Case BriefsHigh Courts

Kerala High Court: The Division Bench of K.Harilal and Annie John. JJ. allowed a revision petition filed by mother of a 15-year old girl, who was subjected to sexual assault by a family friend named Imam Mr Shafeek Al-Kasmi.

The instant petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 challenging the order of respondent whereby it was declared that petitioner’s minor daughter required care and protection and that the child’s counselling shall be carried out by admitting her in an institution. 

Mr Ram Mohan G., counsel on behalf of the petitioner, submitted that the continued detention of a child under the orders of respondent was prejudicial to her interests and well being as she required the moral support, guidance and presence of her mother.

Mr Suman Chakravarthy, Senior Government Pleader appearing on behalf of respondent, submitted that even though the sexual assault took place in February 2019, petitioner and her relatives did not report the matter to police due to which the child could not be medically examined. Further, as per the report of District Child Protection Officer, it was not congenial to restore the child to the petitioner, since the accused was a well-known religious leader and a frequent visitor of their family, who had not been arrested so far. Therefore, the child was not safe with the petitioner.

The learned Judges interacted with the child in Chambers in the absence of her mother and relatives. The child expressed her willingness to go along with her mother or maternal grandmother but was not ready to live in the institution. 

The Court opined that inquiry, as contemplated under Section 36 of the Act, was not conducted by the respondent in the presence of petitioner or other family members of the victim. Respondent did not try to ascertain the wishes of the child. Thus, the mandate of Section 3 of the Act was violated. It was held that when the child needs care and protection, then before putting the child in Children’s Home, there should be the application of mind by the committee and it must also take into account the child’s wishes along with the investigation report of Child Welfare Committee.

In view of the above, the impugned order was set aside and Superintendent of Child Shelter Home was directed to release the child forthwith to the petitioner-mother.[Sheeja Navas v. Child Welfare Committee, 2019 SCC OnLine Ker 1156, Order dated 08-03-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of K.N. Phaneendra and K. Natarajan, JJ. allowed a habeas corpus petition filed by the maternal grandfather of a child and gave directions for care and protection of the child. 

The instant petition was filed to produce the petitioner’s grandson aged 14 years (detenue) before Court who was in the custody of a police officer. The child was suffering from mild mental retardation and his mental disability was assessed at 50 per cent. It was submitted by the petitioner that he was unemployed, his son was a mason, and his daughter (mother of the child) was also not keeping sound mental health. Therefore, he had no objection to the Court passing an appropriate order regarding care and protection of the child.

It was submitted before Court that under provisions of Juvenile Justice (Care & Protection of Child) Act, 2015 a child may be referred to Child Welfare Committee (CWC) for taking appropriate measures to keep him in any of the recognized institutions which can take care of his physical and mental health.

The Court opined that provisions of the Juvenile Justice Act are contemplated mainly to safeguard the interest with reference to taking care of and protecting the welfare of children. In view of the fact that grandfather and mother of the detenue were not capable of taking care of the detenue, the Court disposed of the petition directing the police to send detenue to CWC for proper care and protection.[Joseph v. State of Karnataka, 2019 SCC OnLine Kar 422, Order dated 18-02-2019]

Hot Off The PressNews

As per Ministry of Labour & Employment, Government is following a multi-pronged strategy for elimination of child labour. It comprises of statutory and legislative measures, rehabilitation and universal elementary education along with convergence with other schemes for socio economic development. Government has enacted the Child Labour (Prohibition & Regulation) Amendment Act, 2016 which came into force w.e.f. 01-09-2016. The Amendment Act inter alia provides for complete prohibition of work or employment of children below 14 years in any occupation and process and adolescents in the age group of 14 to 18 years in hazardous occupations and processes. The amendment also provides stricter punishment for employers for violation of the Act and made the offence as cognizable.

