Case Note & Summary
The petitioner, Asiya Anwar Shaikh, filed a writ petition challenging the order of the Additional Sessions Judge, Pandharpur, which confirmed the order of the 2nd Joint Judicial Magistrate First Class, Pandharpur, sending the victim (Respondent No.2, XYZ) to a corrective institution for one year. The victim was rescued in a raid from a lodge and was initially kept with a social worker. The police filed an application to keep her in a corrective institution. The petitioner, claiming to be the believed mother of the victim, filed an application for custody. The Magistrate recorded statements of both the petitioner and the victim, and directed a probation officer's inquiry under Section 17(2) of the Immoral Traffic (Prevention) Act, 1956. The probation officer reported that the victim was willing to go with her mother and that the mother was fit. Despite this, the Magistrate ordered the victim to be sent to a corrective institution for one year. The Sessions Judge dismissed the appeal. The High Court held that under Section 17(4) of the Act, the court must consider the victim's wishes and the suitability of the guardian. Since the victim expressed willingness to go with her mother and the mother was found fit, the orders of the lower courts were unsustainable. The High Court set aside the orders and directed that the victim be handed over to the petitioner for care and protection.
Headnote
A) Immoral Traffic (Prevention) Act, 1956 - Section 17(4) - Custody of Victim - Welfare of Victim - The court must consider the victim's wishes and the suitability of the guardian before ordering detention in a corrective institution. The victim expressed willingness to go with her believed mother, and the mother was found fit. Held that the order of the lower courts was unsustainable and custody should be granted to the mother (Paras 5-10).
Issue of Consideration
Whether the order sending the victim to a corrective institution for one year should be set aside and custody granted to the petitioner (believed mother) under the Immoral Traffic (Prevention) Act, 1956.
Final Decision
The High Court allowed the writ petition, set aside the orders of the JMFC and the Additional Sessions Judge, and directed that the victim be handed over to the petitioner (believed mother) for care and protection.
Law Points
- Welfare of victim is paramount
- Victim's consent must be considered
- Believed mother's custody preferred over corrective institution
- Section 17(4) of ITP Act requires inquiry and victim's wishes
