Daije Kumari vs State Of Jharkhand & Ors

This revision is directed against the order dated 11. 10.2018, passed by the Additional Sessions Judge-II Dumka, in S.T. No. 121 of 2018 (G.R. No. 289 of 2018) arising out of Dumka(T) P.S. Case No.57 of 2018, under Section 365, 366-A of Indian Penal Code, whereby the application of petitioner for release from the Women Observation Home (Nari Niketan), Deoghar was rejected.

Learned counsel for the petitioner has submitted that the court below has failed to appreciate that by order dated 21.03.2018, the learned Chief Judicial Magistrate, Dumka had directed the petitioner to be kept in the Women Observation Home (Nari Niketan), Deoghar, till she attains the age of 18 years. That the victim girl's statement was recorded under Section 164 of Cr.P.C, wherein she has categorically stated that she has solemnized the marriage with Jitendra Kumar and she wants to lead her matrimonial life with him and she does not want to reside with her parents.

It is submitted that in the order dated 21.03.2018, passed by the learned Chief Judicial Magistrate, Dumka, it is disclosed that the mother of the petitioner had appeared before the Chief Judicial Magistrate, Dumka, and she had stated that she was not willing to keep the petitioner. Accordingly learned Chief Judicial Magistrate ordered that the petitioner be sent to the Women Observation Home (Nari Niketan), till she attains the age of 18 years.

It is submitted that the date of birth of the petitioner is 08.10.2000 as would be evident from the certificate issued by Jharkhand Academic Council i.e., Annexure-3 series. That as on date she is over 18 years of age.

Learned counsel, while relying on the decision of this court reported in 2006 (4) JCR 1 (Jhr); 2007 Criminal Law Journal 663 and judgment of the Patna High Court in Criminal Miscellaneous No.24990 of 2015 rendered on 31.03.2016, in the case of Saba Praveen v. The State of Bihar & Ors., and judgment of the Division Bench in W.P. (Cr-H.B.) (DB) No. 290 of 2018 dated 13.03.2019, has submitted that the settled legal position is that when a girl attains the age of majority she can not be detained in the observation home against her wishes.

Learned APP and counsel for the O.P. No.3 and 4, i.e., the mother and father of the petitioner, have submitted that the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 mandates that a juvenile after attaining the age of majority i.e., 18 years and till completion of 21 years should be kept in a proper custody. That the legislative intent of the Act is to take proper care and protection of a child in conflict with law. It is argued that there is no surety of the fact whether O.P. No.2 will take proper care and ensure the safety of the petitioner. It is submitted that the matter be remitted to the court below with a direction to hand over the custody of the petitioner to her parents, who being the natural guardians, will take proper care and protection of the petitioner. They have a moral obligation as parents to ensure the safety and well being of the petitioner. It is urged that Section 39 (4) read with Section 46 of the Juvenile Justice (Care and Protection of Children) Act, 2015 mandates that on attainment of age 18 years and till the age of 21 years, the children in conflict with law require proper care and protection. It is contended that the court below has considered the entire aspect of the matter, accordingly the impugned order does not suffer from any illegality or impropriety.

Learned counsel appearing on behalf of O.P. No.2 has submitted that in the statement under Section 164 Cr.P.C the petitioner has categorically stated that she has solemnized the marriage with O.P. No.2 at Varanasi, and she wants to lead her conjugal life with O.P. No.2. That O.P. No.2 is ready to give an undertaking in the court below for ensuring proper care and protection of the petitioner and abide by any other terms and conditions the court below deems fit and proper to impose for releasing the petitioner to the custody of O.P. No.2.

Having heard the learned counsels and on perusal of the material on record, it is evident from certificate issued by the Jharkhand Academic Council that the date of birth of the petitioner has been mentioned as 08.10.2000. She attained the age of 18 years on 07.10.2018. She is mature enough to exercise her discretion to live with the person who she feels will take proper care of her and protect her. It is evident from the order dated 21.03.2018, passed by the court of Chief Judicial Magistrate, Dumka, that the mother of the petitioner had categorically stated that she did not want to take the custody of the petitioner. It was due to this fact that the court of Chief Judicial Magistrate, Dumka had ordered that the petitioner be sent to the Women Observation Home (Nari Niketan), Deoghar till she attains the age of 18 years. Now the petitioner has crossed the age of eighteen years, therefore the petitioner is at liberty to go wherever she prefers as per her wish and desire. In the attending facts, the court below is directed to order for the release of the petitioner from the Women Observation Home (Nari Niketan), Deoghar, at the earliest.

In the result, this Cr. Revision stands allowed.