Case BriefsHigh Courts

Rajasthan High Court: Sandeep Mehta, J., allowed the revision application, granted bail and set aside the impugned orders.

The facts of the case are such that the petitioner has a child ‘X’ son who is a young boy of less than 16 years in conflict with law and been confined for the offences under Sections 341 and 395 of the IPC and is lodged at the Child Observation Home, Dungarpur. The bail application was preferred on his behalf by his natural guardian (father) Laxman under Section 12 of the Juvenile Justice Act was rejected by the Principal Magistrate, Juvenile Justice Board, Dungarpur which was challenged by an appeal under Section 101 of the Juvenile Justice Act which was also rejected. Assailing these two orders instant revision application was preferred under Section 397 of the CrPC read with Section 102 of the Juvenile Justice Act through his natural guardian.

Counsel for the State submitted that the revision cannot be decided in absence of a notice to the complainant respondent 2 Mani Lal.

Sections 12, 101 and 102 of the Juvenile Justice Act are the provisions dealing with the prayer for bail made on behalf of the CICL at different stages

The Court observed that an application for bail on behalf of a CICL is firstly required to be filed before the Juvenile Justice Board under Section 12 of the Act, which does not stipulate any opportunity of hearing to the complainant/victim for deciding such bail application.

The Court observed that in case of rejection of the bail application by the Board, the CICL can approach the Children court/Sessions court concerned by filing an appeal under Section 101 of the Juvenile Justice Act which makes it clear that there is no requirement in this provision as well to hear the complainant/victim

It was observed in case of an appeal preferred thereagainst under Section 101 of the Juvenile Justice Act has also been rejected, these orders can be challenged by filing a revision in the High Court by invoking powers conferred under Section 102 of the Juvenile Justice Act which stipulates that the High Court shall not pass an order under this section, prejudicial to any person without giving him a reasonable opportunity of being heard.

The Court observed that after analyzing the entire scheme of the Juvenile Justice Act, I am of the firm view that the concept of hearing the complainant in an application for bail of a CICL under the Juvenile Justice Act be it before the Board, the appellate court or the revisional court is totally foreign to the fundamental principles underlying the welfare legislation.

The Court also observed that if the legislature had intended to give a right of hearing to the complainant in proceedings of bail, under the Juvenile Justice Act specific insertions to this effect could have been made in Sections 12, 101 and 102 of the Juvenile Justice Act as are available in the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, another special legislation.

The Court observed that practice has been adopted of impleading the complainant as a party in a revision for bail of a juvenile under Section 102 of the Juvenile Justice act. It has also been seen on numerous instances that in cases involving multiple accused, of which few are adults and one is juvenile, the bail applications of the adult offenders are decided much earlier, whereas the juvenile continues to languish in the Observation Home, awaiting service of notice on the complainant.

This anomalous situation is absolutely unwarranted and has to be resolved by taking a pragmatic, legal and logical view of the situation.

The Court held “The apprehension expressed regarding the likelihood of the petitioner coming into contact with other offenders can be taken off by requiring his natural guardian to furnish a suitable undertaking. I am of the opinion that petitioner child is entitled to be enlarged on bail. Consequently, the instant revision is allowed.”[X v. State, S.B. Criminal Revision Petition No. 494/2021, decided on 01-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


For Petitioner(s): Mr. Jitendra Ojha

For Respondent(s): Mr. Arun Kumar

Case BriefsSupreme Court

Supreme Court: Considering the need for continuous monitoring of the implementation of the schemes in favour of the affected children, the bench of L. Nageswara Rao and Aniruddha Bose, JJ has issued a series of directions after it was submitted before it by amicus curiae Gaurav Agarwal that identification of children who have become orphans or have lost one of their parents during this pandemic does not brook any delay. Immediate relief should follow the identification of such children without any delay.

Data

The information provided by the State Governments/Union Territories on the ‘Bal Swaraj’ Portal upto 05.06.2021 shows that there are 30,071 children who have become orphans or have lost one parent or abandoned. There are 3,621 orphans, 26,176 children who have lost one parent and 274 children who have been abandoned.

Key suggestions

  • the DCPO should meet the child and the guardian immediately after receipt of information and ascertain the willingness of the guardian to take care of the child apart from making an assessment of the immediate needs of the child and the financial condition of the guardian.
  • DCPO should ensure that adequate provision is made for ration, food, medicines and clothing etc. for the child.
  • An amount of Rs.2,000/- per month should be released in favour of the child till CWC passes an order after due inquiry.
  • follow-up with the child at least once a month to ascertain his/her well being.
  • The financial benefit that was announced by Integrated Child Protection Scheme (ICPS) to the tune of Rs.2000/- per month per child has to be provided immediately by the DCPOs.
  • There should be continuous monitoring regarding the welfare of the child by the District Child Protection Units (DCPUs) even after the financial order is passed by the CWC. This should be done periodically every three to six months.
  • the affected children should not face a situation of discontinuance of their education. If the affected children are studying in Government schools they should be permitted to continue. In so far as the children who are studying in private schools, the State Governments/Union Territories should take steps and direct the continuance of the children in those schools at least for period of six months by which time some arrangement can be worked out.
  • the protection of property rights of the children, further education of the children including employment opportunities, special care to be taken in respect of the girl child ( to be taken up on the next date of hearing.)

Illegal adoption of affected children

The State Governments/Union Territories are directed to prevent any NGO from collecting funds in the names of the affected children by disclosing their identity and inviting interested persons to adopt them. No adoption of affected children should be permitted contrary to the provisions of the JJ Act, 2015. Invitation to persons for adoption of orphans is contrary to law as no adoption of a child can be permitted without the involvement of CARA.

“Stringent action shall be taken by the State Governments/Union Territories against agencies/individuals who are responsible for indulging in this illegal activity.”

Direction issued

(1) The State Governments/Union Territories are directed to continue identifying the children who have become orphans or lost a parent after March, 2020 either due to Covid-19 or otherwise and provide the data on the website of the NCPCR without any delay. The identification of the affected children can be done through Childline (1098), health officials, Panchayati Raj Institutions, police authorities, NGOs etc.

(2) The DCPU is directed to contact the affected child and his guardian immediately on receipt of information about the death of the parent/parents. Assessment shall be made about the suitability and willingness of the guardian to take care of the child. The DCPU should ensure that adequate provisions are made for ration, food, medicine, clothing etc. for the affected child. Financial assistance to which the disconsolate child is entitled to under the prevailing schemes by the Central Government and the State Governments/Union Territories should be provided without any delay.

(3) The DCPO should furnish his phone number and the name and phone number of the local official who can be contacted by the guardian and the child. There should be a regular follow up by the concerned authorities with the child at least once in a month.

