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Donating daughter to a Baba held illegal as daughter not a property : Bombay High Court

The issue whether a father can legally donate his girl child to a Baba by executing a Danpatra was before consideration of a bench of Bombay High Court consisting of Justice Vibha Kankanwadi in the matters between Shankeshwar @ Shambhu s/o Bhausaheb Dhakne and Anr. v. State of Maharashtra & Anr.BA-1366-2021 and 1345-2021 decided on 3.1.2022.

The facts of the case are that two accused had raped a minor girl child in a garden of the temple stay where she used to live with her father as disciples of a Baba for over a decade.The victim reported the incident and both the accused were arrested.Therefore, an application for bail was moved in this court.

The counsels for the applicant contended that In their application, the applicants stated that the girl had filed a lawsuit against them under the influence of the ‘Baba’ residing with the girl and her father. It is alleged that the father and his followers will use drugs and intoxicants and involve the youth in the neighborhood. It is stated that the village held a Gram Sabha where the decision was taken to remove Baba with his disciples from the temple buildings along with the victim girl for influencing the youth in the village to consume narcotic drugs. They claimed they were inadvertently involved in the case because they supported the decision to eliminate Baba.

The counsels for the respondent contended that the girl filed a FIR under the provisions of IPC and  POCSO Act after the girl filed a complaint with the police and raped her by outraging the her modesty. Judge Kankanwadi released both defendants on bail based on the filing of the indictment, implying that the investigation was complete and thus the applicants did not need to be detained. In the donation agreement, the court asked the victim’s father to explain his position in a statement. After much delay, the Court noted that the person presenting the affidavit was not the person identified in the criminal complaint as the victim’s father. It was noted that after the girl’s mother died, her father gave the girl up for adoption in 2018, who signed the declaration and was executed but the process has not yet been followed. The father’s lawyer was also unable to explain why a document called ‘Danpatra’ was executed.

The Bombay High Court held that the act of a father who “donated” his daughter to a father while hearing a bail request from the defendant who sexually abused the 17-year-old is completely illegal. The court stated that the girl child is not a property that can be donated. Considering the actions of the girl’s father while performing “Danpatra”, it can be said that this Court should intervene. Considering the future of the girl and this should not be referred to any illegal activity, the Court instructed the Child Welfare Agency to investigate the girl expeditiously and ascertain if she was fit for being declared a child in need of care and protection.

Click here to read the judgement

Judgement reviewed by Bhaswati Goldar

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