Allahabad High Court
Gayatri And Another vs State Of U.P. And 4 Others on 8 August, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 640 of 2019 Petitioner :- Gayatri And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sharad Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri Sharad Kumar Srivastava for the petitioners; the learned A.G.A. for the respondents 1 to 4; and Sri Manvendra Singh for the respondent no.5.
This habeas corpus petition has been filed by Ramu for production of the corpus (Gayatri-petitioner no.1) and to set her at liberty after setting aside the order dated 20.09.2018 passed by the Child Welfare Committee under which the corpus has been placed in a Protection Home i.e. Nari Niketan, Khuldabad, Prayagraj.
A perusal of the record would reveal that on 12.09.2018 the fifth respondent (Rampati) had lodged a first information report at P. S. Malwa, District Fatehpur against Ramu and four others complaining that his minor daughter, Gayatri, has been enticed away by the accused persons. The said first information report was registered as Case Crime No. 263 of 2018 for offences punishable under Sections 363, 366, 120-B I.P.C. and section 7/8 Pocso Act. Pursuant thereto, the corpus was placed before the Child Welfare Committee. The Child Welfare Committee upon finding that the corpus is a minor, with date of birth recorded as 02.01.2002, and that she is not willing to go with her parents, by order dated 20.09.2018, directed her to be placed in a Protection Home.
In this habeas corpus petition, the petitioners have claimed that since in the first information report, lodged by the father of the corpus, the corpus is shown aged 17 years, by now, as nearly one year has passed, the corpus would have attained the age of majority therefore cannot be detained against her wishes.
On 05.07.2019, the Court had directed for production of the corpus on 09.07.2019. On 09.07.2019, following order was passed:-
"Pursuant to our order dated 05.07.2019 the corpus- Gayatri has been produced before us. She has stated before us that she does not know her exact date of birth. She has, however, stated that she does not wish to go with her parents and she would like to go with her husband (Ramu - Appellant No.2).
From the order passed by the Child Welfare Committee which is there on record at page No. 24 it does not appear that the Child Welfare Committee took pains to determine the age of the corpus though in the order the date of birth has been mentioned as 02.01.2002 without disclosing as to on what basis the said date of birth is mentioned.
In view of the above, we deem it appropriate to require the respondents to produce the corpus before the Chief Medical Officer, Prayagraj by tomorrow, upon which, the Chief Medical Officer, Prayagraj shall get the ossification test as well as physical examination of the corpus conducted. Thereafter, with the aid of a three members Medical Board he shall determine the upper and lower age limits of the corpus on the basis of the tests so conducted.
Put up this matter on 16.07.2019 on which date the corpus shall be produced alongwith the report of the Chief Medical Officer, Prayagraj.
Till then the corpus shall be kept at Nari Niketan, Khuldabad, Prayagraj.
Let a copy of the order be supplied to the learned AGA for compliance. "
Pursuant to the above order, the Chief Medical Officer, Prayagraj on the basis of radiological examination of the corpus submitted a report that the corpus is above 18 and below 20 years.
As the Child Welfare Committee had placed reliance on a date of birth certificate showing the date of birth of the corpus as 02.01.2002, as per which the corpus is still a minor, on 16.07.2019, we passed the following order : -
"This habeas corpus petition has been filed for release of corpus Gayatri by setting aside the order dated 20th September, 2018, by which the corpus has been placed in Government Women Protection Home, Khuldabad, Prayagraj.
The case of the petitioner no.2 (Ramu) is that the petitioner no.1 (corpus) is major and that she has married Ramu and her detention in Government Women Protection Home is therefore illegal.
The order of the Child Welfare Committee suggests that the date of birth of the victim is 2nd January, 2002.
As to on what basis the date 2nd January, 2002 is mentioned in the order of the Child Welfare Committee is not disclosed in the petition.
This petition however has been filed by claiming that pursuant to first information report dated 12th September, 2018, which was lodged by father of the corpus at police station Malwa, district Fatehpur as Case Crime No.263 of 2018, investigation was carried out and final report was submitted which clearly suggests that the corpus is an adult.
By order dated 2nd July, 2019, the Court had directed the corpus to be produced before the Chief Medical Officer, Prayagraj for determining her age.
Pursuant to the said order, the Chief Medical Officer, Prayagraj has submitted report indicating that the corpus is above 18 and below 20 years in age.
As no one is representing respondent no.5 (Rampati), the father of the corpus, we deem it appropriate that notice be issued to the respondent no.5.
Let therefore notice be issued to the respondent no.5 (Rampati), which shall be served through Chief Judicial Magistrate, Fatehpur. The notice shall indicate that the case shall be listed on 8th August, 2019.
List this case on 8th August, 2019.
On the next date, corpus (Gayatri) shall again be produced before the Court. In the meantime, learned AGA shall also file counter affidavit on behalf of respondents 1 to 4 indicating whether there exists any educational certificate of the corpus indicating her date of birth and whether such certificate has been duly verified by the Investigating Officer. The report of the Chief Medical Officer, Prayagraj shall be kept on record. In the meantime, the corpus shall be kept at Government Women Protection Home, Khuldabad, Prayagraj.
Let a copy of this order be supplied to the learned AGA for compliance. "
Pursuant to the above order, the fifth respondent as well as the corpus both are present before the Court.
We have enquired from the fifth respondent as to whether the corpus is an adult or not. The fifth respondent claimed that the corpus is minor but he failed to disclose the date of birth of the corpus though he stated that the corpus was admitted in a Junior School, Aasta, District Fatehpur where she had studied.
Learned A.G.A. has obtained instructions to the effect that in Uchattra Prathmik Vidhyalay, Aasta, Teliani, Fatehpur, the name of the corpus is entered in the scholars register with date of birth recorded as 02.01.2002.
The corpus does not dispute that she has attended that school. No other document relating to her date of birth has been produced before us.
The Apex Court in 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) has held the same principle as applicable to determine the age of juvenile in conflict with law would have to be applied for ascertaining the age of a child victim.
Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 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 above 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 view of the decision of the apex court in Independent Thought's case, the benefit of Exception 2 to Section 375 I.P.C. may not be available to even husband of a girl who has not attained the age of 18 years.
In the instant case, the Child Welfare Committee, by order dated 20.09.2018, directed the corpus to be placed in a Protection Home upon finding her to be minor, with date of birth 02.01.2002, as per school certificate.
In the writ petition, there is no averment that the corpus never attended the school whose certificate has been considered by the Child Welfare Committee. Further, there is no challenge to the authenticity of that certificate.
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, as defined by Section 2 (12) of the J.J. Act, 2015, and, allegedly, a victim of a crime (in this case Case Crime No.263 of 2018 detailed above), 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, her placement in a protection home cannot be said to be de hors the authority of law so as to warrant issuance of a writ of Habeas Corpus. More over, no other place where the corpus could go has been suggested to us. The corpus is unwilling to go with her parents and the petitioner no.2 with whom she is willing to go is an accused. Under the circumstances, till she attains the age of majority, as per her recorded date of birth she needs protection.
In view of the above, the writ petition is liable to be dismissed and is, accordingly, dismissed.
The dismissal of this petition would, however, not preclude the natural guardian/parents of the corpus to move a fresh application for the custody of the corpus so long she is a minor if there is any changed circumstances. If any such application is filed, it shall be considered and decided, in accordance with law. It is further clarified that the corpus, under no circumstances, shall be detained against her wishes in the Protection Home once she attains the age of majority, as per the date of birth indicated above.
Order Date :- 8.8.2019 Sunil Kr Tiwari