In case of elopement, sending minor girls to Nari Niketan is not illegal confinement

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sending minor girls to nari niketan

The Patna High Court observed:

“Another important aspect which has arisen in the instant case is the issue of maintainability of a writ of habeas corpus in cases of sending girls to Protection Home/Nari-Niketan. Undisputedly, the sole object of writ of habeas corpus is to secure the liberty and freedom of any person and to afford security against the illegal detention. Sending a girl to a Protection Home/Nari Niketan cannot be treated as detention or anything akin to remand as applicable in criminal laws. 

In criminal law, the concept of detention is attached with a sort of punishment or it can be seen to protect the society at large from any person. But sending a girl to a Protection Home/Nari Niketan can never be equated with any punishment or to protect the society at large from such a girl. If it were not so, then every child in the custody of his/her parents would seek his/her liberty and file a writ of habeas corpus. 

We need to appreciate the fact that the role of court in cases of a minor child is that of a guardian. Due to their tender age, a child cannot foresee his/her ‘best interests’. However, being in the capacity of parens patriae, the court is duty bound to ensure the well being of a child ensuring his/her ‘best interests’. 

At times, it may be argued that the condition of such Protection Homes/Nari Niketans is miserable, but, it is the duty of the State to maintain these institutions properly. The bad condition of Protection Homes/Nari Niketan will not dwarf/belittle the object and purpose behind establishing such institutions. 

To conclude, we are of the opinion that the court cannot pass orders against the well being of a child or against his/her interests. Being merely confined within the four walls of a Protection Home cannot be termed as detention for the purpose of writ of habeas corpus. No doubt, the court’s order may be termed as improper in that particular case, but that  does not invest the order with malafides or illegality. If such orders of the court are improper, it may be corrected by invoking statutory provisions, but by no means, a writ of habeas corpus can be justified in such cases. 

Keeping in mind the discussions made hereinabove and our conclusions in respect of the issues referred to this Bench for determination by the Division Bench, we hold that the general direction issued by the Division Bench in Sahebi Khatoon (Supra) to all the Magistrates of the subordinate courts throughout the State of Bihar to treat the girl as major if she is assessed to be of the age in between 16-17 years as per the medical report and also as per own assessment and in such cases instead of sending such girls to Remand Home or After-Care Home they should be permitted to go with the people of their choice is bad in law. We further hold that in cases of elopement if a minor girl is sent to Protection Home/After-Care Home/Remand Home/Nari Niketan by a judicial order passed by a court of competent jurisdiction, the same cannot be treated to be illegal confinement giving rise to a remedy under the writ of habeas corpus. The contrary view taken by the Division Bench in Sahebi Khatoon (Supra) is also expressly overruled. Petition is dismissed.