# Smt. Archana & Anr v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-05
- **Case number:** Habeas Corpus Writ Petition No. 808 of 2020
- **Bench:** Surya Prakash Kesarwani, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-archana-anr-v-state-of-u-p-ors-46787
- **Pages:** 8

## Headnote

A. Constitution of India, 1950-Article 226 -
Indian
Penal
Code,
1860-Section
363,366,376 & Juvenile Justice (Care and
Protection),2015-Section 94(2), 14, 37accused filed petition stating that the
custody of the corpus in State Women
Welfare Society is illegal-while the corpus
in her statement u/s 164 stated that her
age to be 17 years, the same is in medical
report-hence, the accused has no right to
ask for the custody as she would fall in the
category of "child in need of care and
protection" u/s 2(12) and 14(2) of J.J.
Act-Hence, the order passed by the Child
Welfare Committee placing in a protection
Home would be within its power confers
u/s 37 of the J.J. Act-detention of the
corpus can not be said to be illegal so as
to warrant issuance of a writ of habeas
corpus-the writ is not maintainable.(Para
3 to 17)

B. A cursory reading of the JJ Act gives a
clear indication that a girl child who is in
imminent risk of marriage before attaining
the age of 18 years of age is a child in need
of care and protection u/s 2(14)(xii) of the
Act. If this provision is ignored or given a go
by, it would put the girl child in a worse off
situation because after marriage she could
be subjected to aggravated penetrative
sexual assault for which she might not be
physically,
mentally
or
psychologically
ready.(Para 13)

The petition is dismissed. (E-5)

List of Cases cited:

## Text

2 All. Smt. Archana & Anr. Vs. State of U.P. & Ors.
71
agency of the Police. Smt. Preeti Rai will
remain available at Ghaziabad to receive
the minor in her care and custody, in
accordance with these directions. The
father,
Prashant
Sharma
shall
have
visitation
rights
in
terms
directed
hereinabove with corresponding obligations
upon Smt. Preeti Rai to facilitate the
visitation.

57. Let this order be communicated to
the Chief Judicial Magistrate, Ghaziabad,
by the Joint Registrar (Compliance), within
next 24 hours.
----------
(2021)02ILR A71
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 808 of 2020

Smt. Archana & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ananad Kumar Tiwari

Counsel for the Respondents:
A.G.A.

A. Constitution of India, 1950-Article 226 -
Indian
Penal
Code,
1860-Section
363,366,376 & Juvenile Justice (Care and
Protection),2015-Section 94(2), 14, 37accused filed petition stating that the
custody of the corpus in State Women
Welfare Society is illegal-while the corpus
in her statement u/s 164 stated that her
age to be 17 years, the same is in medical
report-hence, the accused has no right to
ask for the custody as she would fall in the
category of "child in need of care and
protection" u/s 2(12) and 14(2) of J.J.
Act-Hence, the order passed by the Child
Welfare Committee placing in a protection
Home would be within its power confers
u/s 37 of the J.J. Act-detention of the
corpus can not be said to be illegal so as
to warrant issuance of a writ of habeas
corpus-the writ is not maintainable.(Para
3 to 17)

B. A cursory reading of the JJ Act gives a
clear indication that a girl child who is in
imminent risk of marriage before attaining
the age of 18 years of age is a child in need
of care and protection u/s 2(14)(xii) of the
Act. If this provision is ignored or given a go
by, it would put the girl child in a worse off
situation because after marriage she could
be subjected to aggravated penetrative
sexual assault for which she might not be
physically,
mentally
or
psychologically
ready.(Para 13)

The petition is dismissed. (E-5)

List of Cases cited:

1. Jarnail Singh Vs St. of Har.,(2013) 7 SCC 263

2. Mahadeo Vs St of Mah.(2013) 14 SCC 637

3. St. of M.P. Vs Anoop Singh,(2015) 7 SCC 773

4. Independent Thought Vs U.O.I.,(2017) 10
SCC 800

(Delivered by Hon'ble Surya Prakash Kesarwani, J.
&
Hon'ble Shamim Ahmed, J.)

1. Heard Sri Anand Kumar Tiwari,
learned counsel for the petitioners and Sri
Patanjali Mishra, learned A.G.A. for the
respondents.