(4) If the DCPO is of the prima facie opinion that the guardian is not suitable to take care of the child, he should produce the child before the CWC immediately.

(5) CWC should provide for the essential needs of the child during the pendency of the inquiry without fail. The inquiry should be completed expeditiously. CWC shall ensure that all financial benefits to which the child is entitled are provided without any delay.

(6) The State Governments/Union Territories are directed to make provisions for continuance of education of the children both in Government as well as in private schools.

(7) The State Governments/Union Territories are directed to take action against those NGOs/individuals who are indulging in illegal adoptions.

(8) Wide publicity should be given to the provisions of the JJ Act, 2015 and the prevailing schemes of the Union of India and the State Governments/Union Territories which would benefit the affected children.

(9) DPCO shall take the assistance of government servants at the Gram Panchayat level to monitor  the welfare of the disconsolate children who are devastated by the catastrophe of losing their parent/parents.

[IN RE CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2021 SCC OnLine SC 422, order dated 07.06.2021]


FOR NCPCR Mr. K. M. Nataraj, Ld. ASG, Ms. Swarupama Chaturvedi, AOR, Ms. Indira Bhakar Adv., Ms. Neha Rai, Adv.

Union of India: Mr. Aishwarya Bhati, ASG Mr. Akshay Amritanshu, Adv Mr. B.V. Balram Das, AOR Mr. S.S. Rebello, Adv. Ms. Swati Ghildiyal, Adv. Mr. Prashant Singh B, Adv. Mr. G.S. Makker,Adv. Mr. Raj Bahadur, AOR Mr. Rana Mukherjee, Sr. Adv. Ms. Anitha Shenoy,Sr.Adv. Ms. Srishti Agnihotri, AOR Mr. Abhishek Jebaraj,Adv. Ms. Sanjana Grace Thomas,Adv. Ms. Anmol Gupta,Adv. Mr. Chandratanay Chaube, Adv.

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that:

“…woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.”

Present matter unbundles the trauma of a couple in a live-in relationship, isolation of a single mother, love of mother for her child, rights of biological father, entangled in the legal vortex.

Factual Matrix

In the instant case, the couple – John and Anitha are Christian and Hindu by their faith. The couple realized that their intimacy knew no bounds to chart a new path in their life. They started to live together at Ernakulam, 65 km away from the parental house of Anitha. Opposition came from their own kith and kin. They waited to officially marry once their parents were convinced. But the biological instincts of the couple could not be arrested. Anitha became pregnant in the month of May 2019. She gave birth to a baby girl on 3/2/2020 in the Government Hospital, Aluva. The birth certificate indicates the names of father and mother of the child.

Issue in the present case revolves around the importance of the birth certificate.

In the revision memorandum it was stated that the John broke the relationship with Anitha and due to anxiousness, Anitha made attempts to contact John but all were in vain after which she had no option other than to approach the Child Welfare Committee, Ernakulam and handed over the child to the Committee.

Thereafter, she constantly kept in touch with the Committee and the Child Care Institution where the child was put up, to keep a track of the wellbeing of the child.

Further it was stated in view of the above that,

Desperation and plight of the motherhood reflected through the chat messages with the social worker depicted the care for the baby from the womb of the person, Anitha.

Since Anitha had executed the Deed of Surrender the said deed permitted the Committee to give the child for adoption.

Adding to the above, it was stated that the Committee, noting that Anitha is an unmarried mother, followed the procedure that delineated for surrender of the child by an unwed mother as referable under the Adoption Regulations, 2017. On completion of the procedure, the Committee declared that the child is legally free for adoption in the manner contemplated under Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Child was thereafter given in adoption to a couple by the Family Court order on 02-02-2021.

Petitioners approached the Court claiming themselves as a live-in relationship couple approached the Court.

Government Pleader and counsel appearing for the Committee submitted before the Court that the child had already been given in adoption and based on the submissions the Court had also opined that a writ of Habeas would not lie as the proceedings concluded under JJ Act have a legal colour.

Analysis, Law and Decision

Central issue in the present matter was more related to a perplexing mind; accepting and recognizing live-in relationships.

Did the law differentiate between unwed and legally wed couple in matters or relationships not connected with marriage, as a social institution?

In the context of juvenile justice does the law differentiate unwed couple and legally wed couple to recognize biological parents?

Section 38 of the Juvenile Justice Act declares the procedure for declaring a child legally free for adoption.

Separate procedure has been referred for orphan and abandoned child and a distinct procedure for a surrendered child.

Which of the procedures have to be followed was the question involved in the case.

Under Section 38 of the JJ Act, the procedure for declaration has been made for the abandoned child and surrendered child keeping in mind the paramount parental rights of biological parents.

Bench noted that the Committee had followed the procedure for surrendering the child applicable to an unmarried mother.

Following are the circumstances wherein normally a child needs care and protection from the State/Committee:

  1. Orphan or abandoned child
  2. Surrendered child

‘Surrendered child’ needs further classification under the law:

  1. surrendered by a married couple
  2. Surrendered by an unmarried mother.

Question that perplexed Court’s mind:

High Court expressed while placing their doubt that whether it can hold a couple in a live-in relationship not a married couple for the purpose of law related to surrender?

Married Couple v. Unwed Mother

Court elaborated that a married couple has to be understood in contrast to an unwed mother. Unwed mother must be understood as a mother who begotten a child as a result of sexual assault or in a casual relationship. Law in such circumstances places importance to the right of such mothers.

“… an unmarried mother would be recognised as a single parent and surrender by such mother is legally considered as valid in the light of Section 35(1) of JJ Act and Adoption Regulations 7(4), 7(7) and 7(21).”

Married Couple: Deed of Surrender

The procedure in case of a married couple ensures that both the parents execute deed of surrender and; if the child born to a married couple and surrendered by one of the biological parent, and whereabouts of the other parent are not known, the child shall be treated as an abandoned child and procedure under Regulation 6 will have to be followed. This procedure mandates an inquiry to trace out the biological parents or the legal guardians.

Context of Juvenile Justice Act | Whether a married couple includes a couple in a live-in relationship or not?

Parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage.

Live-in relationship

In a live-in relationship, a couple acknowledges the mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both.

 Supreme Court in its decision of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, considered live-in relation similar to the marriage provided it fulfills the requirements referred as follows:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

Bench remarked that, If a mother does not acknowledge any sort of relationship with the biological parent such mother has to be treated as an unmarried mother for the purpose of Juvenile Justice.

The woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the purpose of Juvenile Justice.

No relevance of Legal Marriage

The dominant object of law in making the distinction between the married couple and unmarried mother is in the context of the nature of inquiry to be conducted for tracing the biological parents to restore the child with biological parents or guardian, and in such circumstances, the legal marriage has no relevance.

