Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakru, J. allowed the termination of pregnancy of a minor whose fetus had already undergone a gestation period of 22 weeks.

In the present order, it was noted that the petitioner had approached the High Court for direction to respondents in regard of termination of her pregnancy even after being aware of the high risks involved with the same. The Court on interaction with the 16-year old rape victim noted that she insisted on the termination of pregnancy and seemed to be in considerable distress.

Further, the Court noted the observation of Dr Sanjay Agrawal, Director Professor of Psychiatry, who was of the view that the unwanted pregnancy was causing a considerable amount of distress to Ms X. Medical Board had submitted the report which indicated that abortions of about 22 weeks carry a higher risk of mortality and morbidity. The stated risk was explained to the petitioner as well as her father, both of whom were adamant that the pregnancy should be terminated.

Learned Counsel for the petitioner while citing various decisions of Supreme Court including Chanchala Kumari v. Union of India, WP(C) No. 871 of 2017 and Venkatalakshmi v. State of Karnataka, Civil Appeal No. 1538 of 2017, noted that the Court on examining the medical reports had permitted the termination even after 24 weeks of pregnancy.

Thus, the High Court keeping in consideration the above-stated allowed the petition and directed for the termination of pregnancy of the minor child. [X v. State (NCT of Delhi),2018 SCC OnLine Del 12891, Order dated 01-12-2018]

Case BriefsForeign Courts

South Africa High Court, Western Cape Division: Two matters came for review before a 2-Judge Bench comprising of DM Thulare AJ; MJ Dolamo J, where the proceedings were held considering the accused as major but they were found to be minor.

One of the accused pleaded guilty and thereby he was convicted under Section 112(1)(a) of the Criminal Procedures Act, 1977. While mitigation of sentences were being held it was brought before the court that the accused was minor as a consequence of which he was released and the matter was postponed for the determination of the correct age of the accused.  The second accused was found guilty and accordingly sentenced where his age was not determined.

The High Court viewed that terminology used in Section 12, 13 and 14 in Part 3 of Chapter 2 of the Child Justice Act, 2008 were not interpreted and applied in the best interests of children. Court with respect to Section 12 observed that police officer after arrest should have treated a youngster as child unless there were other reasons to the contrary. Further, Section 14 states that where the age of accused is uncertain, it is for the presiding officer to hold enquiry to determine same.  It was found that the presiding officer before whom the accused first appeared failed to determine the age of accused. Finding the Magistrate to be correct who said that the wrong determination of date caused prejudice to the accused conviction was liable to be set aside. Therefore, Court ordered the conviction of first accused and sentence on second accused to be set aside and the matter was remitted back to the magistrate for sentencing under Chapter 10 of Child Justice Act, 2008. [State v. B O, Special Review 181000, dated 02-11-2018]

Case BriefsHigh Courts

Kerala High Court: The question before a 2-Judge Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., was to determine the jurisdiction of Court, whether Court can entertain a matter related to guardianship of a minor or not where the expression “the place where the minor ordinarily resides” in Section 9(1) of the Guardians and Wards Act, 1890 was to be interpreted.

The facts leading to the instant petition are that the appellant (mother of minor) filed a petition in family court for the custody of her minor child. The respondent (father of the minor) contested the above petition by challenging the jurisdiction of Court on grounds that by virtue of Section 9(1) of the Act Court had no jurisdiction to try this matter as the correct jurisdiction would be where the minor ordinarily resides. Court thereby ordered appellant to file the petition before the court having jurisdiction. This order of the court is challenged before the High Court in the instant petition. The High Court referred case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 where Apex Court held that test to determine the jurisdiction of Court to entertain the application of guardianship of minor is the place of ordinary residence of a minor. Appellant pleaded that under Section 6 of Hindu Minority and Guardianship Act, 1956 custody of a minor who is below five years of age is with the mother and since minor was less than five years old appellant would be the natural guardian of the minor thus her residence would be the ordinary residence of minor. Court rejected this pleading and cleared that it is the ordinary residence of the minor which is going to decide the jurisdiction of the Court and not the residence of natural guardian.

