"Can't Detain Minor In Protection Homes Against Her Wishes": Allahabad High Court Grants Minor Victim's Custody To Mother

The Allahabad High Court has observed that even a minor has a right to keep her person and even the parents cannot compel the detention of a minor against her will unless there is some other reason for it.

The bench of Justice Sanjay Kumar Singh observed thus while granting the custody of minor victim (in connection with a case under Sections 363 and 366 IPC) to her mother after ascertaining the minor's wishes.

The case in brief

Essentially, the mother of 'X' (victim) lodged the FIR under Sections 363 and 366 IPC in respect of her missing daughter. During the investigation, the victim was recovered from a Railway Station in Kasganj and she was produced before the Child Welfare Committee, Kasganj.

Her statement was recorded, in which she expressed her desire to go with her mother and also refused for her medical examination, but the Child Welfare Committee, Kasganj, instead of giving the custody of the victim 'X' to her mother, sent her to Rajkiya Bal Grih (Balika).

Therefore, the Mother moved the instant revision plea challenging the order passed by the Child Welfare Committee, Kasganj. Further, she also sought the custody of the minor girl.

Before the High Court too, the victim expressed her desire to go with her mother and the mother was also willing to keep the victim with her. In view of this, the only question for consideration before the Court was thus: whether a victim can be kept in a protective home against her wishes. 

To answer the question, the Court took into account the catena of judgments of the Allahabad High Court to conclude that the question of the minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home.

Further, the Court also referred to the Larger Bench ruling of the HC in the case of Km. Rachna and another Vs. State of U.P., AIR 2021 All 109 (FB), WHEREIN, after considering a plethora of judgments of the High Court as well as other High Court, had answered the question in the following words:

"Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/ Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on 6 being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h)."

In view of this, taking into account the statements made by the victim and her mother, the Court directed to hand over the custody of the victim to her mother. Accordingly, the impugned order passed by the Child Welfare Committee, Kasganj was set aside and the revision was allowed.

However, the Court directed that whenever the personal appearance of the victim would be required before the court concerned, she shall be produced by the mother in court.

Case title - X(Minor) And Another v. State Of U.P. And 2 Others [CRIMINAL REVISION No. - 1714 of 2022]

Case Citation: 2022 LiveLaw (AB) 343

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