In matters of surrender by unwed mother no such inquiry is contemplated as she does not acknowledge any relationship with the biological father. 

A woman’s womb is precious possession of her personhood and no one can claim right over it; except with her consent.

Woman’s decision on fatherhood

Bench expressed that it is for the woman to recognize and decide on the recognition of fatherhood of child. If she chooses the preference to acknowledge the biological father at the time of conceiving, the father has every right to be recognized as a biological father

Adding to the above, Court stated that if at the time of conception, the mother has not recognized the right of fatherhood, in the context of JJ Act, a man has no right to recognize himself as the biological father, except with her consent and; she continues to be recognized as an unwed mother for the purpose of JJ Act.

“Decisional autonomy is the key in privacy rights.”

 Hence, in view of the above discussion, it can be held that a child born in a live-in relationship also has to be construed as a child born to a married couple.

In view of the facts and circumstances of the case, High Court noted that father’s name was disclosed to the hospital authority and name of the child was also given in the birth certificate in which father’s name was mentioned.

Birth certificate is a crucial document for public authority to verify that the child is born to a married couple or not.

 High Court held that Committee is not responsible to inquire about the legal status of the marriage as they are not the competent authority to decide on such status.

 Once it is found that the child is born to a couple, for all practical purposes of JJ Act, inquiry must be initiated as though the child belonged to a married couple. 

Bench held that due enquiry procedure postulates an institutional decision of the Committee treating the child as abandoned or surrendered. The enquiry in this case must have been an enquiry as contemplated for an abandoned child as only one parent alone had executed the surrender deed.

Once the declaration under Section 38 is found invalid, all consequential proceedings would also fall.

While parting with the decision, High Court added that:

“…in a country where the people worship Goddess, in the land where people have been taught about woman : Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaahkriyaah”. (Manusmriti (3.56)). [Gods abide where women are worshiped and all actions go futile where they are dishonoured] (Manusmriti 3 : 56),

 In the State where we boast cent percent literacy, our attitude to woman is despising; a single mother has no financial or social support. She faces emotional challenges and forced to believe she is destined to be isolated as result of guilt. She gets hardly any support from the system. It is time for the Government to evolve a scheme to support the single mother.

The anomie Anitha had to face as a single mother is the hurdle created by the society. Anitha never attempted to exterminate her womb; she bore the pain to give birth; like every mother she loved to care the child… but was not allowed by circumstances in the society. She thought without support of man, she cannot survive.”

Therefore, the certificate issued under Section 38 of the JJ Act is set aside and the revision was allowed and in view of the biological father’s willingness to take care of the child, Committee to consider the rights to claim for restoration under Section 37 and 40 of the JJ Act.[ XXXXXXXXXX v. State of Kerala, 2021 SCC OnLine Ker 1709, decided on 09-04-2021]


Advocates before the Court: 

By Advs. Sri. Rajit

Smt. Lekshmi P. Nair

R6 by Adv. Smt. B. Bindu

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: J.J. Munir, J., directed that the minor in the instant case who stated that she married the accused of her free will, be housed in a State facility or shelter home which shall be other than a Nari Niketan or a home meant for delinquents, till she attains the age of eighteen years.

Chhavi a minor was the daughter of Chhanga who is the second petitioner. He had filed an FIR against Laxman under Sections 363 and 366 of Penal Code, 1860.

It was stated that Chhanga’s minor daughter had gone to fetch her cattle when the three accused were seen around her, after which she went traceless. A video was made viral by the co-accused in which it was shown that Chhavi was in the company of Laxman. Hence another FIR was registered under Section 66 of the Information Technology Act, 2000.

Chhavi in her statement before the Magistrate stated that she had accompanied Laxman of her free will and was in love with him. Further, it was added that she married Laxman and was now in her family way.

After investigation, a charge-sheet had been filed against Laxman under Sections 363, 366, 376 of IPC and Section 7/4 of the Protection of Children from Sexual Offences Act, 2012.

Bench noted that Chhavi was staying of her freewill without any compulsion, duress or pressure, which clearly implies that she was not in any kind of illegal confinement.

Whether Chhavi is within her rights under the law to stay of her freewill with Meena, who is Laxman’s sister, the man she has married?

If it were to be held that Chhavi was a minor on the date she married Laxman, a subsidiary question that would also be of some consequence to the parties’ future is, whether the marriage would be void or voidable?

With regard to the determination of age, Bench stated that principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well.

Bench noted that the provisions of Section 94(2) of the Act of 2015 spare no room for the Court to look into any evidence, in the face of date of birth certificate from the school or the matriculation, or an equivalent certificate from the examination board.

A plain reading of Section 94 of 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

Therefore, notwithstanding the prosecutrix’s stand that she is 20-years-old and has married Laxman of her freewill, she cannot be heard to prove her age anything different from what it is recorded in her high school certificate.

Hence, Chhavi was to be held a minor on the date of her marriage and till date. CWC ordered her to be given in the foster care of Laxman’s sister.

Further, the Court added that even if Chhavi’s case that she married Laxman of her freewill were accepted, she cannot be permitted to live in the foster care of his sister, where access to each other cannot be guarded.

In view of the above discussed High Court held that so long as Chhavi is a minor, irrespective of the validity of her marriage to Laxman, she cannot be permitted to be placed in a position where there is a likelihood of carnal proximity. If it were permitted, it would be an offence both under the Penal Code and under the Act of 2012.

The Supreme Court decision in Independent Thought v. Union of India, (2017) 10 SCC 800 completely excludes the possibility of sanctioning or decriminalising carnal relations between a man and his wife, the wife being below the age of 18 years.

It is not difficult to infer that in the home, where Laxman’s sister Meena stays with her in-laws, Chhavi cannot be extended the protective cover envisaged for a girl below the age of 18 years, insulating her from any kind of sexual activity, even with her husband.

Validity of Chhavi’s marriage to Laxman

Court opined that, the validity of the marriage must be examined in order to do substantial justice to the parties.

Marriage of a minor child to be void in certain circumstances.–Where a child, being a minor-

(a) is taken or enticed out of the keeping of the lawful guardian; or

(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

Since nothing was recorded by the Judicial Magistrate that may have attracted the provision of Section 12 of the  Prohibition of Child Marriage Act, 2006.

Thus, Chhavi’s marriage to Laxman was not a void marriage; rather a voidable marriage at the option of Chhavi, by virtue of Section 3 of the Act.

Lastly, the Bench held that Chhavi, after she turns a major or even before that, can petition the competent court to have the marriage annulled, and she could do so within two years of attaining majority. Of course, she can acknowledge and elect to accept the marriage.

