It was held by a three-judge bench of the Patna High Court that sending minor girls to Nari Niketan in cases of elopement cannot be considered as confinement and thus no remedy can be sought under the writ of habeas corpus. It was held in the present case that simply being confined in a Protection home cannot be considered as detention and it can most certainly not invoke the writ of habeas corpus.
In the said case, the father of the petitioner, i.e. the minor girl, has alleged that his daughter aged 16 years did not return home after she left to go to the market. After making certain inquiries, it was found that she had eloped with a co-villager with whom she was having an affair. It was found that she had produced a fake matriculation certificate as her proof of age before the registrar of marriage. The petitioner had also produced a fake aadhar card which recorded her date of birth as 01.01.1998 whereas, in her original birth certificate, her date of birth was recorded as 02.01.2002.
Subsequently, an application was filed under Section 164 of CrPC to record the statement of the petitioner. The investigation officer filed another application to determine the age of the girl through medical examination following which a medical examination was conducted and the age was assessed between 16-17 years. Post the examination, the Additional Chief Judicial Magistrate directed the investigating officer to send the girl to an aftercare home until she attained the age of majority.
The petitioner filed a writ seeking release from the aftercare home relying on the decision in the case of Sahebi Khatoon wherein the court had decided that girls should be released to go with the person of their choice instead of being sent to the aftercare home. In the said case, it was further directed to circulate this order to all magistrates and Chief Judicial Magistrates.
The Bench looked into questions about Section 483 of CrPC to direct the magistrates and CJM to issue similar order issued in the Sahebi Khatoon case. The court also examined whether Section 94 of the Juvenile Justice Act, 2015 was a good parameter for the determination of the age of the petitioner. The bench also looked into the principle of parents patriae that allows the state to become the guardian for children who are unable to care for themselves.
Observation and Order
The court held that in the present case a writ of habeas corpus is not applicable as the order has been passed by a competent authority. In regards to whether the division bench could issue a general order under Section 483 of CrPc to release minor girls and allow them to marry the person of their choice, the court held that as per the Constitution of India, such an order cannot be issued. The bench also held that the age of minors should be determined the same way the age of the accused is determined, as per section 94 of the Juvenile Justice Act, 2015. The principle of parents patriae was examined and it was held that the court must make decisions that are in the best interest of the child.
The court dismissed the writ petition stating that sending minor girls to Nari Niketan does not amount to illegal confinement.
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