2. This Habeas Corpus writ petition
has been filed by the petitioner no.2 on
behalf of petitioner no.1 for following
relief:-
72 INDIAN LAW REPORTS ALLAHABAD SERIES

"i.issue a writ, order or direction in
the nature of certiorari quashing the order
dated 3.9.2020(Annexure No.7 to the writ
petition) passed by the learned Bal Kalyan
Samiti, district Bareilly in Case Crime No.39
of 2020, under Sections 363, 366, 376 I.P.C.
and Section 4 of the Protection of Children
from Sexual Offences Act, 2012, Police
Station Kyolariya, District Bareilly;

ii. issue a writ, order or direction in
the nature of Habeas Corpus commanding
the respondents to produce petitioner no.1
before this Hon'ble Court and to set her at
liberty."

3. Briefly the facts of the present case
are that F.I.R. dated 05.03.2020 being Case
Crime No.39 of 2020 under Sections 363,
366 I.P.C. showing the date of incident as
28.02.2020
was
registered
at
P.S.
Kyolariya, District Bareilly at the instance
of mother of the petitioner no.1. As per
F.I.R. version age of the petitioner no.1 is
under 16 years. As per educational
certificate, the date of birth of the petitioner
No.1 is 05.11.2003 and thus, she is aged
about 17 years. As per her own statement of
the petitioner no.1 dated 31.08.2020
recorded under Section 164 Cr.P.C. her age
is 17 years. It appears that subsequently
during course of the investigation in the
aforesaid F.I.R. Section 376 I.P.C. and
Section 4 of POCSO Act were also added.
As per medical examination conducted by
the Chief Medical Officer, Bareilly dated
07.08.2020, age of the petitioner no.1 is
about 17 years. Thus, the petitioner is a
minor. F.I.R. under Sections 363/366/376
I.P.C. and Section 4 of POCSO Act is
registered against the petitioner no.2. The
impugned order dated 03.09.2020 has been
passed by Member/Magistrate, Bal Kalyan
Samiti, whereby the petitioner no.1 has
been given in the custody of Assistant
Superintendent, State Woman Protection
Home, Bareilly. Aggrieved with this order
the petitioner no.2, who is accused in the
aforesaid F.I.R., has filed the present
Habeas Corpus writ petition for quashing
the impugned order and for a direction to
produce petitioner no.1 before this Court
and to set her at liberty.

4. Learned counsel for the petitioners
submits as under:-

(i) The petitioner no.1 may be
produced before this Court so that the
mother of the petitioner no.2, may meet
petitioner no.1 and proper treatment of the
petitioner no.1 may be carried and to set
her at liberty.

5. Sri Patanjali Mishra, learned
A.G.A. supports the impugned order and
submits that the petitioner no.2 is an
accused in the aforesaid F.I.R. under
Section 363, 366, 376 I.P.C. and Section 4
of POCSO Act. The petitioner no.1 is
minor and she has been rightly directed to
be kept in State Woman Protection Home,
Bareilly.

6. We have carefully considered the
submissions of the learned counsel for the
parties and perused the record of the writ
petition.

7. Section 94(2) of the Juvenile Justice
(Care and Protection), 2015 (hereinafter
referred to as ''the J.J. Act") provides for
presumption and determination of age, as
under:

"(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
2 All. Smt. Archana & Anr. Vs. State of U.P. & Ors.
73
undertake the process of age determination,
by seeking evidence by obtaining--

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order."

8. Thus, as per provisions of Section
94(2) of the J.J. Act, the Child Welfare
Committee or the Board has reasonable
grounds to 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 by
obtaining, firstly, the date of birth certificate
from school, or matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof; secondly, the birth certificate given
by a corporation or a municipal authority or a
panchayat; and thirdly, in absence of
educational certificate or birth certificate as
aforementioned, the age shall be determined
by an ossification test or any other latest
medical age determination test conducted on
the orders of the Committee or the Board.
Thus, as per statutory mandate of Section
94(2) of the J.J. Act, primacy is to be
accorded to the date of birth certificate from
the school or the matriculation or equivalent
certificate from the concerned Examination
Board and only in absence thereof, the birth
certificate of a corporation or municipal
authority or a panchayat can be looked into.
When the certificates as provided under subclauses (i) and (ii) of sub-Section (2) of
Section 94, is not available, only then the
medical evidence as provided in sub-clause
(iii) is to be taken into consideration. In the
present set of facts, as per educational
certificate, the date of birth of the petitioner is
05.11.2003.

