Allahabad High Court
Mukesh Kumar vs State Of U.P. And 3 Others on 5 October, 2023
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:191130
Court No. - 81
Case :- HABEAS CORPUS WRIT PETITION No. - 833 of 2023
Petitioner :- Mukesh Kumar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Darwari Lal
Counsel for Respondent :- G.A.
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Darwari Lal, learned counsel for the petitioner and learned AGA for the State.
2. This petition has been filed by the petitioner-Mukesh Kumar with the submission that Smt. Nita Kumari @ Firdaus Jahan is his legally wedded wife. She is major, aged about 23 years. Their marriage was registered at the Registrar of Marriages. It is further submitted that she has been illegally detained by the respondent no. 2-Bal Kalyan Samiti, District Sambhal.
3. Perusal of the papers show that 'the corpus' was produced before the Child Welfare Committee, District Sambhal. On the basis of the educational papers, she was declared as a 'minor' and was ordered to be kept in a protection home at Moradabad.
4. It is observed that in case the petitioner is not satisfied with the order passed by the Child Welfare Committee, he can challenge the order under sections 101 or 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, as the case may be.
5. The High Court of Allahabad in judgment passed in Habeas Corpus Writ Petition No. 362 of 2020 (Km. Rachna and another vs. State of U.P. and 4 Others) delivered on 08.03.2021, has clearly held in para no. 78 that a writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee.
Relevant Question No. 1 was framed, which is as below:-
"Question No.1 : "(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?"
Answering to Question no. 1, the High Court held as below:-
"Answer : If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus."
The court further held that even an illegal or irregular exercise of jurisdiction by the Magistrate or by the C.W.C., cannot give cause of action for a writ of habeas corpus.
6. As the corpus is lodged in a protection home under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, hence her detention cannot be treated as illegal from any angle. The petition is devoid of substance and is hereby dismissed.
7. The petitioner is at liberty to challenge the order of the Child Welfare Committee under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 before the appropriate forum.
Order Date :- 5.10.2023
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