Sending minor girls to protection homes in elopement cases not "illegal confinement", cannot be challenged by habeas corpus plea: Patna HC

The Patna High Court recently ruled that sending a minor girl to a state protection home in cases of elopement, particularly when the girl refuses to go with her parents or family, is not illegal confinement..The Bench of Justices Ashwani Kumar Singh, Ashutosh Kumar and Birendra Kumar concluded,.“… 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.”Patna High Court.The Court went on to elaborate that the same cannot be challenged by way of a habeas corpus petition either, especially when the girl is ordered to be sent to such a protection home on the orders of a competent court..“… the sole object of writ of habeas corpus is to secure the liberty and the 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.”Patna High Court.The Court explained further that,.“… sending a girl to a Protection Home/Nari Niketan can never be equated with any punishment ... 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.”.The Court added that while It may be argued that the conditions of such protection homes are miserable, it is the duty of the State to maintain these institutions properly. In any case, the Bench ruled that,.“The bad condition of Protection Homes/Nari Niketan will not dwarf/belittle the object and purpose behind establishing such institutions.”Patna High Court.In passing the ruling, the Bench also expressly overruled the contrary ruling of a Division Bench of the Court in the case of Sahebi Khatoon @ Sahebi vs. State of Bihar & Ors. as bad in law. .The three-judge Bench was dealing with a habeas corpus petition filed by the father of girl around 16 years of age, who had eloped against her parents wishes. .On queries made by a trial Court, the girl informed that she wished to go with her husband and his family, and not her parents. The Magistrate, proceeded to order that she stay in a Short Stay home until she attained 18 years of age..This prompted the filing of a habeas corpus petition before the High Court, seeking the release of the girl which was argued as being illegal, in view of the High Court’s earlier ruling in Sahebi Khatoon..In the Sahebi Khatoon case, another Division Bench in 2010 had concluded that where the girl involved in an elopement is “practically major” on being 16-17 years of age, then she can be treated as a major person. As such, she should be allowed to go with the person/family of her choice.."The girl should be treated as major if she is assessed to be of an age in between 16 to 17 years as per the medical report and also as per own assessment. In such cases, instead of sending such girls to Remand Home or after Care Home, they should be released to go with the people of their choice. This order should be circulated to all Chief Judicial Magistrate and all Judicial Magistrates in the State of Bihar for proper compliance."Sahebi Khatoon's case (2010, now overruled).In line with this view, the High Court had also issued an advisory to be circulated to all Judicial Magistrates that in such cases, the such women ought to be released to go with the people of their choice. The Division Bench in that case had relied on the Supreme Court’s ruling in Jaya Mala Vrs. Home Secretary, Govt. of Jammu and Kashmir..In the instant case, however, doubts were expressed over the correctness of the Sahebi Khatoon ruling, leading to a reference of the matter to a three-judge Bench of the Court..In the course of submissions, the state also pointed all sexual intercourse between a girl below 18 years now amounts to rape, after the Supreme Court struck down the exception that earlier existed for “married” girls between 15-18 years in the case of Independent Thought vs. Union of India & Anr..In this backdrop, the three-judge Bench found that the questions before the Court included:Applicability of Supreme Court’s judgment in the matter of Jaya Mala in cases of elopement.Role of courts as parens patriae.Whether release of a minor girl child to the husband would violate the ratio as pronounced by the Supreme Court in the matter of Independent Thought?.The High Court ultimately found that the Supreme Court’s verdict in Jaya Mala Vrs. Home Secretary, Govt. of Jammu and Kashmir cannot be applied to cases involving the elopement of juvenile persons, the same way it was applied for a juvenile boy accused of crime in the earlier case..Rather, the Court would have to decide the matter keeping in view its role as a guardian under the principle of parens patriae. The Bench observed, .“… keeping in view the role of the Court as parens patriae, it is expected from the court that whatever decision it might take as to the assessment of the age of the victim, it needs to serve the best interests of the girl. Before reaching any conclusion, the court must consider the detrimental effects on a girl child, not only in terms of her physical or mental health but also in terms of her nutrition, education and her general well being.”.From this standpoint, the Court found that the earlier decision to treat 16-17 year old women as adults in elopement cases was erroneous. The Bench held,.“… coming to the case of Sahebi Khatoon (supra) wherein direction has been issued that if any girl has been assessed between 16 and 17 years, she should be treated as major, it would not only encourage a girl child at the age of 16- 17 to get married but also put her in the life threatening risks.“Patna High Court.The Court added that after the Independent Thought case, “the boy with whom she would be married would be liable to be prosecuted for the offence of rape as Exception (2) to Section 375 of the IPC has been read down prospectively.”.In other words, “the law as it stands now is that sexual intercourse or sexual act by a man with his own wife, the wife being age of 15, 16, or 17 would constitute an offence of rape under Section 375 of the IPC.”.The Court observed,.“Practically, it has been observed that in cases of elopement, a girl is always willing to go to her husband and not to her parents. However, after the judgment of Independent Thought (supra), the courts cannot permit the minor girl to stay with her husband even if she is 16-17 old.”Patna High Court.The three-judge Bench proceeded to dismiss the habeas corpus plea filed in the matter, observing that,.“… the court cannot pass order 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.”Patna High Court.[Read the Judgment]