Court No. - 42
Case :- HABEAS CORPUS WRIT PETITION No. - 636 of 2019 Petitioner :- Km. Mohini Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shashi Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioner, learned AGA for respondents no. 1 to 5 and perused the record.
This habeas corpus petition has been filed by Archana, elder sister of corpus Mohini, seeking production of the corpus and to set her at liberty from the confines of a protection home.
A perusal of the record would reveal that Ajay Pal (respondent no.6), the father of the corpus, lodged a first information report at P.S. Patiyali, District Kasganj, against seven persons including Archana (the next friend of the corpus). In the first information report it has been alleged that the corpus is a minor, aged about 13 years 8 months, and she has been enticed away by Archana.
In connection with the above case, the Chief Judicial Magistrate, Kasganj, upon finding that the date of birth of corpus (Km. Mohini), recorded in Junior High School, Jhaujor, Paliyali, is 10.7.2004 and the corpus is unwilling to go with her parents, exercising his power under Section 37(1)(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short J. J. Act, 2015) and upon finding that the corpus was a child in need of care and protection, as contemplated by Section 2 (14) of the J.J. Act, 2015, placed her in the protection home.
Upon prima facie assessment of facts and considering that custody of the corpus was sought by her elder sister, the Court by order dated 4.7.2019 directed issuance of notice to sixth respondent as also for production of the corpus.
The office has submitted a report that the petitioner has not taken steps to serve the sixth respondent.
However, the corpus has been produced pursuant to the order dated 4.7.2019.
The elder sister of the corpus, Archana, is also present in the Court.
There is no dispute about the date of birth of the corpus being 10.7.2004. However, Archana, elder sister and next friend of the corpus, has stated that she would take good care of the corpus. She stated that the corpus was being harassed by her parents. She, however, does not deny that she is also one of the accused in the case that has been lodged by her father.
Learned AGA has pointed out that from the order of Chief Judicial Magistrate, Kasganj, dated 16.4.2019, it appears that the victim had expressed her desire to marry the Dewar of Archana and, therefore, if the corpus is given in custody of Archana, then exploitation of the corpus cannot be ruled out.
Upon such suggestion, Archana has stated that though she has a Dewar but she will get the corpus married only when she attains majority and only as per her choice.
We have considered the rival submissions. Once it is found that the corpus is a minor and is a child in need of care and protection, she has to be placed in custody of a person who can take appropriate care of the corpus and protect her from any exploitation. As we find that the next friend, namely, Archana, elder sister of the corpus, is herself an accused in the first information report which has been lodged by her father and it cannot be ruled out that the underlying object of the next friend is to secure relationship of the corpus with her Dewar, though it is not admitted, we do not find it to be a fit case where we should direct handing over the custody of the corpus to her next friend, namely, Archana. As we find that corpus is a minor and she does not wish to go with her parents, her placement in a protection home under the order of Chief Judicial Magistrate, Kasganj, does not suffer from any legal infirmity.
The petition is, accordingly, dismissed.
The corpus shall be taken back to the protection home at Mathura, from where she has been brought.
It is made clear that dismissal of this habeas corpus petition is without prejudice to the right of the natural guardian of the corpus to seek for custody of the corpus in accordance with law. If any such application is filed, the same shall be considered and decided in accordance with law without being prejudiced by any of our observation.
It is also clarified that the corpus in no event shall be detained in the protection home against her wishes after she attains majority.
Order Date :- 30.7.2019 Vandana