Transfer Certificate Not DoB Certificate; Mere Production Of School Records Not Sufficient For Child Welfare Committee To Determine Age: Allahabad High Court

The High Court was considering a writ of Habeas Corpus to release the first petitioner from Rajkiya Balgrih (Balika), Swaroop Nagar, Kanpur Nagar.

The Division Bench of Justice Salil Kumar Rai and Justice Zafeer Ahmad held, “A reading of Section 94(2) of the Act, 2015 also shows that the school records, i.e., entries in the admission register or in the transfer certificate are not the documents stipulated in the aforesaid provision as evidence of the date of birth of the person produced before the Committee. Section 94(2) (i) provides that date of birth certificate shall be obtained from the school. A transfer certificate or entries in the admission register of the school are not date of birth certificates. In our aforesaid view, we are supported by the judgment of Supreme Court in P. Yuvaprakash vs. State Rep. by Inspector of Police…”

“Mere production of the school records would not be sufficient for the Committee to determine the age of the person produced before it. As provided in Section 27 (9) of the Act, 2015, the Child Welfare Committee has powers conferred by the Code of Criminal Procedure, 1973 on the Judicial Magistrate of I Class. The Committee, thus, has the power to take evidence on oath and to scrutinize the evidence produced before it. The Committee has to act judicially. In case the Child Welfare Committee fails to scrutinize evidence and passes a mechanical order accepting the school records produced before it without any application of mind and without the records being proved as required in law, the order of the Child Welfare Committee would be absolutely illegal and a Habeas Corpus petition would lie before the Court for release of the person who has been taken in its custody by the Child Welfare Committee.”

Advocate Shailendra Kumar Tripathi represented the Petitioner, while Government Advocate represented the Respondent.

Factual Background

The petitioners claimed to be married according to Hindu Rites and Customs and the second petitioner is the husband of the first petitioner. It was stated in the writ petition that the date of birth of the first petitioner is January 1, 2005 and in support of the aforesaid averment, a marksheet allegedly issued by Janta Vidhyalaya as well as the family register of the first petitioner were annexed with the writ petition. The Aadhaar card of the first petitioner disclosed that the date of birth of the first petitioner was January 1, 2005. The case of the petitioners was that the first petitioner had gone with the second petitioner and married him voluntarily in 2023, and no force or coercion was applied on her.

The Respondent mother of the first petitioner lodged a first information report under Sections 147, 363, 366, 323, 506 IPC. The first petitioner, after being recovered, was subsequently handed over to the mother but it was alleged that she was again abducted by the second petitioner. It was claimed in the first information report that the date of birth of the first petitioner was May 11, 2008. After recovery, the first petitioner was medically examined, and the medical report opined that her age was 18 years or above. It was stated by the complainant that the first petitioner had studied in Primary School Sarhati, and it transpired that the age of the petitioner was recorded in her school records as May 11, 2008. Later, the Child Welfare Committee directed that the first petitioner be kept at the Government Children's Home (Girls), Swaroop Nagar. Kanpur Nagar. The petitioner claimed that the detention of the first petitioner was illegal.

Reasoning

On the issue of maintainability of a petition for writ of Habeas Corpus in cases of detention by an order of the Court, the Bench noted that the Supreme Court in various judgments had affirmed that a writ of Habeas Corpus is not to be entertained when a person is put to judicial custody or police custody by the competent Court by an order which prima facie did not appear to be without jurisdiction or was not passed in an absolutely mechanical manner or was not wholly illegal. “The aforesaid implies that in case, the order of the court was without jurisdiction or was passed in an absolutely mechanical manner or was wholly illegal, the petition for Habeas Corpus would be maintainable and a writ directing release of the detenue would be issued”, it added.

The Bench took note of the fact that the Child Welfare Committee had passed the order detaining the corpus, i.e., the first petitioner, on the ground that the corpus was below 18 years of age, therefore, a child. The Child Welfare Committee had relied on the school records wherein the date of birth of the first petitioner was recorded as May 11, 2008.

Coming to the facts of the case, the Bench noted that the Child Welfare Committee had not recorded any finding as to the genuineness of the school records produced before it. There was nothing on record disclosing the source of entries made in the school record and the reliability of such source. The entries in the school record were also not proved as required by law. “The Child Welfare Committee has also not taken the evidence of the Principal of the institution to verify the school records produced before it. It would also be relevant to note that the institution in which the state respondents claim the corpus was admitted, is not a government institution, therefore, its Principal is not a public servant”, it noted.

The Bench noticed that the medical test determining the age of the first petitioner indicated that the age of the corpus, i.e., first petitioner, was 18 years or above and was therefore not a child as defined in Section 2(12). The Bench thus stated, “The Child Welfare Committee has no jurisdiction to take the corpus, i.e., petitioner no. 1 under its care and protection or keep her in Government Children's Home or anywhere else. The detention of corpus, i.e., petitioner no. 1 in Rajkiya Balgrih (Balika), Swaroop Nagar, Kanpur Nagar is without jurisdiction.”

Thus, allowing the Petition, the Bench issued a writ of Habeas Corpus directing the Superintendent, Government Children Home (Girls), Swaroop Nagar, Kanpur Nagar and the Chairman, Child Welfare Committee, Kannauj to release the first petitioner. “The corpus, i.e., the petitioner no. 1 is free to go wherever she likes and to stay with whomsoever she wants including the petitioner no. 2”, it ordered.

Cause Title: Smt Rohini and another v. State of U.P. and 4 others (Neutral Citation: 2025:AHC:218626-DB)

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