2021 Supreme(All) 374

IN THE HIGH COURT OF ALLAHABAD
SANJAY YADAV, MAHESH CHANDRA TRIPATHI, SIDDHARTHA VARMA, JJ.
Km. Rachna and Another – Petitioners
Versus
State of U.P. and Others – Respondents
Habeas Corpus Writ Petition No. 362 of 2020
Decided On : 08-03-2021

Point of Law: Detention – Child Welfare Committee - 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 is paramount and before proceeding to pass order for custody of minor, welfare of minor has to be kept in mind. Wish of minor and wish/desire of girl can always be considered by Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Headnote:

Hindu Marriage Act, 1955 - Sections 5(iii), 11, 12 and 18 - Child Marriage Restraint Act, 1929 – Juvenile Justice (Care and Protection of Children) Act 2015 - Section 27 and 29 - Criminal Procedure Code, 1973 - Section 161 and 164 - Indian Penal Code, 1860 - Sections 363 and 366 - Habeas Corpus Writ - Bal Kalyan Samiti/Child Welfare Committee - Voidable marriages - Seeking a writ of habeas corpus, commanding 4th respondent/Superintendent, Children Home (Girl), District Saharanpur to release corpus/2nd petitioner who has been illegally detained in the Children Home (Girl) District Saharanpur - 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 Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home - 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 - 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 Board/Child Welfare Committee and as such, 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?”

Finding of the court: It is evident that a writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus – 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 - 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 an illegal detention - 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).

Result: Order accordingly