Therefore, Court found no error in the finding of lower court that it had no jurisdiction to try this matter as minor was not ordinarily residing within its jurisdiction. [Divya J. Nair v. S.K. Sreekanth,2018 SCC OnLine Ker 3375, dated 12-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rakesh Kumar Jain, J., refused to grant permission to terminate pregnancy of a 14-year minor girl.

The facts of the case are that the petitioner was father of a minor girl of 14 years of age who was raped and an FIR was filed against the accused under Section 6 of the POCSO Act, 2012 and Sections 376(3) and 506 of Penal Code. As soon as pregnancy of the minor came into light the petitioner approached the Court for termination of 28 weeks pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971 wherein permission of Court is required if the pregnancy is of more than 20 weeks. Question before Court was whether if pregnancy of the minor is terminated, there would be danger to life of minor or not. Director, PGIMS Rohtak gave opinion according to which if pregnancy is terminated, there could be grave risk to minor’s life. Accordingly, Court in the instant petition refused to permit termination of pregnancy. Petitioner asked for directions in light of the case of Shewata v. State of Haryana, 2015 SCC OnLine P&H 20442 wherein termination of pregnancy of a girl was rejected but directions were given by Court for the welfare of the girl.

The High Court, therefore, issued directions to the Director, PGIMS Rohtak for the welfare of the minor. Some of the important directions are given here for reference.

  • Direction to admit minor as an indoor patient with a private room.
  • Minor was to be given medicines, food, clothes and other facility and during delivery, minor should be personally monitored by the Head of the Department of Obstetrics and Gynaecology.
  • Authorities of Medical College to ensure privacy and non-discloser of her name to the public.

With the above directions, the petition was disposed of by the Court. [Sikander v. State of Haryana, CWP No.21291 of 2018, decided on 28-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of J.K.Maheshwari and Akhil Kumar Srivastava, JJ., addressed the issue of rape and murder of a minor girl to see if capital punishment of death penalty could be imposed upon the accused.

Accused in this case was alleged under Sections 376A, 302, 342, 201/511of IPC. He raped a minor girl aged 12-year old after which the girl died. The court had no doubt as to the commission of rape by the accused as many people witnessed the accused running away from the hut where the girl was found dead. The post-mortem report confirmed rape but the reason for her death was stated to be asphyxia. Trial Court observed that the case was proved beyond reasonable doubt. While sentencing accused, Trial Court took aid under Section 42 of POCSO Act as the victim was a minor girl. Stating instant case as rarest of rare case capital punishment of death was awarded.

The appeal went before High Court where the question of whether it was a “rarest of the rare case” was to be decided. Court referred various judgments of Apex Court to understand “rarest of the rare case” and on perusing the aggravating and mitigating circumstances court was of the view that the instant case would not come under “rarest of the rare case”. Therefore, Court set aside the capital punishment given for the offence under Section 376A of the I.P.C. [Sunil Adiwasi v. State of M.P., Criminal Appeal No.5015 of 2018, dated 17-08-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that a six year old girl, studying in a government school in Delhi, has been allegedly raped by a person working as an electrician with the school around 1.30 P.M. on the 8th August, 2017.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary, Government of NCT of Delhi and the Commissioner of Police, Delhi calling for a detailed report in the matter within four weeks. The Chief Secretary is expected to inform whether all the guidelines/directions issued by the authorities for the safety of the students are being followed by the schools in Delhi. The Commission has also observed that the incident is reported to have happened in a government school. Being the custodian of the students, the school authorities are responsible for the safety and security of its students, especially the girl students. Prima Facie the incident indicates towards negligence by the school administration.

