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The Allahabad High Court recently dismissed a writ petition challenging an order passed by Judge, Child Welfare Committee (CWC) to keep the detenue in Government Women's Asylum as she had refused to go to her parents’ home.

The detenue/alleged victim (petitioner no. 1 Vandana) had filed the present writ petition through her husband (petitioner no.2 Vivek) against whom F.I.R. was lodged on 24.05.2019 which was registered, under Sections 363, 366, 120B I.P.C. and Section 7/8 of P.O.C.S.O. Act, 2012.

It must be noted that, as per the statement of the detenue recorded on 23.12.2020 under Section 164 Cr.P.C. she had stated her age to be 17 years. As per F.I.R. version the age of the detenue is 16 years and 2 months. Later, the detenue was sent in the custody of Superintendent of Government Women's Asylum Khuldabad, District-Prayagraj by order dated 25.12.2020 passed by Judge, Child Welfare Committee, Fatehpur.

As per school leaving certificate of the detenue, her date of birth is 02.04.2004, thus a minor.

The Division Bench of Justice Bachchoo Lal and Justice Shamim Ahmed while dismissing the writ petition observed that,

“Once the detenue has been found to be a child as defined by Section 2(12) of the J.J. Act and allegedly, a victim of a crime, she would fall in the category of "child in need of care and protection" in view of clauses (iii), (viii) and (xii) of sub-Section (14) of Section 2 of the J.J. Act. Hence, the order passed by the Child Welfare Committee placing the minor child in a Children Protection Home would be within its powers confers under Section 37 of the J.J. Act.”

The petitioners had urged to the Bench to, “Issue a writ, order or direction in the nature of habeas corpus commanding and directing the respondents/Superintendent of Government Women's Asylum Khuldabad, District - Prayagraj to produce the detenue-Vandana @ Bandana Saini before this Hon'ble Court and to set free of detenue on her own sweet will and wishes.”

The Learned counsel for the petitioners submitted that in the medical report, “the age of the victim/detenue has been opined about 19 years. As per the medical report, at the time of alleged incident, the victim/detenue was major.”

He further added that, the victim/detenue has solemnized her marriage with Vivek (petitioner 2) on 17.5.2019 in a Temple at Gujarat and she in her statement recorded u/s 164 Cr.P.C. has not made any allegation against him. Aslo, that in school leaving certificate, her date of birth has wrongly been shown as 02.04.2004 but the real fact is that at the time of the alleged incident, the victim/detenue was major.

On the contrary the A.G.A. submitted that, “the victim/detenue is a child below the age of 18 years as in her school leaving certificate of Class 8th, the date of birth of victim/detenue has been shown as 02.04.2004, copy of the same has been filed as Annexure-4 to the writ petition.”

He further asserted that, “in her own statement recorded u/s 164 Cr.P.C., the detenue has stated her age to be 17 years. Thus, she is minor. Therefore, there is no illegality in the order dated 25.12.2020.”

“The order passed by the CWC is a judicial order,which has not been challenged in the present writ petition and even against the said order remedy of appeal lies under Section 101 of Juvenile Justice (Care and Protection of Children) Act, 2015,” asserted AGA

Taking into account the factual matrix of present case the Bench made the following observations with respect to JJ Act, 2015:

• Section 94(2) of the Juvenile Justice (Care and Protection), 2015 provides for presumption and determination of age and therefore the Child Welfare Committee or the Board has reasonable grounds for doubt as to whether the person brought before it, is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence -

1. the date of birth certificate from school, or matriculation or equivalent certificate from the concerned examination Board, if available;
2. or the birth certificate given by a corporation or a municipal authority or a panchayat;
3. or birth certificate as aforementioned, the age shall be determined by an ossification test;
4. any other latest medical age determination test conducted on the orders of the Committee or the Board.

• The "juvenile" has been defined in Section 2(35) of the J.J. Act to mean a child below the age of eighteen years. The word "child" has been defined in Section 2(12) of the J.J. Act to mean a person who has not completed eighteen years of age. The phrase "child in conflict with law" has been defined under Section 2(13) of the J.J. Act to mean a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. Section 2(14) of the J.J. Act defines the phrase "child in need of care and protection"
• Section 37 of J.J. Act empowers the Child Welfare Committee that on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, it 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 following orders as provided in clauses (a) to (h) of Sub-Section (1) of Section 37.
• Section 37(1)(c) of the J.J. Act empowers the Child Welfare Committee to place a child in Children's Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child.

The Bench observed that,

“The order dated 25.12.2020 passed by the Child Welfare Committee is in exercise of powers under Section 37 of the J.J. Act. Under the circumstances, when undisputedly detenue-petitioner is a juvenile within the meaning of Section 2(35) and is in need of care and protection within the meaning of Section 2(14), the order passed by the Child Welfare Committee under Section 37 is in exercise of powers under the J.J. Act, cannot be said to suffer from any illegality.”

The Bench stated that, it would be relevant to keep in mind as to what Hon'ble Supreme Court had consistently observed and that the principles applicable for determining the age of "juvenile in conflict with law" are to be applied for determining the age of child victim vide Jarnail Singh Vs. State of Haryana , Mahadeo Vs. State of Maharashtra , State of M.P. Vs. Anoop Singh and Independent Thought v. Union of India

The Bench thus dismissed the writ petition and noted that,

“For all the reasons stated above, the action of the respondent Nos.1 to 5 is neither without jurisdiction nor illegal nor perverse, keeping in mind the provisions of the J.J. Act, 2015. Therefore, the detention of the detenue in Government Women's Asylum Khuldabad, District - Prayagraj cannot be said to be illegal so as to warrant issuance of a writ of habeas corpus. If the petitioner is aggrieved by the order dated 25.12.2020 passed by Judge, Child Welfare Committee, Fatehpur, she is at liberty to take recourse to the remedy of an appeal provided under Section 101 of the J. J. Act, 2015.”

[Case title - Vandana @ Bandana Saini And Another v State Of U.P. And 5 Others]