Even Minor Girl Can't Be Detained In Protective Homes Against Her Will Or At The Will Of Father: Allahabad High Court

The Allahabad High Court has observed that even a minor girl cannot be detained against her will or at the will of her father in a Protective Home.

Holding thus, the Bench of Justice Suresh Kumar Gupta directed the Additional Session Judge/Special Judge (POCSO Act), Sultanpur, who sent a girl/alleged victim to a protective home, to call her from the Nari Niketan, ascertain her wishes and pass an appropriate order for her custody in accordance with law keeping the wishes of victim.

Essentially, the father of the alleged victim/girl in question lodged an FIR u/s 363, 366, 376 I.P.C. and 5/6 of the POCSO Act against the applicant/Abhay Pratap Mishra with the allegation that he kidnapped his minor daughter.

After the recovery of the girl/alleged victim, her statement was recorded under Section 161 Cr.P.C. in which she stated that she voluntarily entered into a relationship with the applicant and both of them have solemnized marriage.

Further, in her statement recorded under Section 164 Cr.P.C. (before the Magistrate), she supported the statement recorded by her under Section 161 Cr.P.C. Thereafter, an application was filed by the applicant to release the girl in his favour, however, the trial court ordered that the victim be sent to Nari Niketan, Ayodhya.

Being aggrieved with the order of the Trial Court, the applicant filed the instant petition that the trial court had passed the order without any basis and further submitted that as per the medical report the age of the victim is 18 years.

In support of his submission, the counsel for the applicant relied upon the judgment of the High Court in the case of Smt. Parvati Devi Vs. State of U.P. 1992 All Cri Cases 32, wherein it had been held that confinement of victim in Nari Niketan against her wishes cannot be authorized either under Section 97 or under Section 171 Cr.P.C.

Identically, the Court noted, in the case of Mrs. Kalyani Chaudhory Vs State of U.P. and others 1978 Criminal Law Journal 103, a Division Bench of the Allahabad High Court had held that no person can be kept in the protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or under some other law permitting her detention in such a Home.

"In such cases, 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," the Court further stressed.

Consequently, the Court directed the trial court to call the victim from the protection home and ascertain her wishes and then pass an appropriate order regarding her custody in accordance with the law, keeping into account the wishes of victim.

Case title - Abhay Pratap Mishra @ Ujjwal Mishra v. State Of U.P Thru. A.C.S./Prin. Secy. Home and Another

Case Citation: 2022 LiveLaw (All) 171

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