Allahabad High Court
Smt. Monika vs State Of U.P. And 2 Others on 15 July, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 651 of 2019 Petitioner :- Smt. Monika Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rakesh Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
A supplementary-affidavit has been filed today, which is taken on record.
Heard learned counsel for the petitioner; Sri Deepak Misra for the State-respondents 1, 2 and 3; and perused the record.
The instant petition has been filed for production of corpus (Monika) and to set her free.
This petition has been filed by Krishna Pratap claiming himself as husband of the corpus.
A perusal of the record would reveal that a first information report was lodged at P.S. Khajuri Khas, District North East (NCT of Delhi) by maternal uncle of the corpus alleging that the corpus Monika daughter of Naveen Raghav, who is aged about 17 years, has been enticed away by accused Krishna Pratap (the petitioner herein).
It appears that the victim was produced before the Child Welfare Committee, Bulandsahar. The Child Welfare Committee, upon finding the victim to be minor and on the statement of the victim that she does not wish to go with her parents, placed her in the Women Protection Home, Meerut. The order of the Child Welfare Committee dated 10.06.2019 is on record at page 44 of the paper book.
The learned counsel for the petitioner has submitted that according to medical certificate, the victim appears to be an adult and she has been married to the petitioner and therefore she should not be placed in Protection Home rather she should be in custody of the petitioner, who happens to be her husband.
The learned A.G.A. has pointed out that in her matriculation certificate (High School Marks-sheet), which is there on record as Annexure No.1 to the petition, the date of birth of the victim is recorded as 02.10.2001. The learned A.G.A. further submitted that as per Section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015 (for short J.J. Act, 2015) preference is to be given to the date of birth recorded in a High School certificate over medical evidence and therefore the order of the Child Welfare Committee cannot be said to be illegal.
Having noticed the rival submissions, before we proceed to address the issues, it would be apposite to observe that the Apex Court had consistently been of the view that the principles applicable for determination of the age of juvenile in conflict with law are to be applied for determining the age of child victim (vide Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263; State of M.P. Vs. Anoop Singh, (2015) 7 SCC 773; and Mahadeo Vs. State of Maharashtra, (2013) 14 SCC 637).
Section 94 of the J. J. Act, 2015 provides for presumption and determination of age. Sub-section (2) of section 94 of the J. J. Act, 2015, which is relevant, is extracted below:
"(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order."
From above, it is clear that primacy is to be accorded to the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, and, in the absence thereof, to the birth certificate given by a corporation or municipality or panchayat. Only in absence of such evidence medical evidence is to be taken.
Section 37 (1) (c) of the J. J. Act, 2015 empowers the Child Welfare Committee to place a child in need of care and protection in a Children's Home or fit facility for temporary care.
Section 2 (14) of the J. J. Act, 2015 defines a child in need of care and protection. Clauses (iii), (viii) (xii) of sub-section (14) of Section 2 of the J. J. Act, 2015 are relevant for the purpose of deciding this case. The said clauses along with the opening part of sub-section (14) of section 2 of the J. J. Act, 2015 are extracted below:
"Section 2(14) "child in need of care and protection"means a child--
(i) to (ii)...................................
(iii) who resides with a person (whether a guardian of the child or not) and such person--
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
(iv) to (vii).............................................
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or
(ix) to (xi)..........................; or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;"
In Independent Thought v. Union of India, (2017) 10 SCC 800, the apex court after taking a conspectus of the provisions contained in the Constitution of India, the Indian Penal Code, the Prevention of Children from Sexual Offences Act, 2012 (Pocso Act) and the J. J. Act, 2015, held as follows:
"107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is -- this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC -- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years -- this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 IPC -- this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus."
In the instant case, the Child Welfare Committee, by order dated 10.06.2019, directed the corpus to be placed in Women Protection Home upon finding her to be minor on the basis of her date of birth recorded in her matriculation certificate.
In the writ petition, there is no averment that the corpus never studied in a school. There is rather admission in paragraph 3 of the petition that she has done her High School and in her High School Certificate her date of birth is recorded as 02.10.2001.
Under the circumstances, the medical report pertaining to the age of the corpus is not liable to be considered at this stage and in these proceedings, in as much as primacy is to be accorded to the date of birth recorded in educational certificate over medical evidence.
Once the corpus is found a child within the meaning of child as defined by Section 2 (12) of the J.J. Act, 2015 and, allegedly, a victim of a crime, she would fall in the category of child in need of care and protection in view of clauses (iii), (viii) and (xii) of sub-section (14) of section 2 of the J.J. Act, 2015. Hence, the order passed by the Child Welfare Committee placing the corpus in a protection home would be within its powers conferred by section 37 of the J.J. Act, 2015.
In view of the above, as 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, 2015, the detention of the corpus cannot be said to be illegal so as to warrant issuance of a writ of habeas corpus. If the petitioner is aggrieved by the order of the Child Welfare Committee, the petitioner is at liberty to take recourse to the remedy of an appeal provided under Section 101 of the J. J. Act, 2015.
Subject to above, the petition is disposed off.
Order Date :- 15.7.2019 Sunil Kr Tiwari