After strengthening the legislative framework through amendment in Child Labour Act, Government has framed the Child Labour (Prohibition & Regulation) Amendment Rules, 2017 which inter alia specifies the duties and responsibilities of State Governments and District Authorities to ensure effective enforcement of the provisions of the Act. Government has also devised a Standard Operating Procedure (SOP) as a ready reckoner for trainers, practitioners and enforcing and monitoring agencies. Government is also implementing the National Child Labour Project (NCLP) Scheme for rehabilitation of child labour. Under the Scheme children in the age group of 9-14 years, rescued/withdrawn from work are enrolled in the NCLP Special Training Centres, where they are provided with bridge education, vocational training, mid day meal, stipend, health care, etc. before being mainstreamed into formal education system.  Further to ensure effective enforcement of the provisions of the Child Labour Act and smooth implementation of the NCLP Scheme a separate online portal PENCIL (Platform for Effective Enforcement for No Child Labour) has been developed.

In addition to above Ministry of Women and Child Development has enacted Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). As per Section 2 (14) (ii) and (ix) of JJ Act, a child who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be inducted into drug abuse or trafficking is included as a “child in need of care and protection”, among others. The children in need of care and protection (CNCP) for rehabilitation has been placed in institutional care i.e. children homes or non-institutional care, such as sponsorship, foster care by Child Welfare Committee. As per JJ Act, 2015, State/UTs are required to set-up Child Care Institutions (CCIs) and are also required to register and monitor them under Section 41 and 54 of the Act respectively.  The primary responsibility of execution of the Act, lies with the State/UTs. However, Central Government is managing “Child Protection Services” (CPS) (erstwhile Integrated Child Protection Scheme) under umbrella Integrated Child Development Services, and providing financial assistance, as Grant-in-Aid, to the States/UTs on sharing pattern for, inter-alia, undertaking a situational analysis of children in difficult circumstances, for setting up and maintenance of various types of CCIs. Further National Commission for Protection of Child Rights (NCPCR), a statutory organization under this ministry, has developed a Standard Operating Procedure (SOP) for care and protection of Children in Street Situations to streamline the processes and interventions regarding children in street situations. Under the scheme “CPS”, institutional care is provided through CCIs, as a rehabilitative measure. In these CCIs, children are provided age appropriate education either within the institution or outside in a formal education system through convergence with other schemes and programs of the Government or civil society. Under the non-institutional care component, support is extended for adoption, foster care and sponsorship.

Ministry of Women and Child Development

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J., allowed a criminal revision petition filed against the order of the Child Welfare Committee (CWC) as affirmed by the appellate court whereby the victim girl, in this case, was held to be a minor.

The petitioners were the employer of the victim and were accused in the FIR registered under Sections 325 and 376 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 75 of the Juvenile Justice Act, 2015. The matter arose out of an issue before the CWC pertaining to wages to the victim. Since there was no document available to determine the age of the victim, a bone ossification test was conducted wherein her age was estimated to be in the range of 17-19 years. By the order impugned, the CWC determined victim’s age as 17 years; which order was affirmed by the appellate court. Aggrieved thus, the petitioners filed the instant revision.

Referring to Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, the High Court observed that the ossification test is not conclusive for age determination. The margin of error in age ascertained by radiological examination is two years on either side. The question that arose for consideration before the Court was ‘whether, while determining the age of the victim, the benefit of doubt in the age estimated by bone ossification test, is to go to the accused or the victim?’ Further referring to Triveniben v. State of Gujarat, (1989) 1 SCC 678 and Maru Ram v. Union of India, (1981) 1 SCC 107, the Court observed that any benefit of doubt, other things being equal, at all stages goes in favour of the accused. In the facts of the present case where age was estimated to be in between 17-19 years, the High Court held that even without considering the margin of error, the age is to be determined at 19 years. And as such, the order of the CWC holding the victim to be a minor was unsustainable. Accordingly, the order impugned, as far as it related to the determination of victim’s age, was set aside. However, the order of payment of wages and childhood loss compensation was not interfered with. The petition was disposed of in the terms above. [Shweta Gulati v. State (NCT of Delhi),2018 SCC OnLine Del 10448, dated 08-08-2018]