Orders Passed By Judicial Magistrate/Child Welfare Committee Can Not Be Challenged/Set Aside By Writ Of Habeas Corpus: Allahabad High Court

GENERAL OVERVIEW

• This judgement is in relation to the case: KM Rachna & Another v. State of Uttar Pradesh & 4 ors.
• The issue the judges had to tackle were: "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?"
• Answering the issue, Allahabad High Court ruled that a judgement passed by the Judicial Magistrate, or the Child Welfare Committee cannot be challenged, or set aside by a writ of habeas corpus.
• The Court will always consider the wishes and desires of a minor girl, keeping her welfare in mind.

FURTHER DETAILS

• 17 year old Anchal's mother filed an FIR, alleging that her daughter (Anchal) had left the house on 15th of February, 2020 with her friend named Arjun and his family. She was found on 04th March, 2020,and she gave a statement where she mentioned that she left the house due to her frustration of being beaten up by her mother, and that she left the house willfully. The Child Welfare Committee ordered to allow this 17 year old to stay at a Children Home (Girls), and her mother filed a writ petition, aggrieved by the order.
• A Bench of Justices Siddhartha Varma, Justice Mahesh Chandra Tripathi and Justice Sanjay Yadav were faced with the reference in a habeas corpus petition, which sought directions on Superintendent of Children Home (Girl) to release the minor girl namely Anchal aged 17 years, who was allegedly illegally detained in the Children Home. Along with the question of whether a writ of habeas corpus can challenge the judicial magistrate's orders, there were two other issues that the Bench had to answer:

1. "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?"
2. "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?"

CURRENT SCENARIO

"Her interest is paramount and before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in mind. The wish of minor and the wish/desire of a 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." The bench stated, after observing that the minor girl did not wish to return to her parents.

The Court went on to conclude its observations by answering the three issues put forth:

• "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 as an illegal detention."
• "Under the Juvenile Justice Act, the welfare and safety of a 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)."

WHAT DO YOU THINK OF THIS RULING? DO YOU BELIEVE THE COURT DID THE RIGHT THING BY THE CHILD? LET US KNOW YOUR VIEWS IN THE COMMENTS BELOW!

Click here to download the original copy of the judgement