Adding to its conclusion in view of the above discussion, Court stated that all that Chhavi chooses to do is not this Court’s determination, but it is to clarify the inter se rights of parties vis-à-vis their marriage, that the Court has ventured to examine the legal status of the marriage, which Chhavi supports as her voluntary act, while a minor.

In the opinion of this Court, under the circumstances, Chhavi has to be housed in a State facility or shelter home which shall be other than a Nari Niketan or a home meant for delinquents. She has to be accommodated in a safe home/shelter home with all necessary facilities, where she and her child can stay comfortably, till she attains the age of eighteen years.

Habeas Corpus Petition was allowed in view of the above. [Chhavi (Minor) v. State of U.P., 2021 SCC OnLine All 219, decided on 10-03-2021]


Advocates before the Court:

Counsel for Petitioner: Ajay Kumar

Counsel for Respondent :G.A., ,Pankaj Kumar Govil, Pankaj Govil

Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case 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, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsHigh Courts

Punjab and Haryana High Court: Jai Shree Thakur J., set aside the impugned order and allowed the appeal.

The facts of the case are such that he was arrested in FIR No.94 registered under Sections 307, 376, 457, 511 Penal Code, 1860 i.e. IPC at Police Station Division No.7, Ludhiana. He moved an application for grant of bail before Juvenile Justice Board, but the same was dismissed. The appeal preferred by him before the Additional Sessions Judge, Ludhiana was also dismissed. The present revision petition has been filed to challenge the impugned order dated 22.06.2020 passed by the Juvenile Justice Board, Ludhiana, whereby, the bail to the present petitioner aged 15 years (who has already been declared juvenile) has been declined and the same has been affirmed by Additional Sessions Judge, Ludhiana vide judgment dated 07.08.2020.

Counsel for the petitioners submitted that the argument forwarded by the respondents that  if released on bail he would come in close proximity to her as he resides near to the house of the complainant; and he may be exposed to moral and psychological danger and also his release would defeat the ends of justice, whereas, no such finding was recorded as to how he will come in contact with criminals and how he will be exposed to moral, physical or psychological danger, or that his release would defeat the ends of justice. It was also submitted that the petitioner is a student and he is not a previous convict nor is associated in any kind of un-social or criminal activities. It is further argued that nothing has been brought on record so as to show that the petitioner is having any criminal background or any criminal case has been registered against any of his family member.

Counsel for the respondents opposed the grant of bail to the petitioner on the ground of heinousness and seriousness of offence.

The court observed that from a bare reading of the provisions of Section 12 of the Juvenile Justice Act, 2015 i.e. J.J. Act, it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by him, and bail can be declined only in such cases where reasonable grounds are there for believing that the release is likely to bring the juvenile into association of any known criminal or expose him to moral, physical or psychological danger, or that his release would defeat the ends of justice. Meaning thereby, as per the aforesaid provision, a juvenile can be denied the concession of bail, if any of the three contingencies specified under Section 12 (1) of the J.J. Act is available.

 Issue regarding orders declining bail to juveniles

The Court observed that bail of a child in conflict with law cannot be rejected in a routine manner and if the bail is declined, a reasoned order has to be given by the Board. A juvenile has to be released on bail mandatorily unless and until the exceptions carved out in proviso to Section 12 (1) of the J.J. Act, 2015 itself are made out. The exceptions are noted being:-

  1. a) a reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal;
  2. b) his release is likely to expose him to any moral, physical or psychological danger; and
  3. c) his release would defeat the ends of justice.

The Court thus held that “I am of the view that both the Courts below have not satisfied the requirement of provisions of Section 12(1) of the J.J. Act and without adhering to material on record, the bail application of the petitioner has been declined. Petitioner is in custody since the date of filing of the FIR i.e. 17.05.2020 and no purpose will be served, in case, he is kept in custody. The impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside.”

 In view of the above, impugned order was set aside and appeal allowed.[Vishvas v. State of Punjab, CRR No. 53 of 2021, decided on 08-02-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that a Canadian Adoption Agency which was recognised for a very long period of time and its’ non-renewal will not result in disbarment from operating as a recognised agency.

Petitioner a Canadian Organisation duly recognized as an authorized foreign adoption agency by the Ontario Ministry of Children and Youth Services, in Canada.

It was stated that the petitioner had a license as an adoption agency for inter-country adoption services since 2003. Petitioners’ license was renewed under Regulation 31(3) of the Adoption Regulations, 2017 under Section 68(c) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Further, it was stated that the said license remained for a period of 5 years and expired in June, 2018.

When the petitioner applied for the renewal of the license, it was not granted by respondent 2. Hence, the petitioner filed the present petition before this Court seeking an appropriate direction to the respondent authority, to renew its license.

Respondent 2 had submitted that there were alleged irregularities in the adoptions which were facilitated by the Petitioner along with certain non-compliances in submission of the documents such as annual reports, etc. which were required to be submitted in compliance of Regulation 30 and 31(2) of the Adoption Regulations, 2017.

Decision

Bench expressed that considering the petitioner had the license since 2003 and was a recognized adoption agency in Canada. This Court opined that the said non-renewal could not result in permanent disbarment of the petitioner from operating as a recognized adoption agency.

Further, the Court stated that even though the licence was not renewed, the petitioner ought to have an opportunity to apply afresh.

Hence, High Court permitted the petitioner to file a fresh application seeking a licence under the Adoption Regulations, 2017 framed under the scheme of the Juvenile Justice Act. [World View Adoption Assn. v. Union of India, 2021 SCC OnLine Del 196, decided on 22-01-2021]


Advocates for the parties:

For the Petitioners: Ms Neela Gokhale, Ms Harshal Gupta, Ms Shruti Dixit & Mr Kushal Choudhary, Advs.

For the Respondents: Mr Gaurang Kanth, Standing Counsel with Ms Biji Rajesh, Advocate for R-2.

Case BriefsHigh Courts

Patna High Court: In an application challenging the order of rejection of bail passed by Additional Sessions Judge, Ashwani Kumar Singh, J., set it aside enlarging the appellant-accused on bail.

The instant application has been filed by the appellant under Section 101(5) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act) challenging the order dated 24-09-2019 passed in Child Case No. 6 of 219 by the Additional Sessions Judge, Buxar in connection with P.S. Case No. 21 of 2019 registered under Section 376 of the Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The factual background in the present matter is that serious allegations have been placed on the appellant for committing the act of rape on the victim aged 13. The FIR was registered on the basis of the written report submitted by the mother of the victim subsequent to which, the appellant was arrested and produced before the Special Judge (POCSO), Buxar. Further, the statement of the victim was recorded under Section 164 of the Criminal Procedure Code, 1973.

Contradictory to the FIR, the victim made no mention of rape in her statement and spoke of a meeting between the appellant and herself.

