Case Note & Summary
The petitioners, Sunita Devi Samarjit Singh and Samarjeet Patiram Singh, are the parents of a minor girl (referred to as Victim-XYZ) who was rescued by the D B Marg Police Station in a trap under Crime No.41 of 2017 registered under various provisions of the Indian Penal Code, the Immoral Traffic (Prevention) Act, 1956, and the Protection of Children from Sexual Offences Act, 2012. The victim girl was taken into custody and placed at the CWC, Chembur Children's Home Campus, Mankhurd, Mumbai. The parents filed an application before the learned Metropolitan Magistrate, 54th Special Court for ITPA, Mazgaon, for custody of the victim girl. The learned Magistrate by order dated 24/03/2017 rejected the application, and the Designated Court under the POCSO Act by order dated 19/05/2018 also rejected the application and directed that the custody of the victim be with CWC till she attains 18 years of age, after which custody would be handed over to the mother. The parents challenged this order by way of a Criminal Writ Petition before the Bombay High Court. The High Court, after hearing the parties, set aside the impugned order and allowed the petition, granting custody of the victim girl to her parents subject to certain conditions, including that the parents shall produce the victim before the Investigating Officer as and when required and shall not allow the victim to be involved in any illegal activity. The court held that the parents cannot be denied custody merely because the child was rescued from a brothel, and that the welfare of the child lies with her natural parents unless they are found unfit.
Headnote
A) Criminal Law - Custody of Minor Victim - Immoral Traffic (Prevention) Act, 1956 - Sections 3, 4, 7(1)(b) - Protection of Children from Sexual Offences Act, 2012 - Sections 4, 8, 17 - The petitioners, parents of a minor girl rescued from a brothel, challenged the order of the Designated Court rejecting their custody application and directing the child to remain in CWC till 18 years. The High Court held that the parents cannot be denied custody merely because the child was rescued from a brothel, and that the welfare of the child is best served by being with her natural parents unless they are found unfit. The impugned order was set aside and custody was granted to the parents subject to conditions. (Paras 1-7) B) Criminal Law - Welfare of Child - Natural Parents - The court emphasized that the primary consideration in custody matters is the welfare of the child, and that the child's natural parents are presumed to be the best custodians unless there is evidence of unfitness. The mere fact that the child was rescued from a brothel does not disqualify the parents from custody. (Paras 5-7)
Issue of Consideration
Whether the Designated Court was justified in rejecting the mother's application for custody of her minor daughter and ordering her custody to be with CWC till she attains 18 years of age.
Final Decision
The petition is allowed. The impugned order dated 19/05/2018 passed by the Designated Court under POCSO Act is set aside. The custody of the victim girl is granted to her parents subject to conditions: (i) the parents shall produce the victim before the Investigating Officer as and when required; (ii) the parents shall not allow the victim to be involved in any illegal activity; (iii) the parents shall file an undertaking before the court within two weeks.
Law Points
- Custody of minor victim
- Immoral Traffic (Prevention) Act
- 1956
- Protection of Children from Sexual Offences Act
- 2012
- Welfare of child
- Natural parents' right to custody