9. 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", as under:

"(14) "child in need of care and
protection" means a child--

(i) who is found without any home
or settled place of abode and without any
ostensible means of subsistence; or

(ii) who is found working in
contravention of labour laws for the time
being in force or is found begging, or living
on the street; or

(iii) who resides with a person
(whether a guardian of the child or not)
and such person--

(a) has injured, exploited, abused
or neglected the child or has violated any
other law for the time being in force meant
for the protection of child; or
74 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) has threatened to kill, injure,
exploit or abuse the child and there is a
reasonable likelihood of the threat being
carried out; or

(c) has killed, abused, neglected
or exploited some other child or children
and there is a reasonable likelihood of the
child in question being killed, abused,
exploited or neglected by that person;or

(iv) who is mentally ill or
mentally or physically challenged or
suffering from terminal or incurable
disease, having no one to support or look
after or having parents or guardians unfit
to take care, if found so by the Board or the
Committee; or

(v) who has a parent or guardian
and such parent or guardian is found to be
unfit or incapacitated, by the Committee or
the Board, to care for and protect the safety
and well-being of the child; or

(vi) who does not have parents
and no one is willing to take care of, or
whose
parents
have
abandoned
or
surrendered him; or

(vii) who is missing or run away
child, or whose parents cannot be found
after making reasonable inquiry in such
manner as may be prescribed; or

(viii) who has been or is being or
is likely to be abused, tortured or exploited
for the purpose of sexual abuse or illegal
acts; or

(ix) who is found vulnerable and
is likely to be inducted into drug abuse or
trafficking; or

(x) who is being or is likely to be
abused for unconscionable gains; or
(xi) who is victim of or affected by any
armed conflict, civil unrest or natural
calamity; or

(xii) who is at imminent risk of
marriage before attaining the age of
marriage and whose
parents,
family
members, guardian and any other persons
are
likely
to
be
responsible
for
solemnisation of such marriage;"

10. Section 37 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 SubSection (1) of Section 37. Section 37 of the
J.J. Act is reproduced below:

"37. Orders passed regarding a
child in need of care and protection.- (1)
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 following orders, namely:--

(a) declaration that a child is in
need of care and protection;

(b) restoration of the child to
parents or guardian or family with or
without supervision of Child Welfare
Officer or designated social worker;

(c) placement of the 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;
2 All. Smt. Archana & Anr. Vs. State of U.P. & Ors.
75

(d) placement of the child with fit
person for long term or temporary care;

(e) foster care orders under
section 44;

(f) sponsorship orders under
section 45;

(g) directions to persons or
institutions or facilities in whose care the
child is placed, regarding care, protection
and rehabilitation of the child, including
directions relating to immediate shelter and
services
such
as
medical
attention,
psychiatric and psychological support
including
need-based
counselling,
occupational
therapy
or
behaviour
modification therapy, skill training, legal
aid,
educational
services,
and
other
developmental activities, as required, as
well as follow-up and coordination with the
District Child Protection Unit or State
Government and other agencies;

(h) declaration that the child is
legally free for adoption under section 38.

(2) The Committee may also pass
orders for--

(i) declaration of fit persons for
foster care;

(ii) getting after care support
under section 46 of the Act; or

(iii) any other order related to
any other function as may be prescribed."

11. 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
impugned order passed by the Child
Welfare Committee is in exercise of powers
under Section 37 of the J.J. Act. Under the
circumstances, when undisputedly corpus -
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 impugned 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.

12. It would be relevant to observe
that
Hon'ble
Supreme
Court
has
consistently taken the view 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
Haryana1,
Mahadeo
Vs.
State
of
Maharashtra2, and State of M.P. Vs.
Anoop Singh3, (paras 14 to 18).

13. In the case of Independent
Thought v. Union of India4, (paras-95,
96, 97, 107), Hon'ble Supreme Court held
as under:

"95. Whatever be the explanation,
given the context and purpose of their
enactment, primacy must be given to prochild statutes over IPC as provided for
inSections 5and41 IPC. There are several
reasons for this including the absence of
any rationale in creating an artificial
distinction, in relation to sexual offences,
between a married girl child and an
unmarried girl child. Statutes concerning
the rights of children are special laws
concerning a special subject of legislation
and therefore the provisions of such
subject-specific legislations must prevail
and take precedence over the provisions of
a general law such as IPC. It must also be
remembered that the provisions of the JJ
Act as well as the provisions of the POCSO
76 INDIAN LAW REPORTS ALLAHABAD SERIES
Act are traceable toArticle 15(3)of the
Constitution which enables Parliament to
make special provisions for the benefit of
children. We have already adverted to some
decisions relating to the interpretation
ofArticle 15(3)of the Constitution in a
manner that is affirmative, in favour of
children and for children and we have also
adverted
to
the
discussion
in
the
Constituent Assembly in this regard. There
can therefore be no other opinion regarding
the pro-child slant of the JJ Act as well as
the POCSO Act.

