Patna High Court slams magistrate for sending woman to CWC after allowing her return to in-laws: ‘It was a final order’

Background

• The mother of the young woman had lodged a First Information Report (FIR) against certain persons for allegedly taking away her minor daughter.
• The young woman was produced before the Judicial Magistrate, where her statement was recorded and in which she alleged that her father and her father’s friend were pressuring her to marry somewhere else.
• She stated that she had already solemnised her marriage and had started living in her matrimonial home.
• The young woman deposed that she was not kidnapped and also showed her willingness to return to her matrimonial home.
• Before the Judicial Magistrate, the young woman stated that she wanted to go to her matrimonial home with her mother-in-law, which was later allowed by the judge.
• Subsequent to the order allowing the young woman to go to her matrimonial home, an application was filed by the mother of the woman, mentioning that she is a minor.
• While considering her safety and security, the judicial magistrate ordered her to be kept in the custody of the CWC.
• Feeling aggrieved by the order, the mother-in-law then approached the high court.

Arguments

• The counsel for the petitioner submitted that the magistrate’s order was completely illegal as after passing its previous order allowing the young woman to go to her matrimonial home, the magistrate could not have reviewed or recalled the order.
• It was argued that her age was assessed to be 19 years by the magistrate and that she also stated her age to be 19 years, while showing her willingness to lead her life according to her wishes.
• The counsel for the petitioner highlighted that the woman had categorically expressed her desire to go to her matrimonial home and exercise her fundamental right of life and liberty.
• On the other hand, the counsel for the state submitted that the victim is a child in need of care and protection.

Findings

• Once the judicial magistrate had taken the view that the young woman was major and solicited her wishes and she showed her desire to go with the petitioner to her matrimonial home, it was a final order.
• The subsequent order does not show for a moment that the previous order was passed temporarily or was a transient order and final orders were yet to be passed.
• Therefore, however erroneous the previous order, no court is allowed to alter or withdraw it in contravention of the provision under Section 362 of the Criminal Procedure Code/Section 403 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), both of which state that the court is not to alter its judgment.
• Once the woman was held to be a minor and allowed to go to her matrimonial home with the petitioner, overturning the said order and allowing her custody to the CWC without serving any notice to her or the petitioner is against the principles of natural justice.
• If the court was inclined to pass orders against the petitioner or the young woman, it was duty-bound to serve a notice to them, and not serving such notice makes the order of the judicial magistrate bad in the eyes of the law and therefore unsustainable even on this ground.
• The impugned order is not sustainable due to manifest illegality.
• No hesitation in interfering in the matter under the extraordinary jurisdiction of the court to set aside the wrong perpetrated by a judicial order.
• If the court concerned feels that there needs to be proper adjudication with regard to the determination of age, it can pass appropriate orders, but only after giving the opportunity of a hearing to the victim.