Later, a petition was filed by the appellant before the Special Judge, Buxar claiming the on the day of occurrence he was a juvenile. During this period of time, a bail application was filed which was adjourned to different dates. With the bail application still pending, the Special Judge (POCSO), Buxar sent the case to Juvenile Justice Board, Buxar for the examination of his claim of juvenility. The Board determined the appellant’s age and declared him a juvenile vide order dated 02-08-2018. Subsequently, the Board made an assessment of the physical and mental ability of the appellant under Section 15 of the JJ Act and found it fit to transfer the appellant’s case to Children’s Court and accordingly, transferred the entire case record to the court of Special Judge (POCSO), Buxar for the trial of the appellant as an adult.

Later on, the Special Judge (POCSO), Buxar vide order dated 24-09-2019 rejected the bail application of the appellant. Upon careful perusal of the impugned order dated 24-09-2019, this Court observed that the bail application has been rejected primarily due to the serious nature of the offence and the charge-sheet that has been filed against the appellant. The trial court has erred by overlooking the victim’s statement under Section 164 CrPC. Also, undue importance has been given to the inconclusive medical report which only raises the possibility of a sexual act with the victim. The manner in which the alleged crime was committed hasn’t been indicated anywhere. The report of the probation officer seems completely hypothetical and beyond any reasoning. The Court also relied on the judgment in the case of Lalu Kumar v. State of Bihar, 2019 SCC OnLine Pat 1697.

In view of the above, the Court found the impugned order unsustainable and set it aside. In addition to this, the appellant has been released on bail. The appeal has been allowed.

[X9 v. State of Bihar,  2020 SCC OnLine Pat 1665, decided on 15-10-2020]


*The name of the appellant-accused has been withheld as per the statutory provisions prescribed under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015.


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: P.T. Asha, J., addressed a matter in relation to adoption and modification in the birth certificate of a minor in terms of change in the name of the biological father of the child.

Legal status of a biological daughter

Petitioners are the adopted father and biological/natural mother of minor seeking direction from the Court that petitioner 1 be appointed as a father of the minor female child and consequently, the minor child be entitled to the legal status of a biological daughter with all the rights of succession and inheritance in respect of the adopted father and a modified birth certificate of the minor be issued.

Adoption Regulations and the JJ Act

Petitioners have contended that the conditions prescribed under Adoption Regulations and the Juvenile Justice Act have fully been complied with while filing the present petition.

Bench on perusal of the facts and submission in the present matter stated that the parties are all Hindus and therefore bound by the provision of the Hindu Adoption and Maintenance Act, 1956.

In the instant matter, the biological father of the minor child died three years back, and hence proviso to Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 would not be applicable to the case.

Adoption

Court observed that it is well open to the biological mother of the minor child to give her child to adoption and since both petitioner 1 and the petitioner 2 i.e. the biological mother of the child are happily married and living together and the minor has been living with them, there is no impediment to the said prayer of adoption.

 Birth Certificate of the minor cannot be modified

Bench stated that on the date when the birth certificate of the minor was issued, the biological father was alive and it is him who has been described as the father of the minor child in the birth certificate.

Adoption does not sever the relationship of the minor with her biological father. 

Only exception to the above is, when the biological father himself renounces his right as father of the minor and consents for the child to be taken by the adoptive father.

Court added that even in the above-stated cases, only the status of being a biological father does not change, only the status of adoptive father, custody and maintenance of the minor child changes hands.

In the present matter, the biological mother cannot deprive the minor child’s right to have the name of her biological father in her birth certificate.

Registration of the births is governed by the provisions of the Registration of Births and Deaths Act, 1969.

Under what circumstances can a correction or cancellation of the entry in the register of births and deaths be made?

Court stated that only under the following circumstances the birth certificate can be modified:

(a) When the entry is erroneous in form or substance; and

(b) The entry has been fraudulently or improperly made.

Under Section 15 of the Registration of Births and Deaths Act, 1969 it is clear that the original entry cannot be corrected/deleted and the incorporation of the new details can be made only in the margin.

In the present matter, Rule 5 of Tamil Nadu Registration of Births and Deaths Rules, 2000 talks about adoption and prescribes a form. Serial Nos. 7 and 8 relate to the name of the adoptive mother and the adoptive father.

Hence, the petitioner’s request to delete the biological father’s name from the original birth certificate is not legally sustainable since the rules clearly provide for incorporating the name of the adoptive parents separately in column nos. 7 and 8 as adoptive parents and not as natural parents.

Court held that the substitution of the name of petitioner 1 as the biological father of the minor cannot be permitted and taking into consideration the Rule 5 of Tamil Nadu Registration of Births and Death Rules, 2000, Court directed for issuance of a birth certificate as contained in Form 1-A of the Rules by effecting entries in column nos. 6,7,8,9 and 10 and the original birth certificate shall remain unaltered.

In view of the above, the original petition was allowed. [Vivek Narendran, In Re., 2020 SCC OnLine Mad 1758, decided on 20-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: Taking suo motu cognizance of the issue where 35 out of 57 children in a Protection Home at Royapuram, Chennai have been infected with COVID-19 and are hospitalized, the 3-judge bench of L. Nageswara Rao, Krishna Murari and S. Ravindra Bhat, JJ has asked the Health and Family Welfare Department, State of Tamil Nadu and secretary to Social Welfare Department to submit a report giving details of the reasons for the spread of COVID-19 in the said Protection Home.

“The status of the health of children in conflict with law in various protection homes in the State of Tamil Nadu shall be given in the report which shall be submitted by 15.06.2020.”

The Court also annexed a questionnaire along with the order which is to be circulated to the State Governments in order to seek information on the issue at hand. The Juvenile Justices Committees of the High Courts shall also be supplied with the questionnaire which is annexed to this order.

“The Juvenile Justices Committees of the High Courts shall ensure that the State Governments provide the information that is sought for in the questionnaire before 30.6.2020.”

The Court has based the questionnaire on it’s order dated 03.04.2020 wherein, after taking suo motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities.

The matter will next be taken up on 06.07.2020.

[IN RE CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, Suo Motu Writ Petition (C) No.4/2020, order dated 12.06.2020]


Also Read:

COVID-19| SC issues extensive directions to protect children in Protection Homes from spread of coronavirus

Click here to read the Questionnaire.

Case BriefsCOVID 19Supreme Court

Supreme Court: Taking sup motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities.

