Breaking: Writ Of Habeas Corpus Not Maintainable Against Judicial Order Of Magistrate /CWC Sending Minor Victim To Children Protection Homes:Allahabad High Court (FB)

A Full Bench of Allahabad High Court on Monday held that an order passed by a Judicial Magistrate or Child Welfare Committee sending victim to women protection homes/child care homes cannot be challenged or set aside in a writ of habeas corpus. Subsequently, the Bench also observed that the detention of a corpus in such child care homes cannot be treated as an illegal detention.

Full Bench comprising of Justice Siddhartha Varma, Justice Mahesh Chandra Tripathi and Justice Sanjay Yadav was dealing with the reference in a habeas corpus petition seeking directions on Superintendent of Children Home (Girl) to release the minor girl namely Anchal, aged 17 years, who was allegedly illegally detained in the Children Home.

The following three issues were framed to be decided by a larger bench:

1. Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?

2. Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?

3. Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?

About the Reference

An FIR was lodged by Anchal's mother alleging that her minor daughter left the house on 15th February 2020 with the help of one Arjun and his family. When Anchal was recovered on 4th March 2020, her statement under sec. 161 CrPC was recorded wherein she alleged that she left the house out of frustration as she was beaten up by her mother and had then gone to the house of her friend, Arjun. It was also alleged that she did so out of her own free will. These statements were reiterated by her in the statement under sec. 164 CrPC.

When she was produced before the CJM, Saharanpur on 13th March 2020, the police submitted that as per her High School Certificate, her age was 17 years and 20 days and therefore suitable order must be passed in regards to her custody. Subsequently, she was sent to Child development home by the learned CJM.

On being produced before the Child Welfare Committee on the directions of CJM, order was passed for keeping her in the Children Home (Girl). The present habeas corpus petition was filed on being aggrieved by the said order.

According to the petitioner, it was contended that once her custody was denied by her parents, she cannot be forced to be sent to Children Home against her wishes. However, the learned AGA opposed the petition by submitting that the petition was not maintainable as the impugned order was passed pursuant to the order of the Magistrate and the judicial order, right or wrong cannot be questioned/assailed in petition seeking writ of habeas corpus.

The Division Bench therefore observed that if the detention in custody is as per judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction, the writ of habeas corpus would not be maintainable. However after observing that the position was contradicting as held in various judgments, the Division Bench referred the issues to be dealt by a larger bench.

Observation of the Full Bench

On the issue of elopement of minor girls and child marriages

The bench after hearing both the parties considered it necessary to make certain observations on ancillary issues, apart from the main issues framed, dealing with cases of elopement of minor girls and their recovery after which they are sent to Children Homes.

Observing that there was a rise in number of habeas corpus petitions being filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in "Run away Marriages", the Bench opined that such parents go through agony whereas the couples are on the run with husband being accused of kidnapping and/or rape.

Therefore, according to Bench, in such cases the Courts are required to ensure that the person whose production is sought is not illegally detained.

On perusal of Hindu Marriage Act and Child Marriage Restraint Act, 1929, the Bench observed that:

"There appears to be a rationale and public policy in the Legislature not making marriages solemnized in breach of the statutory age, as prescribed under the Hindu Marriage Act and the Child Marriage Restraint 18 Act, void or voidable. The Legislature was conscious of the fact that if such marriages performed in contravention of the age restriction, are made void or voidable it could lead to serious consequences and exploitation of the women, who are vulnerable on account of their social and economic circumstances. Both the Acts are aimed to discourage performance of such marriages by making them punishable with imprisonment and fine, while recognizing the necessity of protecting marriages performed even though in contravention of the prescribed age as valid and subsisting."

On maintainability of writ of habeas corpus against judicial order passed by Magistrate or Child Welfare Committee

While analyzing various provisions of the Juvenile Justice Act, the Court observed that the Act is a pro child legislation providing for all remedial measures of rehabilitation and care to a child in need of care and protection. However, the Court clarified that in cases where the corpus is sent to children homes arbitrarily, then the situation may be looked into in appeal or revision.

The Court observed that sec. 37 of the Act clearly provides that the Committee on 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 the 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 following orders. Therefore, according to the Bench, the framers were conscious to take due care of child's wishes where the child is sufficiently mature to take a view.

"Therefore, in such situation it cannot be presumed that in case the corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, keeping in mind the provisions of the J.J. Act, the detention of the corpus cannot be said to be illegal and in case the petitioner is aggrieved by the order of the Child Welfare Committee, or the Magistrate, the petitioner is at liberty to take recourse of remedy of an appeal or revision provided under Sections 101 and 102 of the J.J. Act." The Court held.

Concluding that the writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the Act, the Court also observed that in the present case the age of the corpus was 17 years according to the High School Certificate and therefore once it is found that the corpus is a child within the meaning of sec. 2(12) of the Act, she would fall within the category of child in need of care and protection.

"Once the order passed by the Committee placing the petitioner corpus in protection home would be within its power conferred by Section 37 of the J.J. Act then it cannot be presumed that the said order is without jurisdiction, illegal or perverse, keeping in mind the provisions of the J.J. Act and the detention of the corpus cannot be said to be illegal." The Court observed at the outset.

The Court also went ahead to observe that once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. "Her interest is paramount and before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in mind. The wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act." The bench held.

Concluding the observations, the Bench thus observed:

"Thus, it is evident that a writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus."

The Bench therefore answered the three issues in the following manner:

Answer 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Answer 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention.

Answer 3: 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 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).

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