The NHRC also feels that there should be a State Human Rights Commission in Delhi to deal with such cases of alleged violation of human rights. However, till it comes into existence, it would continue addressing the issues pertaining to the NCT of Delhi. According to the media report, carried on the 10th August, 2018, the incident took place when the victim girl was about to return home, but she was stopped by the accused. The accused also allegedly warned the victim not to tell it to anyone. The victim was medically examined and the reports confirmed that she has been subjected to rape. An FIR in the matter has been registered by the police and the accused has been arrested.

National Human Rights Commission

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Debasish Kar Gupta and Shampa Sarkar, JJ. dismissed the petition filed under Article 226 of the Constitution due to inordinate delay in filing the application thereunder.

Father of the petitioner was working for gain as a temporary employee with Respondent 3. He died in harness in 1986. The petitioner was a minor, 11 years old, at the relevant time. After four years of attaining majority, the petitioner submitted an application to Respondent 3 for appointment on compassionate grounds. However, the application was rejected and further, the appeal filed before the Administrative Tribunal was also dismissed on grounds of inordinate delay. The petitioner challenged the decision of the Tribunal in the instant petition.

The High Court perused the record and found that the petitioner was a minor at the relevant time. The Court held it to be settled law that a minor had no vested right to claim appointment at the time of the death of his father in harness. The Court also took notice of unexplained inordinate delay of over four years in submitting the application for appointment even after attaining majority. The High Court found no fault with the impugned decision of the Administrative Tribunal. Thus, the petition was dismissed. [Kamal Adhikari v.  State of W.B., 2018 SCC OnLine Cal 3394, dated 04-06-2018]

Case BriefsHigh Courts

Bombay High Court (Goa Bench): A Single Judge Bench of the Goa Bench comprising of C.V. Bhadang, J. allowed a criminal writ petition filed against the judgment of the Sessions Judge whereby the petitioner was directed to pay maintenance to his adult son.

Earlier, Respondent 1 (wife of the petitioner) had filed an application under Section 12 of Protection of Women from Domestic Violence Act 2005 (DV Act), seeking, inter alia, monetary reliefs. Learned Magistrate by his order granted interim maintenance of Rs. 8000 per month for Respondent 2, son of the petitioner. It was not disputed that Respondent 2 was a major, aged 25 years. The petitioner filed an appeal before the Sessions Judge against the order of the Magistrate contending that under the provision, only a ‘child’ is entitled to maintenance. However, the Sessions Judge dismissed his appeal holding that the petitioner was liable to pay maintenance to Respondent 2 since he was an engineering student with no source of income. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court referred to Section 2(b) of the DV Act. On perusal of the section, the Court observed that ‘child’ within the meaning of the section means any person below the age of 18 years. In light of the undisputed fact that Respondent 2, son, was 25 years of age, the High Court held that he could not be included within the definition of ‘child’ as envisaged under Section 2(b). Hence, the petition was allowed and the impugned order was set aside. [Antonio De Matos Sequira Almeida v.  Felicidade Wilma Almeida, 2018 SCC OnLine Bom 1123, dated 04-06-2018]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: In a landmark judgment delivered by M.J. Lowe J., in the case of a minor being attacked by dog and claiming compensation in that reference, the High Court granted compensation.

The minor was below the age of 10 years and was attacked by the dog owned by the defendant while sitting on the brick wall separating the two properties. In a statement by defendant it was stated on his part that he had earlier warned the minor to not climb the wall in his absence showing his concern to not be able to control the dog (Bull Mastiff).

The Court analysed the case by discussing the points of law thoroughly. To start with “The Law of Delict in South Africa” wherein it has been explained, “the actio de pauperie for harm caused by domestic animals” in which owner of a domestic animal is strictly liable for the harm caused to another person in contradiction to its nature. For the said act the owner of the animal who had caused injury or damage will be liable. Liability under this point of law “actio de pauperie” would apply only when the animal must have acted “contra naturam sui generis.” The interpretation of “contra naturam” rule is wide in nature and suitability to the case.