DIRECTIONS TO CHILD WELFARE COMMITTEES

  • Ensure whether a child or children should be kept in the CCI considering the best interest, health and safety concerns.
  • Special online sittings or video sessions may be called to consider measures that may be taken to prevent children residing in the Children’s Homes, SAAs, and Open Shelters from risk of harm arising out of COVID­ 19.
  • Gatekeeping or preventive measures need to be considered and families counselled to ensure that institutionalization is the last resort.
  • online help desks and support systems for queries to be established at the state level for children and staff in CCIs.
  • violence, including sexual and gender­based violence may be exacerbated in contexts of anxiety and stress produced by lockdown and fear of the disease, CWCs can monitor regularly through video conferencing, WhatsApp and telephonically to ensure prevention of all forms of violence.

DIRECTIONS TO JUVENILE JUSTICE BOARDS AND CHILDREN COURTS

  • measures to be take to prevent children residing in Observation Homes, Special Homes and Places of Safety from risk of harm arising out of COVID­ 19.
  • Steps to be taken to release all children alleged to be in conflict with law on bail, unless there are clear and valid reasons for the application of the proviso to Section 12, JJ Act, 2015
  • Video conferencing or online sittings can be held to prevent contact for speedy disposal of cases.
  • Ensure that counselling services are provided for all children in Observation homes.

DIRECTION TO GOVERNMENTS

  • Develop a system for how to organise trained volunteers who could step in to care for children, when the need arises.
  • Make provisions to ensure that counselling is made available, and that there are monitoring systems in place to prevent violence, abuse, and neglect, including gender­based violence, which may be exacerbated in contexts of stress produced by lockdown.
  • Ensure adequate budgetary allocation is made to meet the costs that are likely to arise for the effective management of the pandemic, and that all bottlenecks and procedural delays ar effectively curbed.
  • Ensure adequate availability of good quality face masks, soap, disinfectants such as bleach, or alcohol­based disinfectants, etc.
  • Ensure availability of adequate food, drinking water, and other necessities such as clean clothes, menstrual hygiene products, etc.

DIRECTIONS TO CCIs

  • The Health Ministry has set up new National Helpline on COVID­19, which are 1075 and 1800­112­545. In case of any queries or clarifications related to Coronavirus pandemic, call on this number. In addition, Childline 1098 continues to be operational.
  • Staff or any other individual found to be exhibiting symptoms of COVID­19 should not be permitted to enter the CCI.
  • enforce regular hand washing with safe water and soap, alcohol rub/hand sanitizer or chlorine solution and, at a minimum, daily disinfection and cleaning of various surfaces including the kitchen and bathrooms. Where adequate water is not available, immediate steps should be taken to ensure it is made available through necessary action, including enhancing budget allocation for the said purpose.
  • Provide appropriate water, sanitation, disinfection, and waste management facilities and follow environmental cleaning and decontamination procedures.

DIRECTIONS FOR CHILDREN UNDER FOSTER AND KINDSHIP CARE

  • Families that are fostering children should receive information about how to prevent COVID­19 as indicated above.
  • Follow up should be made on their health and psychosocial well­being status, and they should be informed of how to do in case of symptoms.

PREVENTIVE MEASURES

  • Spread awareness
  • Take necessary steps to practice, promote and demonstrate positive hygiene behaviours and monitor their uptake
  • Practice social distancing
  • Cleaning and disinfecting rigorously

RESPONSIVE MEASURES

  • Conduct regular screening
  • follow procedures established by the Ministry/Department of Health and Family Welfare, if children or staff or other service providers working in the CCI become unwell.
  • CCI should have a quarantine/segregated section (where possible) & make alternate arrangements where a quarantine facility is not possible.
  • plan ahead with the local health authorities to plan for any emergency that may arise due to the COVID­19

Apart from the above mentioned directions, laid down certain directions to ensure the general wellbeing of children during the Coronavirus spread.

[IN RE CONTAGION OF COVID-19 VIRUS IN CHILDREN PROTECTION HOMES,  2020 SCC OnLine SC 354, order dated 03.04.2020]

Op EdsOP. ED.

Introduction

Children are always cherished everywhere as embodiment of innocence, virtue, sheer beauty perhaps the only closer embodiment of Him. They are future citizens of the world, the true torch-bearer of a nation and entitled to the equitable principles of intergenerational equity, a rightful candidate of the peaceful world, pollution-free ambience and righteous society. Along with other laws, criminal law is often employed to protect innocent children from the attack of the depraved mind. Criminal law also decides on the age group of children for fixing the immunity/liability of the children depending upon their mental maturity. The criminal laws of various countries usually treat children below seven years age as Doli Incapax, who are completely excusable from crime; due to lack of mental maturity or absence of guilty mind — the mens rea. Children above seven and up to 12 are presumed to be innocent of an offence, unless sufficiently mentally mature to understand the nature of the act or omission. These are the provisions (Sections 82 and 83) of the main substantive Criminal Code of the land — the Penal Code, 1860[1]. Procedural criminal law, Criminal Procedure Code, 1973 in Section 360 provides for a separate trial for child offenders with special reformative aim of bringing them back to the mainstream of the society. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter mentioned as “JJ Act”), a special law was enacted to reform criminal justice system for children keeping in view India’s international obligation to the Convention on the Rights of the Child adopted in UN General Assembly in 1989. India ratified it in 1992. In the body of the JJ Act, 2000 under Section 2, the juvenile has been defined as a person who has not completed 18 years of age. Two important terms “juvenile in need of care and protection” and “juvenile in conflict with law” have been coined. Juvenile in conflict with the law means a person who has committed an offence under a criminal statute and is punishable under it. “Juvenile in need of care and protection” means a person who are street children, without any guardian, are neglected, are in danger of being abused by any guardian, terminally ill or abandoned, etc. Juveniles cannot be given the death penalty as per hitherto provision of Section 15 of the JJ Act, 2000; they can be kept under observation by a special official up to a maximum of three years. In other situations, they can be released after admonition by a Juvenile Justice Board and in some cases, if the juvenile is over fourteen years and earning has to pay fine or their guardian has to pay fine.

In 2013, in Delhi the brutal gang rape of a paramedic student “Nirbhaya” happened in a moving bus; where a juvenile was also a member of the ghastly assembly. It is said that he was the cruelest perpetrator and because of his age treated leniently under the scheme of the JJ Act, 2000. And was released after being confined for three years of supervision. This incident created a fear psychosis in the mind of the masses and there was a demand for speedy, ultimate preventive, disutility ? capital punishment. In this emotional backdrop the JJ Amendment Act, 2015 was enacted.[2]

Now three issues can be raised and dealt in the next paragraphs:

  1. Should a juvenile sometimes be tried as an “adult” as per Section 19 of the provision of the JJ Amendment Act, 2015?
  2. Are we aware of the rule/standard dichotomy?
  3. Whether societies’ expectation of capital punishment for a juvenile guilty of a heinous crime shall be met irrespective of the evil consequence to the concept of rule of law in a civilised country like India?

