The Three judge Bench of High Court of Patna comprising of Justice Ashwani Kumar Singh, Justice Ashutosh Kumar and Justice Birendra Kumar ruled that sending minor girls to the protection home or Nari Niketan in the instances of elopement does not amount to illegal confinement and hence cannot give rise to the remedy under the writ of habeas corpus.
The father of the petitioner herein informed the police that his daughter was found missing after she went out to buy medicines. Upon enquiry it was revealed that his daughter had eloped with a co-villager with whom she was having a love affair. The father of the girl alleged that she had produced a fake matriculation certificate as age proof before the registrar to register her marriage in which her birth date has been stated as 01.01.1998 contrary to the original matriculation certificate which was produced by the father wherein the birth date was stated as 02.1.2002.
Subsequently, the investigation officer filed an application under section 164 of CrPC to record her statement. While so the magistrate assessed her age as 16 years. Another application was filed by the investigation officer praying to assess the age of the girl through medical examination. Following the order of the ACJM, the girl was medically examined by a lady doctor who assessed her age between 16 and 17 years. The ACJM sent the girl to Short stay home and further directed the parents to produce documents relating to her date of birth. The documents produced by the parents proved the date of birth of the girl as 02.01.1998. Since the girl is minor and did not wish to go along with her parents the ACJM ordered to send the girl to after care home and further to be kept until the attainment of majority.
Aggrieved by the said order, the minor girl has filed the present writ petition seeking release from the after care home relying on the decision in Sahebi Khatoon case wherein the court had stated that the girls should be released to go with the person of her choice instead of sending her to the after care home and further directed to circulate the order to all the magistrates and CJM. Following are the issues that were to be considered by the court in the present case.
- Whether the order passed by the magistrate is liable to be set aside?
- Whether the filing of writ of habeas corpus is an appropriate remedy?
- Whether an improper order amount to illegal detention?
- Whether the division bench has power under section 483 of CRPC to direct the Magistrates and CJM to issue similar order issued in Sahebi Khatoon case.
1. The court in the present case ruled that a writ of habeas corpus is not maintainable if the custody is as per the order passed by the judicial authority or any other competent authority.
2. With regard to the issue whether the division bench could issue a general order under section 483 of crpc to release the minor girls who come before them with the charge of marrying the person of their choice and further to be allowed to go with the person they choose, the court held that as per the Constitution of India, such order of general nature cannot be issued.
3. The court examining section 94 of the Juvenile Justice Act held that the age of the minor should be determined in the same method used for determining the age of the accused.
4. The court also examined the principle of parens patriae held that the decision of the court must serve the best interest of the child. Hence the court must also take into consideration the physical health, mental health, nutrition, education and her general well-being.
The court ruled that sending a girl to Nari Niketan can never be termed as any punishment and rather stated that the court steps in as a guardian of the child which acts in the best interest of the child. While considering the argument that the Nari Niketan are in poor conditions, the court stated that it is the duty of the state to maintain the living conditions of Nari Niketan. Thus the court dismissed the writ petition stating that sending minor girls to Nari Niketan does not amount to illegal confinement.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
Criminal Writ Jurisdiction case No: 1335 of 2019, High court of Patna, order dated 05/03/2020.