The Court further dealt with the issue of provocation in which it was observed that on record there was nothing to indicate in the behaviour of the minor that constituted to any particular external stimuli for the dog to act “contra naturam”. Though, on the other hand it was also analysed by the Court that any reasonable dog would not have attacked a child simply on his climbing the boundary wall, which clearly puts the dog into the arena of acting “contra naturam”. Further it was also stated that the action of “actua de pauparie” is a special action limited to those who are lawfully on the defendant’s land when bitten and dealing with the present case, it was held that the child has a “pauperian” claim even if found without direct lawful entitlement. [Phildentia Kohl v. Charl Grobbelaar; Case No. 4962/2017; dated 22.05.2018]

Case BriefsHigh Courts

Bombay High Court: The sentence of the appellant who was convicted for kidnapping and rape, was reduced to the period already undergone by him, by a Single Judge Bench comprising of K.K. Sonawane, J.

The appellant was accused of forcibly taking away the prosecutrix (victim), who was a minor at the time of incident. She was taken away on the pretext of marriage and the appellant had sexual intercourse with her a number of times during that period. The appellant was charged under Section 361 read with Section 363, Sections 366 and 376 IPC. He was convicted by the trial court for the offences charged under. The appellant challenged the order of the trial court.

On considering the record, the High Court found that at the relevant time, the victim was 14 years of age. It was proved by the School Leaving Certificate signed by the Headmaster of the School. The evidence led by the prosecution and the statement of witnesses proved that the appellant kidnapped the victim and therefore committed the offence under Section 361 read with 363 IPC. Further, the fact of the appellant having sexual intercourse with the victim was proved by the medical report. And since the victim was below 16 years of age, therefore, her consent doesn’t count and the appellant was guilty of offences under Sections 366 and 376. However, the facts remained that the victim never raised alarm as to her kidnapping, never informed or tried to contact her family, lived with the appellant as husband and wife, and also that the appellant was a youngster, 24 years old, at the time of commission of the offence. The High Court finally upheld the conviction of the appellant; however, his sentence was reduced to the period already undergone by him in light of the mitigating circumstances as noted hereinabove. Thus, the appeal was partly allowed. [Bapu v. State of Maharashtra, 2018 SCC OnLine Bom 920, dated 03-05-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Single Judge Bench comprising of Tarlok Singh Chauhan, J., addressed a very unusual petition in which the court exercised its “parens-patriae” jurisdiction.

In accordance to the facts of the case, petitioner is said to have requested her parents to marry “L” who is a facebook friend of the petitioner/ “K”, but after several attempts also petitioner’s parents did not agree for the marriage and instead they lodged a complaint against “L” under Sections 363, 366 376  IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. Further the petitioner was handed over to her parents when she had claimed to have married “L” but later the petitioner came back to “L’s” house.

On filing the instant petition, the petitioner had sought reliefs on not being restrained by her parents or the police from living in her husband’s house or from any kind of harassment and also provision of police protection.

However, the Court had earlier asked for a status report in which it was seen that the petitioner is happily living with “L’s” parents and is being treated well by them. On looking at this report the Court directed that no authority shall remove the petitioner from such custody without the leave of this Court.

Therefore, the Hon’ble High Court, exercised “parens-patriae” jurisdiction to secure the welfare of the minor by taking instance from the Supreme Court case of Lata Singh v. State of U.P., (2006) 5 SCC 475 and proposing to the petitioner to live at Balika Ashram till the time she attains the age of majority and thereby, she will be free to go anywhere, marry anyone and love anyone she likes on reaching the age of majority, till that time no authority or person shall have the permission of the Court to take the petitioner from the Balika Ashram. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, dated 12-04-2018]

Case BriefsHigh Courts

High Court of Kerala: The Division Bench comprising of V. Chitambaresh and Sathish Ninnan, JJ., recently dealt with a writ petition filed by the mother for presenting the child in question to the Court since he had allegedly been removed from her custody without any orders from a court of law.