We try to analyse the issues one by one:

In our Constitution under Article 15(3) children are given a special status along with women. The Scheme of JJ Act, 2000 was in consonance with the International Convention on the Rights of the Child passed in the UN General Assembly in 1999. Thus the whole scheme of the JJ Act, 2000 was reformative and the aim is to bring a juvenile to the mainstream of the society as a useful contributor towards the State. While passing the JJ Amendment Act, 2015, it was laid down that the heinous juvenile offender of sixteen to eighteen may be tried as an adult.  Now the question is, what a heinous crime is. Is the benchmark — the quantum of punishment prescribed in substantive Criminal Law Code of IPC or other laws or the Judge’s sense of repulsion to the crime committed or requirement of further prevention of crime based on social investigation report of a juvenile?  We know that it is not possible to efficiently measure the societies’ reactions in a cost-effective way. If a juvenile destroys authority to adopt or adoption deed under Section 477 of the Penal Code or defame a State official under Section 499 IPC, based on the quantum of punishment — are these offences meritorious enough to be treated as heinous as an adult offender?

Then we can also pose a rider when a juvenile is termed as a heinous offender from a perspective of a reasonable common man? If the answer is always from the retributive instinct of vengeance, then the solution is capital punishment for a juvenile. Reflecting on it, it is irrational itself, because practically a child is born innocent and he picks the deviant values from the peers, the society where he lives. Crime sometimes a learned process and society is also responsible for it. Deviant behaviour of juveniles often results from lack of self-esteem, education, economic, social and political status, feeling of alienation, and insensitive treatment by adults and a result of discouraging environment.[3]

Society should try to reform a child but if there is hardly a chance of reform. Only in rare cases, he is a threat to society and he may be condemned to life imprisonment with hard labour with limited chance of commutation and remission. This decision also shall not hurt the society economically, as the juvenile shall contribute positively through hard labour for the community. Juveniles cannot be detained under Preventive Detention Acts as their detention is only with the aim of there formative relocation to the society as per Section 1(4)(i) of the JJ Amendment Act, 2015.

The rule/standard dichotomy always creates a problem for rule-based society.[4] As for example, the rule of a certain age for ascertaining a minority shall leave an escape route to the sufficiently mature minor, a prospective juvenile. We still believe exception proves the rule and to achieve justice as it protects — a majority of the minor population who are not sufficiently mature enough. Even the law recognises this mental immaturity and minors’ contract are treated as void, incapable of enforcement as declared in Privy Council ruling in Mohori Bibee v. Dharmodas Ghose[5] (1903, Privy Council). In property laws unborn person, until they reach legal maturity are not full-grown owner, always under the lawful control of a guardian.

If we opt for a standard element in law like “good faith”, “mala fide”, “reasonableness” these are open to evil of multitude of subjective conjectures.

The solution to these problems of dichotomy is perhaps promoting the flexible rules with scope of making sufficient discretion, the limited exceptions with preventive screening like life imprisonment with hard labour — which is nothing but disutility or preventive measure.

There is an economic analysis of the criminal law that, human being are rational choice maker, thus always calculate profit and loss of any act or omission. Thus criminal law imposes enough cost or disutility in the form of punishment for the volitional act of rational human being. Universal Declaration of Human Rights in Article 1, explains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” If this declaration is indeed true, then separate convention for children is not required at all. Children are special constitutional class, who most of the time a victim of the situation, which determines their fate. They are hardly their own master in the sense that they follow intentionalist discourse. Their choice is not reasoned free and not liable to be dealt with harsh disutility.

One can argue that there are enough safeguards under Section 3 of the JJ Amendment Act, 2015 as for example, it is laid down that, the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the fundamental principles, namely:

  1. Principle of presumption of innocence, (up to the age of eighteen years from criminal act or omission).
  2. Principle of dignity and worth, (all human being are equal in worth and dignity).
  3. Principle of participation, (children shall be heard in proceeding and due regard shall be given depending upon the mental maturity of the children).
  4. Principle of best interest, (children’s best interest shall be the only consideration for the growth of the child’s full potential).
  5. Principle of family responsibility, (the primary responsibility for the care and protection of the children shall be the biological family, or adoptive or foster family).
  6. Principle of safety, (children in contact with care system shall not be maltreated or abused and it has to be seen that he is not abused even after).
  7. Positive measures, (the resources of the family and community shall be utilised in such a way that in an encouraging environment there shall be all-round development of the child and the requirement of the intervention by the Act is lessened).
  8. Principles of non-stigmatising semantic, (adversarial and accusatory words are not to be used against the child in any proceeding).
  9. Principles of non-waiver of right, (any rights or fundamental rights of children cannot be waived even by non-exercise by the children, Board or any authority).
  10. Principle of equality and non-discrimination, (there shall not be discrimination based on sex, caste, ethnicity, place of birth, access to resource and equality of the opportunity).
  11. Principle to right to privacy and confidentiality, (throughout the judicial process children’s privacy and confidentiality shall be protected).
  12. Principle of institutionalisation as a measure, of the last record, (a child shall be taken under institutionalised care after reasonable enquiry).
  13. Principle of repatriation and restoration, (any child under the scheme of the JJ Act shall be reunited with the family at the earliest and given the same socio-economic status to him before he came under the Act and unless it is not against his interest).
  14. Principle of a fresh start, (all the past records of the juvenile under the Act shall be erased unless there is a demand of special circumstance).
  15. Principle of diversion, (children in conflict with the law shall be dealt with other than judicial proceeding if it is not against the interest of the society).
  16. Principles of natural justice, (in a judicial proceeding concerning children fair hearing shall be given, rule against bias shall be applied by all persons and bodies).

But these principles are mere magic words[6], explained as — prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage. For children because as like other powerless groups hardly they have any meaningful impact on the powerful State officials like judiciary, police or probation officers. We can easily imagine even a juvenile of eighteen years age may not make a beneficial rational choice for meaningful consultation from a lawyer as enshrined under Article 22(1) of the Constitution, simply because of his mental immaturity. Neither he is able to prepare his defence if he gets to know the ground of arrest or detention. These principles are like directive principles of the Indian Constitution creating moral values for the State officials. The fair trial principle simply gets vitiated if a juvenile is treated as an adult who often lacking mental maturity. Juveniles usually cannot assert their rights properly.

Criminal Law (Amendment) Ordinance, 2018[7] provides the death penalty even for juveniles in some cases when gang rape is committed against the person of a minor below twelve years of age. We know in Bachan Singh v. State of Punjab[8], the Supreme Court has laid down that life imprisonment is the rule, death penalty as an exception. Thus Judges in most cases shall be reluctant to impose death penalty and needs to cite a special reason. Moreover, the death penalty is not thought to be a deterrent for crimes committed under sudden passion or grave provocation, or motivated offender. Rape and murder shall not decrease by passing the death penalty and offenders shall try to obliterate evidence. The conviction rate of crimes in India is hovering around (46.90)% in 2015, which is satisfactory compared to the previous era and thus we can stress on reformatory institutional care based approach for children[9].

