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2019 DIGILAW 1685 (ALL)

Mamta @ Mamta Yadav v. State of U. P.

2019-07-15

MANOJ MISRA, VIRENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Shri H.N. Singh for the petitioner, learned A.G.A. for the respondents 1, 2 and 3 and Sri Naveen Kumar Yadav for the respondent no. 4. 2. This Habeas Corpus petition has been filed by Amit Nishad @ Amit Kumar Sahni (next friend) for production of the corpus (Mamta) who is stated to be in detention at Rajkiya Mahila Sharanalaya, Gorakhpur pursuant to order passed by Child Welfare Committee, Gorakhpur. 3. A perusal of the record reveals that the maternal uncle of the corpus, namely, Ram Ashish, lodged a First Information Report against Amit Nishad (next friend of the corpus) alleging that he has enticed away his niece (Mamta - corpus) who is aged about 15 years. This First Information Report was registered as Case Crime No. 0193 of 2019 at Police Station Chiluatal, District Gorakhpur under Sections 363 and 366 I.P.C. 4. Pursuant to the above F.I.R., it appears, the corpus was produced in the court below and her statement was recorded, under Section 164 CrPC, wherein she stated that she has voluntarily entered into a relationship with Amit Nishad and that a false case has been lodged against him. 5. It appears an application was filed by Kamla Devi, mother of Amit Nishad, for having custody of the corpus. In these proceedings, it appears, the High-School mark-sheet cum certificate of the corpus was produced which disclosed her date of birth as 1.1.2003. Upon finding that the corpus is yet to attain majority, the custody application was rejected vide order dated 11.06.2019 and the corpus was directed to be placed at the disposal of Child Welfare Committee. It appears, the Child Welfare Committee upon finding the corpus minor, unwilling to go with her parents, placed her in the protection home concerned. 6. The learned counsel for the petitioner has argued that the petitioner Amit Nishad is husband of the corpus; that the date of birth of the corpus entered in the High-School certificate is not correct; that the correct year of her birth is 2000; and that according to medical report she is aged about 18 years. The learned counsel for the petitioner therefore argued that the corpus cannot be placed in a protection home against her wishes. 7. The learned counsel for the petitioner therefore argued that the corpus cannot be placed in a protection home against her wishes. 7. The learned A.G.A. has opposed the prayer by stating that the date of birth entered in High School Certificate would have to be accorded primacy over medical evidence. 8. We have considered the rival submissions and have perused the record. It is well settled legal principle of law that the age of juvenile/child in conflict with law and a child victim is to be determined by applying the same principles as are applicable for determining the age of a juvenile/child in conflict with law (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). 9. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 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. 10. 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. 10. 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 the absence of the above evidence medical evidence is to be taken for determining the age. 11. 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. 12. 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; 13. 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. 14. In the counter affidavit which has been filed on behalf of the respondent no. 4, various documents have been enclosed including the photocopy of the High School certificate disclosing the date of birth of the corpus as 1.1.2003. 15. 14. In the counter affidavit which has been filed on behalf of the respondent no. 4, various documents have been enclosed including the photocopy of the High School certificate disclosing the date of birth of the corpus as 1.1.2003. 15. Pursuant to this Court's order dated 5.7.2019, the corpus is before us today. 16. We have inquired from the corpus as to whether she has appeared in the High School Examination. She has stated before us that she has appeared in the High School Examination. She also remembers the marks which she had obtained in the High School Examination. Further, she does not dispute the issuance of the high school mark sheet-cum-certificate which has been appended as an annexure to the counter affidavit. Under the circumstances, the date of birth recorded in the High School Certificate cannot be discarded, particularly, in these proceedings. 17. As in the high school mark sheet, which is not disputed, the date of birth of the corpus is 1.1.2003, we find that the corpus is a minor / child, as per the definition of child provided in the J.J. Act, 2015. 18. Once we find that the corpus is a child and victim of a crime (i.e. case crime No. 0193 of 2019, Police Station Chiluatal, District Gorakhpur), she falls in the category of a child in need of care and protection. 19. The next friend of the corpus is none other than the so called husband of the corpus who is accused of enticing her away. If the corpus is released, the possibility of her coming in contact with the accused cannot be ruled out. Her sexual exploitation at his instance can not be ruled out. When we see the matter in the light of the decision of the apex court in Independent Thought's case (supra), she may become victim of crime at the instance of her own alleged husband. Under the circumstances, setting her free and at the mercy of her next friend would not be justified. 20. To explore whether she could be kept at any other place, we specifically asked the corpus as to whether she would like to go with her parents who are there before us in the court room. She refused. 21. Under the circumstances, setting her free and at the mercy of her next friend would not be justified. 20. To explore whether she could be kept at any other place, we specifically asked the corpus as to whether she would like to go with her parents who are there before us in the court room. She refused. 21. Under the circumstances and in absence of suggestion of any other safe place for her care, we are of the considered view that the Child Welfare Committee was justified in directing that the corpus be placed in the care and protection of Protection Home i.e. Rajkiya Mahila Sharanalaya, Gorakhpur. 22. The habeas corpus petition is therefore dismissed. The corpus shall be taken back to the Rajkiya Mahila Sharanalaya, Gorakhpur from where she has been produced. However, dismissal of this petition shall be without prejudice to the right of her parents to seek for her custody by moving appropriate application, at an appropriate stage, before the court concerned. If any such application is moved, it shall be considered and decided on merits in accordance with law, without being prejudiced by any observation made in this order. It is also clarified that the corpus in no circumstance shall be detained in the protection home against her wishes, once she attains the age of majority as per her date of birth recorded in High School Certificate.