Delhi HC allows man to move application before Child Welfare Committee seeking custody of his real sister, who was allegedly sexually assaulted by their step-father
Justices Suresh Kumar Kait & Manoj Jain [22-02-2024]




LE Correspondent


New Delhi, February 28, 2024: The Delhi High Court has asked a litigant seeking custody of his minor sister to file an application before the Child Welfare Committee. The High Court was considering a habeas corpus petition where the victim showed inclination to stay with her real brother and she had also submitted that neither her mother nor her step-father, who sexually abused her, took care of her.


The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a petition filed under Article 226 of the Constitution of India read with Section 482 Cr.P.C. in the form of Habeas Corpus seeking directions to the respondents to produce petitioner’s minor sister Miss A and to handover her custody to the petitioner.The girl’s real brother was seeking her custody on the ground that she was in confinement of shelter home and was deprived of her study, growth and betterment.


It had been averred in the present petition that on the complaint of Miss A, aged 15 years, studying in 6th class, an FIR under Sections 376/354-B IPC and Section 6 POCSO Act was registered against her step-father. She had alleged that in the first week of December, 2023, when her mother had gone to hospital to see her aunt, he had sexually assaulted her. She further alleged that the similar incident had happened earlier also for 2-3 times when her mother was out for work.


It was noted in the status report that during investigation of the case, the victim was examined before DCW Counsellor and was sent for medical examination. In her MLC, the victim levelled allegations of physical violence and assault against her step-father. Her statement under Section 164 Cr.P.C. was recorded wherein she supported her previous version. On her complaint, her step-father was arrested and was sent to judicial custody. The victim Miss A was sent to shelter home and since then she was living there.


The petitioner had undertaken that he was capable of maintaining his sister and to fulfil her educational and other requirements, and if her custody was handed over to him, he would take care of any exposure to her step-father.


The Bench took note of the fact that the victim Miss A submitted in the Court that neither her mother nor her step-father, who had sexually abused her and wasbehind bars, took any care of her and, therefore, she would like to stay with her real brother, i.e. the petitioner.


Referring to the judgment of the Top Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari [LQ/SC/2019/841]wherein it has been held that Habeas Corpus proceedings is not to justify or examine the legality of the custody of the child, the Bench said, “In the given facts, it seems to us that welfare of Miss A would be to live with her sibling.”


It was noticed that the victim Miss A is aged 15 years and has shown her willingness to stay with her real brother. “In the facts of the present case, when victim Miss A has raised serious allegations of sexual assault upon her step-father, due to which she has been forced to live in shelter home, sacrificing her educational and her normal well-being; liberty is granted to the petitioner to move an application before CWC-II, Lajpat Nagar, New Delhi seeking custody of Miss A and on receipt of the same, the CWC may consider grant of custody of Miss A to petitioner in accordance with law”, the Bench held while disposing of the petition.

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