willing to go with her parents, the ACJM directed the investigating officer to take her to the After Care Home and to be kept there till the attainment of the majority.

Aggrieved by the above-said order of the ACJM the petitioner filed instant habeas corpus writ petition for her release from After Care Home.

The petitioner relied on the decision in Sahebi Khatoon case wherein the petitioner who was found to be a minor aged between 16-17 married a person of her choice, the Chief Judicial Magistrate sent her to After Care Home upon the complaint filed by the father.

The Division Bench in Sahebi Khatoon case directed the release of the petitioner from the After Care Home and also issued an advisory to be circulated to all Judicial Magistrates that in such cases women ought to be released to go with the people of their choice in exercise of its jurisdiction under Section 483 of the CrPC.

The order in Sahebi Khatoon case said,

"The girl should be treated as major if she is assessed to be of an age in between 16 to 17 years as per the medical report and also as per own assessment. In such cases, instead of sending such girls to Remand Home or after Care Home, they should be released to go with the people of their choice. This order should be circulated to all Chief Judicial Magistrate and all Judicial Magistrates in the State of Bihar for proper compliance."

In the instant case, the court looked into four issues:

• Whether, in a petition for issuance of a writ of habeas corpus, an order passed by a Magistrate could be assailed and set-aside?
• Whether an order of remand passed by a Judicial Magistrate could be reviewed in a petition seeking the writ of habeas corpus, holding such order of remand to be illegal detention?
• Whether an improper order could be termed/viewed as illegal detention?
• Whether under Section 483 Cr.P.C., a Division Bench can issue an order like in Sahebi Khatoon case directing all the Magistrates/CJMs of the State of Bihar?

The court while relying on the ratio laid down by the apex court in several decisions like Kanu Sanyal v. District Magistrate, Darjeeling & Ors., Manubhai Ratilal Patel v. State of Gujarat & Ors., Serious Fraud Investigation Office v. Rahul Modi & Anr., came to the conclusion that a writ of habeas corpus would not be maintainable if the detention in custody is as per judicial orders passed by a Judicial Magistrate/ competent court.

"Illegal order of judicial remand cannot be termed/viewed as illegal detention."

While answering the fourth issue regarding the order issued in Sahebi Khatoon case, the court said,

" In the exercise of constitutional powers granted to the Court under Articles 226 and 227 of the Constitution of India, the High Court would not be justified in issuing a general direction under Section 483 of the CrPC to all Magistrates/Chief Judicial Magistrates of the State for releasing such women and permitting them to go along with the person of their choice, who are minors and are brought before them (Magistrates) with the charge of their having married somebody on their own volition."

The court then looked into the primary and vital question arose, in the present case, as to whether in cases of elopement sending minor girls with the charge of having married somebody on her own volition to Protection Home/Nari Niketan is apposite.

Along with the above question, the court also examined whether Section 94 of the Juvenile Justice Act, 2015 would be an apt parameter for the determination of the age of the minor girl.

While relying on several decisions by the apex court in cases like State of MP v. Anoop Singh, Mahadeo v. State of Maharashtra & Anr., Jarnail Singh v. State of Haryana as well as Jaya Mala v. Home Secretary, Government of J&K & Ors., the court opined that the age of the victim has to be determined in the same manner as is being done of a person accused of a crime.

Further, the court also relied on Independent Thought v. Union of India which changed the course of the order passed in the case of Sahebi Khatoon.

In the Independent Thought case the apex court held the court cannot allow a minor to go with her husband and in such cases, the only option left to the court is sending her to Nari Niketan/Protection Home till she is major or does not consent to go to her family. The apex court also said that if the victim's age is being assessed 19, the court has no option but to release her and let her go wherever she wants.

The court in the instant case also looked into the principle of parens patriae that allows the State to step in and serve as a guardian for children, the mentally ill, the incompetent, the elderly or disabled persons who are unable to take care for themselves.

"Thus, keeping in view the role of the Court as parens patriae, it is expected from the court that whatever decision it might take as to the assessment of the age..., it needs to serve the best interests of the girl. Before reaching any conclusion, the court must consider the detrimental effects on a girl child, not only in terms of her physical or mental health but also in terms of her nutrition, education and her general well being."

While saying that in criminal law the concept of detention is attached with a sort of punishment or it can be seen to protect the society at large from any person, the court remarked,

"But sending a girl to a Protection Home/Nari Niketan can never be equated with any punishment or to protect the society at large from such girl. If it were not so, then every child in the custody of his/her parents would seek his/her liberty and file a writ of habeas corpus. We need to appreciate the fact that the role of the court in cases of a minor child is that of a guardian. Due to their tender age, a child cannot foresee his/her 'best interests'. However, being in the capacity of parens patriae, the court is duty-bound to ensure the well being of a child ensuring his/her 'best interests'."

While taking into consideration the argument regarding the miserable condition of the Protection Home, the court said,

" It is the duty of the State to maintain these institutions properly. The bad condition of Protection Homes/Nari Niketan will not dwarf/belittle the object and purpose behind establishing such institutions."

While dismissing the writ petition, the court overruled the contrary view taken by the Division Bench in Sahebi Khatoon case and held that sending minor girl to Protection Home cannot be treated as illegal confinement.

"We further hold that in cases of elopement if a minor girl is sent to Protection Home/After-Care Home/Remand Home/Nari Niketan by a judicial order passed by a court of competent jurisdiction, the same cannot be treated to be illegal confinement giving rise to a remedy under the writ of habeas corpus."

Click here to download the Judgment