Court No. - 42
Case :- HABEAS CORPUS WRIT PETITION No. - 725 of 2019
Petitioner :- Smt. Santoshi Devi
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Rakesh Dubey,Anurag Pandey
Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioner; the learned A.G.A. for the respondents 1, 2 and 4; and perused the record.
This habeas corpus petition has been filed by the alleged husband of the corpus seeking a direction upon the second and fourth respondent to produce the corpus before the Court and set her at liberty.
A perusal of the record would reveal that a first information report was lodged on 27.03.2018 by Gauri Shankar (father of the corpus) at Police Station Sikandara, District Ramabai Nagar (Kanpur Dehat) under Sections 363, 366 I.P.C. and section 4 Pocso Act as Case Crime No. 59 of 2018. The said first information report was lodged against Akash (the next friend of the corpus) wherein it was alleged that the corpus, who is aged 15 years, has been enticed away by the accused.
In connection with the said case, the corpus was recovered and her medical examination was undertaken on 19.04.2018. As per the medical report, she was aged about 17 years. In her statement recorded under Section 164 Cr.P.C. the corpus had expressed her willingness to be with the accused but the court of Additional District & Sessions Judge, Court No.7, Kanpur Dehat by order dated 25.04.2018 directed the placement of the corpus at Nari Niketan. The court found her minor not only on the basis of date of birth (15.09.2003) entered in educational certificate but also as per medical report. The court directed her placement in protection home because the corpus was not willing to go with her parents.
The validity of the protection order dated 25.04.2018 passed by the Additional District & Sessions Judge, Kanpur Dehat has not been questioned in this petition and the date of birth of the corpus recorded in her educational certificate is also not questioned in this petition. It is not the case of the petitioner that the corpus has not studied in any school.
The submission of the learned counsel for the petitioner is that since the medical report of the corpus conducted in the year 2018 indicates that she she was aged 17 years and, now, more than a year has passed since she was medically examined, she would have attained majority by now. Hence, her continued detention in a protection home is not justified.
The learned AGA has opposed the petition by claiming that the corpus is still a minor as per the date of birth recorded in her educational certificate. It has been urged that the age of a child victim is to be determined by applying the principles embodied in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short J. J. Act, 2015), under which, primacy is to be accorded to date of birth entered in educational certificate over medical evidence.
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 determining 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 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 Court, by order dated 25.04.2018, directed the corpus to be placed in a Protection Home (girls) upon finding her to be minor, with date of birth 15.09.2003, as per her educational certificate.
In the writ petition, neither the said order is challenged as being without jurisdiction nor there is averment that the corpus never attended the school whose certificate has been considered by the Court. 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.59 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.
In view of the above, the writ petition is liable to be dismissed and is, accordingly, dismissed, without prejudice to the right of the petitioner to take recourse to other legal remedies that may be available to the petitioner to question the correctness of the order passed by the court dated 25.04.2018 directing placement of the corpus in a protection home.
Subject to above, the petition is disposed off. Order Date :- 30.7.2019 Sunil Kr Tiwari