96. A rather lengthy but useful
discussion on this subject of special laws is
to be found inL.I.C. v. D.J. Bahadur in
paras 52 and 53 of the Report. Briefly, it
was held that the subject-matter and the
perspective of the statute are determinative
of the question whether a statute is a
general law or a special law. Therefore, for
certain purposes a statute might be a
special law but for other purposes, as
compared to another statute, it might be a
general law. In respect of a dispute between
the Life Insurance Corporation and its
workmen qua workmen, the Industrial
Disputes Act, 1947 would be a special law
vis-à-vis theLife Insurance Corporation
Act, 1956; but, "when compensation on
nationalisation is the question, theLIC Actis
the special statute". It was held as
follows:(SCC pp.350-51)

"52. In determining whether a
statute is a special or a general one, the
focus must be on the principal subjectmatter plus the particular perspective. For
certain purposes, an Act may be general
and for certain other purposes it may be
special and we cannot blur distinctions
when dealing with finer points of law. In
law, we have a cosmos of relativity, not
absolutes -- so too in life.The ID Actis a
special
statute
devoted
wholly
to
investigation and settlement of industrial
disputes which provides definitionally for
the nature of industrial disputes coming
within its ambit. It creates an infrastructure
for investigation into, solution of and
adjudication upon industrial disputes. It
also provides the necessary machinery for
enforcement of awards and settlements.
From alpha to omega theID Acthas one
special mission -- the resolution of
industrial disputes through specialised
agencies
according
to
specialised
procedures and with special reference to
the weaker categories of employees coming
within
the
definition
of
workmen.
Therefore, with reference to industrial
disputes between employers and workmen,
theID Actis a special statute, and theLIC
Actdoes not speak at all with specific
reference to workmen. On the other hand,
its powers relate to the general aspects of
nationalisation,
of
management
when
private businesses are nationalised and a
plurality of problems which, incidentally,
involve transfer of service of existing
employees of insurers. The workmen qua
workmen and industrial disputes between
workmen and the employer as such, are
beyond the orbit of and have no specific or
special place in the scheme of theLIC Act.
And whenever there was a dispute between
workmen
and
management
theID
Actmechanism was resorted to.

53.What are we confronted with
in the present case, so that I may determine
as between the two enactments which is the
special? The only subject which has led to
this litigation and which is the bone of
contention between the parties is an
industrial dispute between the Corporation
and its workmen qua workmen. If we refuse
to be obfuscated by legal abracadabra and
see plainly what is so obvious, the
conclusion that flows, in the wake of the
study I have made, is that vis-a-vis
"industrial disputes" at the termination of
2 All. Smt. Archana & Anr. Vs. State of U.P. & Ors.
77
the settlement as between the workmen and
the Corporation, theID Actis a special
legislation
and
theLIC Acta general
legislation. Likewise, when compensation
on nationalisation is the question, theLIC
Actis the special statute. An application of
the generalia maxim as expounded by
English textbooks and decisions leaves us
in no doubt that theID Actbeing special
law, prevails over theLIC Actwhich is but
general law."

 (Emphasis in original)

The scope and amplitude of the
two significant pro-child statutes may now
be examined in light of the law laid down
by this Court includingSections 5and41of
the IPC.

(i) The JJ Act

97. A cursory reading of the JJ Act
gives a clear indication that a girl child who
is in imminent risk of marriage before
attaining the age of 18 years of age is a child
in need of care and protection (Section 2(14)
(xii) of the JJ Act). In our opinion, it cannot
be said with any degree of rationality that
such a girl child loses her status as a child in
need of care and protection soon after she
gets married. The JJ Act provides that efforts
must be made to ensure the care, protection,
appropriate rehabilitation or restoration of a
girl child who is at imminent risk of marriage
and therefore a child in need of care and
protection. If this provision is ignored or
given a go by, it would put the girl child in a
worse off situation because after marriage
she could be subjected to aggravated
penetrative sexual assault for which she
might not be physically, mentally or
psychologically ready. The intention of the JJ
Act is to benefit a child rather than place her
in difficult circumstances. A contrary view
would not only destroy the purpose and spirit
of the JJ Act but would also take away the
importance ofArticle 15(3)of the Constitution.
Surely,
such
an
interpretation
and
understanding cannot be given to the
provisions of the JJ Act."

