Court No. - 42
Case :- HABEAS CORPUS WRIT PETITION No. - 723 of 2019
Petitioner :- Smt. Tammanna And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ved Mani Sharma Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners; the learned A.G.A. for the respondents 1 to 5; and perused the record.
This habeas corpus petition has been filed with multiple prayers, one of them is that a writ in the nature of certiorari be issued quashing the order dated 06.07.2019 passed by the Child Welfare Committee, Shahjahanpur by which the corpus Tammanna has been placed in the care and protection of Children Protection Home (Girls), Hathaura Bujurg, Shahjahanpur.
A perusal of the record would reveal that Case Crime No. 149 of 2019 was registered at P.S. Jalalabad, District Shahjahanpur, under Sections 363, 366 I.P.C. and section 7/8 Pocso Act on the FIR lodged by Asif (respondent no.6), father of the corpus, wherein it was alleged that Tamanna (minor daughter of the informant) was enticed away by accused persons including the petitioner no.2. The corpus was recovered and produced before the Child Welfare Committee. The Child Welfare Committee found that the educational certificate of the victim disclosed her date of birth as 08.05.2003 though medical examination of the victim suggested that she was above 18 years. The Child Welfare Committee accorded primacy to the date of birth entered in the educational certificate and, as the victim had refused to go with her parents, directed her placement in the Child Protection Home (girls) in exercise of power conferred by Section 37 (1) (c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short J.J. Act, 2015) Learned counsel for the petitioners has submitted that in a Criminal Misc. Writ Petition No. 9222 of 2019, the arrest of the accused (petitioner no.2) has been stayed after considering the statement of the victim and the date of birth in her adhar card as per which she is an adult.
Learned A.G.A. has submitted that entry of date of birth entered in the adhar card is not conclusive with regard to its holder and as the age of a child victim is to be determined by applying the principles embodied in Section 94 of the J. J. Act, 2015, under which, primacy is to be accorded to date of birth entered in educational certificate over medical evidence, the order of the Child Welfare Committee is not illegal or perverse so as to warrant issuance of writ of habeas corpus or to invoke the writ jurisdiction, particularly, when alternative remedy is available under Section 101 of the J.J. Act, 2015.
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 Child Welfare Committee, by order dated 06.07.2019, directed the corpus to be placed in Child Protection Home (girls) upon finding her to be minor, with date of birth 08.05.2003, as per her educational certificate.
In the writ petition though it is stated that the victim is illiterate but there is no specific effort to challenge the authenticity of the educational certificate on which the Child Welfare Committee has placed reliance. Further, neither copy of the certificate has been produced nor the name of the institution has been disclosed to enable the court to test the authenticity of the certificate with the help of State agencies. Admittedly, Adhar Card entry in respect of date of birth is not accorded primacy over entry of date of birth in educational certificate. Rather, as per Section 94 of the J.J. Act primacy is to be accorded to the date of birth entered in the educational records. Further, medical evidence is to be accorded consideration only when there is no educational certificate or date of birth certificate available.
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.149 of 2019 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, 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 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 :- 30.7.2019/Sunil Kr Tiwari