The petitioner contended that following her separation from her husband, despite her having full custody of the child, he was taken away by his paternal grand parents from his maternal aunt’s house while she was away working and was never returned back. The paternal grand parents refuted the claims and instead alleged that he was found abandoned in a store nearby the school. They also contended that by virtue of their son, the father of the child, being the natural guardian and since he was living abroad, they would have custody of the child.

The Court referred to Section 352 of Mulla’s Principles of Mahomedan Law wherein it has been laid down that a mother is entitled to the custody of her male child until he has completed 7 years of age or her girl child until she has attained puberty. The only exception to the rule arises if the mother has remarried, in which case, the father gets custody of the child. In the present case, since the child has not completed 7 years, the mother gets the custody.

The Court also acknowledged that the question of guardianship is separate from that of custody as was held in Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654. The Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi),  (2017) 8 SCC 454 wherein it was held that at the threshold the High Court is only supposed to examine whether “the minor is in lawful custody” of the respondent or not and a natural guardian would constitute as one by default. The biological mother is one such natural guardian. Once such a factor has been ascertained, only in exceptional cases can writ petitions for removal of guardianship of the child from the mother be entertained by the High Courts.

The Court thus ordered for the custody of the child to be returned to the mother and the parties to move the Family Court for further remedies if needed. It quoted Cardinal Mermillod’s famous quote, “A mother is she who can take the place of all others, but whose place no one else can take”. [Ancy A. v. Station House Officer, WP(Crl). No. 42 of 2018, order dated 7-2-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B Lokur and Deepak Gupta, JJ reserved the judgment in the issue relating to criminalising of forced sexual acts by the husband with his minor wife.

The Court was hearing the petition filed by NGO Independent Thought and Advocate Gaurav Agarwal, appearing for the NGO had contended before the Court that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court had, on 01.09.2017, sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down. [Independent Thought v. Union of India, Writ Petition(s)(Civil) No(s). 382/2013, order dated 06.09.2017]

Case BriefsHigh Courts

Delhi High Court:  Disposing of an appeal challenging the conviction and sentence under Sections 363, 366 and 376 of the Penal Code, 1860, the Court observed that “From the evidence on record, the prosecution has proved beyond reasonable doubt that the prosecutrix was of 13 years 9 months of age at the time of incident and Raju having allured and enticed the prosecutrix. Thus, her consent was immaterial for the reason she was a minor.”

In response to the appellant’s contention that since from the letters of the prosecutrix it is apparent that she was a consenting party having an affair with the appellant, the sentence of the appellant be reduced, the Court observed that “Section 376 IPC prior to the amendment carried out w.e.f. February 03, 2013, provided that the offence of rape of a woman under 16 years of age with or without her consent was punishable with imprisonment of not less than seven years but which may extend for life or for a term which may extend to ten years and payment of fine, provided, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years”.

The Court held that “Since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment however on the facts and circumstances of the case, the sentence of rigorous imprisonment for 10 years for offence punishable under Section 376 IPC and rigorous imprisonment for 7 years each for offences punishable under Sections 363 and 366 IPC is on the higher side.”

The Court observed that as per Section 376 IPC, the minimum sentence prescribed for the offence of rape of a minor below 16 years is 7 years and hence the sentence of the appellant cannot be reduced to the period already undergone. The appellant’s sentence was modified to 7 years’ RI for the offence punishable under Section 376 IPC with a fine of Rs 10,000 and in default of payment of fine to undergo simple imprisonment for one month,; 4 years’ RI for the offences under Sections 363 and 366 IPC with fine of Rs 2000, and in default of payment of fine to undergo simple imprisonment for one week on both counts. [Raju Kumar Verma @ Raju v. State (Govt. of NCT) of Delhi, 2016 SCC OnLine Del 2993, decided on May 17, 2016]