Petition for habeas corpus challenging detention of major married minors in Government Child Home. Court held detention lawful per Child Welfare Committee order. Petition dismissed with direction to apply for recall.
Writ petition dismissed. Petitioners directed to apply before Child Welfare Committee for recall of order.
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Court No. - 29
Case :- HABEAS CORPUS WRIT PETITION No. - 174 of 2020
Petitioner :- Shalini Kushwaha And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alok Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Pankaj Mithal,J. Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the petitioners and learned A.G.A. for the respondents.
This petition has been preferred for issuance of a writ in the nature of habeas corpus so as to produce the petitioner No.1 before the Court and to release her from the custody of the Rajkiya Bal Grah (Balika) (Government Child Home (Girls)) , Swaroop Nagar, Kanpur Nagar.
The petitioners contend that both of them are major and have married of their own freewill and in such circumstances, petitioner No.1 cannot be kept in the Government Child Home (Girls).
The facts of the case reveal that a first information report has been lodged against the petitioner No.2 on 14.09.2019 which has been registered as Case Crime No. 0390 under Sections 363, 366 I.P.C. and Sections 7/8 of POCSO Act, Police Station Sachendi, District Kanpur Nagar. In pursuance thereof, as the petitioner No.1 was prima-facie found to be a minor, she was produced before the Child Welfare Committee. The said Committee vide its order dated 19.10.2019 directed that the petitioner No.1 be kept in the Government Child Home (Girls).
Since the petitioner No.1 has been kept in the aforesaid child home pursuant to the order of the Child Welfare Committee, we are of the opinion that her detention is not unlawful. The petitioners have not challenged the aforesaid order by means of an appeal or otherwise.
The petitioner No.1 the alleged victim, is prima-facie found to be below the age of 18 years. Therefore, she is a child in need of care and protection under the Juvenile Justice (Care and Protection of Children) Act, 2015. In view of the above, it is in her interest that the Child Welfare Committee has directed her to be kept in Government Child Home (Girls).
Accordingly, in our opinion, as the custody is not unlawful but pursuant to a quasi-judicial order, the writ petition in the nature of habeas corpus is not maintainable.
It is accordingly, dismissed .
It is open for the petitioners to apply before the Child Welfare Committee for recall of the above order by submitting proof regarding the date of birth/age of the petitioner No.1
Order Date :- 27.2.2020 Nirmal_Sinha
2 issues framed by the court
Whether a habeas corpus petition is maintainable to challenge detention of a minor in a Government Child Home pursuant to an order of the Child Welfare Committee.
What is the remedy for the petitioner to recall the order keeping her in government custody.
1 provisions across 1 enactments
Shalini Kushwaha And Another
State Of U.P. And 3 Others
Pankaj Mithal
Pradeep Kumar Srivastava
As recorded by the court registry
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