Influence of the Mental Health Act, 2017 on the Juveniles

This Act was enacted in India, inconsonance with India’s international obligation to the Convention on the Rights of Persons with Disabilities held in United Nations Headquarter in 2006. This Act replaces the previous Mental Health Act, 1987. In this Act, minor has been defined as who have not completed 18 years. The definition of mental illness has been given as, (s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Unfortunately, in India legal insanity described in Section 84 of the Penal Code still follows the archaic M’Nanghten rules. Here a person is criminally liable if his cognitive faculty is working, that is, he knows the nature of his act and it is wrong or contrary to law. He will not get any “diminished responsibility”[10] relief for mood swings, impaired behaviour, impaired mental or physical condition unlike in England. In India, there are about 3000 psychiatrists for 120 crore people. Juvenile with mental illness often indulges in crime. State can detain their liberty, and keep them in Government and private institutions. But the Act is silent about the expenditure to be incurred in private institutions. Juveniles with mental illness cannot get admission to hospitals immediately like other patients. The doctor has to examine and verify that his illness requires admission and his decision is coming out of free will. This examination period is for 7 days which can expose the juvenile to danger. Despite statutory declaration mental persons are treated in India with cruelty due to lack of ignorance of the general population. This Act imposes a heavy burden on families to give care to the mentally ill persons, like admitting them in health care institutions. This caused resentment in the mind of mentally ill persons towards the family members. Crime in many situations is result of mental illness which can be cured with timely psychiatric intervention. The Mental Health Act, 2007 provisions are declaring noble human rights, but practically there are a lot of gaps in the Act.

Conclusion

Legislators are not immune to the emotional pressure created by the people. But they are armed with resources, like skilled criminologists, Judges, lawyers, and police force. They can reflect over any policy they make and its impact in the future. Rationality is the benchmark of the rule of law in a democratic country like India.  One can suggest that, there cannot be any deviance from the concept of the “categorical imperative” of Immanuel Kant, even when the majority do not want it. According to Kant, human beings occupy a special place in creation, and morality can be summed up as an imperative or ultimate commandment of reason, from which all duties and obligations derive. He defined an imperative as any proposition declaring a certain action or inaction to be necessary. “Act only according to that maxim whereby you can, at the same time will that it should become a universal law.” Thus barring a few, mere good is subjective but right is always desired as per community legal and moral standard. The children turned juveniles in most of the situations are more amenable to reform. Making juveniles criminally liable as adults without any rationality; expose the society to graver consequences, dogmatic insensitiveness.


 †  Assistant Professor, SLS, Pune, e-mail: bibhabasumisra@gmail.com.

[1]  K.D. Gaur, Textbook on the Indian Penal Code, Fifth Edition, Universal Law Publishing Co., 2014 at p. 117.

[2]  <http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF> visited on 5-10-2018.

[3]  Larry J. Siegel, Criminology: The Core Fourth Edition, Social Process Theories  p.173.

[4]  Lloyd’s  Introduction to Jurisprudence, Seventh Edition, Sweet and Maxwell p.1041.

[5]  1903 SCC OnLine PC 4.

[6]  Hagerstrom’s concept of magic in legal or in language: Lloyd’s Introduction to Jurisprudence at p. 858. He explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage.

[7]  <www.prsindia.org/ordinances/The20%criminal%20> visited on 5-10-2018.

[8]  Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[9]  Source: <www.ceicdata.com>.

[10]  Diminished responsibility in England is a partial defence under S. 2(2) of the Homicide Act, 1957.

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed a petition seeking to quash an order of the Sessions court on the ground that the petitioner was juvenile and protected by the Juvenile Justice (Care and Protection of Children) Act, 2015.

The petitioner along with other persons was accused of forming an unlawful assembly and damaging the informant’s property. A case was instituted under Sections 147,148,149,341,323,324 and 307 of the Penal Code, 1860 (‘IPC’) and Section 27 of the Arms Act. 1959. Petitioner’s case was considered by the Juvenile Justice Board, West Champaran Bettiah. The Board ordered the petitioner to go home in the care of his father. The petitioner, being aggrieved by the order appealed before the Sessions Judge. The Sessions Judge by an order dated 11-02-2016 convicted him under Sections 149 and 307, 149 of the IPC.

Sanjay Kumar, counsel representing the petitioner submitted that on the date of occurrence of an event, the petitioner was 15 years old, the Board had to conclude enquiry without holding anything against the petitioner. He was a member of an unlawful assembly but had no role in any overt act. There was no delinquency record against the petitioner and no complainants were lodged regarding his behaviour. The petitioner was required to be released and the appellate court had gone beyond its jurisdiction in convicting him. The conviction was totally uncalled for as the informant or the State had not filed any appeal.

Bhanu Pratap Singh for the State contended that the order of the board was sufficient and the order passed by Sessions judge regarding petitioner’s guilt is unsustainable as no appeal was preferred by the prosecution.

The Court upon perusal of the facts and circumstances held that the Sessions Judge by ordering conviction has misdirected himself as it was not an appeal by State or the informant and juvenility of the petitioner should have been considered by the court. The court quashed the order and allowed the appeal on two grounds, recording of guilt was found to be unjustified upon appraisal of evidence, and secondly, the petitioner is protected by virtue of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015. [Md. Isteyak v. State of Bihar, 2019 SCC OnLine Pat 1926, decided on 08-11-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Atul Sreedharan, J., against the order passed by Special Judge (Atrocities), District Damoh where order passed by Principal Magistrate, Juvenile Justice Board, District Damoh was affirmed.

Petitioner submitted that the order was passed by the Juvenile Justice Board whereby preliminary assessment of petitioner was done and direction was given that he should be tried as an adult due to the nature of the crime committed. Petitioner was charged for the murder of a member of a depressed class. He had submitted that the assessment done above was to be concluded within a period of three months mandatory from the date of the first production of the child before the Board in accordance with the provision of Section 14(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 but this assessment took almost a year. Whereas the respondent contended the provision to be procedural with no consequence of its violation provided in the Act thus, cannot be considered a mandatory provision.

High Court was of the view that since the delay was adequately explained and no prejudice was caused to petitioner, there was no need for this Court to interpret the provision to be mandatory under all circumstances. Therefore, this petition was dismissed. [Bhola v. State of M.P., 2019 SCC OnLine MP 521, dated 01-04-2019]

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]

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]