Dismissed

Priya Devi v. State of U.P. and 5 Others

Allahabad HC19 Jan 2021HABC/694/2020

Case brief

AI extract

What is this about?

This writ petition challenged the detention of a minor girl, Priya Devi, in a protection home. The High Court held that she was a minor based on her high school certificate as per the Juvenile Justice Act, 2015, and found her placement there lawful. The petition was dismissed, directing her to be handed over to the authorities for safety.

What did the court decide?

Writ of Habeas Corpus dismissed; child to be handed over to officials for safety in Nari Niketan pending attaining majority.

Priya Devi Vs State of U.P. and 5 Others — Child Custody and Guardianship | Allahabad HC (2021)

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Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 694 of 2020 Petitioner :- Priya Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vinay Kumar Tiwari Counsel for Respondent :- G.A.

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Shamim Ahmed,J.

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Heard Sri Vinay Kumar Tiwari, learned counsel for the petitioners, the learned A.G.A. for the State-respondents and Sri Akhilesh Kumar, learned counsel for the respondent No.6.

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This writ petition has been filed praying for the following relief:

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“(i) Issue a writ, order or direction in the nature of Writ of Habeas Corpus commanding and directing the Respondent No.1 to 3 to produce the Corpus namely Smt. Priya Devi before this Hon'ble Court and to handover her custody to her natural guardian husband namely Ramesh Chandra @ Mukesh S/o Ganga Prasad @ Faguni Kori R/o Village Taruwapur, H/o Hasanpur Devri, Police Station Zafarganj, Disrict Fatehpur as the Corpus namely Smt. Priya Devi is the legally wedded wife of the petitioner.”

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It is undisputed that as per high school certificate, the date of birth of the corpus – Priya Devi is 14.05.2003 and thus, she still minor. Earlier the Habeas Corpus Writ Petition No.3969 of 2018 was filed on behalf of the corpus Priya Devi (Priya Devi vs. State of U.P. and 4 others), which was dismissed by this court by order dated 16.07.2019. The relevant portion of the order dated 16.07.2019 passed by this court in the aforesaid Habeas Corpus Writ Petition No.3969 of 2018 is reproduced below:

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“Having noticed the rival submissions, before we proceed to address the issue, it would be apposite to observe that the Apex Court had consistently been of the view that the

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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).

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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:

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"(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--

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(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;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(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:

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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."

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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 the above evidence, medical evidence is to be taken into consideration.

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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.

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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:

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"Section 2(14) "child in need of care and protection" means a child--

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(i) to (ii)...................................

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(iii) who resides with a person (whether a guardian of the child or not) and such person--

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(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

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(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or

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(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

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(iv) to (vii).............................................

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(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

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(ix) to (xi)..........................; or

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(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;"

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In Independent Thought v. Union of India, (2017) 10 SCC 800, the apex court after taking a conspectus of the provisions of 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:

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"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,

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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."

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In the instant case, it is not in dispute that the corpus has appeared in her High School Examination and the date of birth entered therein is 14.05.2003. Hence, keeping in mind the provisions of section 94 of the J.J. Act, 2015, it would not be appropriate for us to discard the age recorded in her High School Certificate in these proceedings, more so, when the corpus in her statement recorded under Section 164 Cr.P.C., has admitted that she had appeared in the High School Examination and her date of birth is 14.05.2003. Under the circumstances, the medical evidence need not be called for.

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Once the corpus is found a child within the meaning of child as defined by Section 2 (12) of the J.J. Act, 2015 and, allegedly, a victim of a crime, 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.

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In view of the above, as the corpus is in Women 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. ”

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For the reasons stated in the afore-quoted order dated 16.07.2019, we do not find any good reason to grant the relief as prayed by the petitioner in the present writ petition. Consequently, the writ petition is dismissed.

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The corpus – Priya Devi has been produced before the court by Sangam Lal Prajapati, Sub-Inspector, P.S. Jafarganj, District Fatehpur along with lady constable Minakshi. She has been handed over to the aforesaid officials to keep her in Nari Niketan (respondent No.4) who shall keep her safely and take all care including care for adequate and good quality/ hygienic food. On 13.05.2021, the corpus – Priya Devi shall attain the age of majority. On attaining the age of majority, she shall be at liberty to go to any place of her choice and live with any person of her choice. Order Date :- 19.01.2021 NLY

Priya Devi v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

Priya Devi v. State of U.P. and 5 Others

Case brief

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What did the court decide?

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