In a habeas corpus writ petition filed before the Allahabad High Court seeking liberty, a Division Judge Bench of Justice J.J. Munir and Justice Sanjiv Kumar denied giving the custody of the minor petitioner to her mother-in-law, as there was no assurance that there would be no carnal relations between the petitioner and her husband once he is set free. The protection home was directed to release the petitioner once she attained majority, and meanwhile, the mother-in-law was permitted to meet the petitioner and her child at the protection home.
The first petitioner (A) was a minor, and the second petitioner was her minor son. ‘A’ married a man out of her free will, but A’s father reported the incident to the police. A’s high school certificate mentioned her date of birth to be 05-10-2008, and hence, on the date of her marriage, ‘A’ was three months shy of 17 years.
On 14-07-2025, A gave birth to a boy (second petitioner). A’s husband was remanded to judicial custody on 22-07-2025. ‘A’ was also detained by the police and produced before the Child Welfare Committee (CWC), where she gave a statement that she wished to go back to her husband’s house and refused to go along with her parents.
The Court stated that the sixth clause of Section 375, Indian Penal Code, 1908 (IPC), was amended by the Criminal Law (Amendment) Act, 2013 to provide that any of the sexual activities mentioned in Clauses (a) to (d) would constitute rape under the sixth clause of Section 375 with or without consent of the prosecutrix when she is under the age of 18 years.
Further, the Court said that the statutory context has changed since Independent Thought v. Union of India & Anr (2017) 10 SCC 800 was decided by the Supreme Court. It was mentioned that under the Bharatiya Nyaya Sanhita, 2023 (BNS), the age of consent under Section 63(vi) is stipulated to be 18 years, and that the offence in the present matter was committed on 03-07-2025, which is much after BNS came into force.
The Court held that permitting a minor to cohabit with an adult would make the husband liable for offences punishable under the Protection of Children from Sexual Offences Act, 2012. It was said that once custody of ‘A’ was given to her mother-in-law, there could be no assurance that there would not be any carnal relations with her major husband, as there was no mechanism by which the law could ensure that the two stayed away from each other.
The Court considered the matter in totality and found that letting the mother-in-law meet ‘A’ at Rajkeeya Bal Grih (Balika), where she was detained, was a reasonable relief. However, it was stated that the mother-in-law would not be allowed to provide any eatables or food to ‘A’ or her child while visiting.
Further, the Court also noted that once ‘A’ attains majority, she would be entitled to her liberty to go anywhere that she likes. The Court was also informed about the deplorable conditions of Rajkeeya Bal Grih (Balika).
While disposing of the petition, the Court directed the In-Charge of Rajkeeya Bal Grih (Balika) to set ‘A’ at liberty on her 18th birthday without any hassle and to ensure that ‘A’, along with her child, is housed under conditions that are conducive to her good health and well-being. The Chief Medical Officer, Kanpur Nagar, was directed to ensure that a doctor and a paediatrician are available for ‘A’ and her child. Further, the District Judge, Kanpur Dehat, was directed to assign a senior lady Judicial Officer to visit ‘A’ and her child at least once a month. In case of any violations of the directions mentioned above, the officer would make a report and submit it to the Court.
Appearances:
For Petitioner(s) – Mr. Shakti Shanker Tiwari, Mr. Subhash Chandra Tiwari
For Respondent(s) – G.A.