107. On a complete assessment of
the law and the documentary material, it
appears that there are really five options
before us: (i) To let the incongruity remain as
it is -- this does not seem a viable option to
us, given that the lives of thousands of young
girls are at stake; (ii) To strike down as
unconstitutional Exception 2 to Section 375
IPC -- in the present case this is also not a
viable option since this relief was given up
and no such issue was raised; (iii) To reduce
the age of consent from 18 years to 15 years -
- this too is not a viable option and would
ultimately be for Parliament to decide; (iv) To
bring the POCSO Act in consonance with
Exception 2 to Section 375 IPC -- this is also
not a viable option since it would require not
only a retrograde amendment to the POCSO
Act but also to several other pro-child
statutes; (v) To read Exception 2 to Section
375 IPC in a purposive manner to make it in
consonance with the POCSO Act, the spirit of
other pro-child legislations and the human
rights of a married girl child. Being
purposive and harmonious constructionists,
we are of opinion that this is the only
pragmatic option available. Therefore, we are
left with absolutely no other option but to
harmonise the system of laws relating to
children and require Exception 2 to Section
375 IPC to now be meaningfully read as:
"Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under
eighteen years of age, is not rape." It is only
through this reading that the intent of social
justice to the married girl child and the
constitutional vision of the Framers of our
Constitution can be preserved and protected
and perhaps given impetus."

14. In the present set of facts, it is not
in
dispute
that
as
per
educational
certificate, the date of birth of the corpus is
78 INDIAN LAW REPORTS ALLAHABAD SERIES
05.11.2003. Hence, keeping in mind the
provisions of Section 94 of the J.J. Act, the
age recorded in the educational certificate
cannot be discarded in the proceedings
under the J.J. Act moreso when corpus in
her statement recorded on 31.08.2020
under Section 164, Cr.P.C. has stated that
her age is 17 years.

15. Once the corpus 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 subSection (14) of Section 2 of the J.J. Act.
Hence the order passed by the Child
Welfare Committee placing in a protection
Home would be within its powers confers
under Section 37 of the J.J. Act.

16. For all the reasons stated above,
the action of the respondent Nos.1 to 4 is
neither without jurisdiction nor illegal nor
perverse, keeping in mind the provisions of
the J.J. Act, 2015. Therefore, the detention
of the corpus cannot be said to be illegal so
as to warrant issuance of a writ of habeas
corpus. If the petitioners are aggrieved by
the order of the Child Welfare Committee,
they are at liberty to take recourse to the
remedy of an appeal provided under
Section 101 of the J. J. Act, 2015.

17. For all the reasons stated, above,
the writ petition is dismissed.
----------
(2021)02ILR A78
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 814 of 2020

Tanya Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shivkumari Chauhan, Sri M.S. Chauhan

Counsel for the Respondents:
A.G.A.

A. Constitution of India,1950-Article 226 -
Indian Penal Code,1860-Section 363,366
&
Juvenile
Justice
(Care
and
Protection),2015-Section 94(2), 14, 37mother of the accused filed petition
stating that the custody of the corpus in
Balika Grih Social Welfare Society is
illegal-while the corpus in her statement
u/s 164 stated that her age to be 16
years-hence, the accused mother has no
right to ask for the custody of the corpuscorpus gave birth to a child but she would
fall in the category of "child in need of
care and protection" u/s 2(12) and 14(2)
of J.J. Act-Hence, the order passed by the
Child Welfare Committee placing in a
protection Home would be within its
power confers u/s 37 of the J.J. Actdetention of the corpus can not be said to
be illegal so as to warrant issuance of a
writ of habeas corpus-the writ is not
maintainable.(Para 2 to 17)

B. A cursory reading of the JJ Act gives a
clear indication that a girl child who is in
imminent risk of marriage before attaining
the age of 18 years of age is a child in
need of care and protection u/s 2(14)(xii)
of the Act. If this provision is ignored or
given a go by, it would put the girl child in
a worse off situation because after
marriage she could be subjected to
aggravated penetrative sexual assault for
which
she
might
not
be
physically,
mentally or psychologically ready. (Para
13)

The petition is dismissed. (E-5)