Can a father face a criminal cruelty case under the Juvenile Justice Act merely for allegedly not paying maintenance to his child? The Kerala High Court has clarified when such prosecution cannot legally continue.

ERNAKULAM: The Kerala High Court has quashed criminal proceedings against a father who was prosecuted under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 over allegations that he abandoned his teenage son and failed to provide for the child's basic needs and maintenance.

Justice Jobin Sebastian held that merely being the father of a child does not automatically satisfy the legal requirement of having actual charge of or control over the child under Section 75 of the JJ Act.

The criminal case arose from a private complaint filed by the mother of the petitioner's 16-year-old son. She alleged that the father had abandoned the child and wilfully neglected to provide for his care and maintenance.

The Magistrate forwarded the complaint to the police for investigation under Section 156(3) Cr.P.C. The police then registered a criminal case and, after investigation, filed a final report alleging an offence under Section 75 of the JJ Act.

The father approached the Kerala High Court under its inherent jurisdiction under Section 482 Cr.P.C., corresponding to Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of the final report and further criminal proceedings.

His counsel argued that he was working abroad and that his son was living with his wife, who had the custody, care and actual charge of the child. It was also argued that the wife and son were being maintained from income-generating assets belonging to him.

The petitioner further contended that he had never assaulted, abandoned or abused his son and alleged that the criminal case had been filed to harass him.

The mother opposed the petition and argued that an allegation against a father for abandoning his child and failing to provide for the child's basic needs and maintenance should not be treated lightly.

The High Court examined the essential ingredients of Section 75 JJ Act. The provision applies where a person having actual charge of or control over a child assaults, abandons, abuses, exposes or wilfully neglects the child in a manner likely to cause unnecessary mental or physical suffering.

The Court found that the complaint itself showed that the father was working abroad, while the child was residing with and under the care and custody of his mother. There was no specific allegation or material showing that the father had actual charge of or control over the child at the relevant time.

The Court observed:

“The mere fact that the petitioner is the father of the child, by itself, would not satisfy the statutory requirement of having actual charge of or control over the child for the purpose of Section 75 of the J.J. Act. There must be material indicating that the accused had actual charge of or control over the child and, while having such charge or control, wilfully neglected, abandoned, abused or otherwise subjected the child to the conduct contemplated under Section 75.”

The Court further added:

“Mere non-payment of maintenance by a father, who is not shown to have actual charge of or control over the child, would not, by itself, attract Section 75 of the J.J. Act. The statutory ingredients of the offence cannot be expanded merely on the basis of the relationship between the accused and the child.”

The High Court also explained that its inherent power to quash criminal proceedings is extraordinary and must be exercised carefully. However, proceedings can be quashed where the allegations, even when accepted at face value, fail to disclose the essential ingredients of the alleged offence.

The Court made it clear that while considering a quashing petition, it cannot conduct a detailed examination of evidence or hold a mini-trial. The question is whether the allegations and available material disclose the basic ingredients required by law.

In this case, the essential requirement of actual charge or control over the child was missing. The Court therefore held that prosecution under Section 75 could not be sustained merely because the accused was the child's father or because non-payment of maintenance was alleged.

Accordingly, the Kerala High Court allowed the petition and quashed all further criminal proceedings against the father.

EXPLANATORY TABLE OF LAWS AND SECTIONS

CASE DETAILS

KEY TAKEAWAYS

• Being a father alone is not enough to prosecute a man under Section 75 of the JJ Act.
• Non-payment of maintenance does not automatically become criminal cruelty against a child.
• The prosecution must show that the father had actual charge or control over the child at the relevant time.
• A matrimonial or maintenance dispute cannot be converted into a criminal case by stretching the ingredients of a penal provision.
• The Kerala High Court ultimately quashed the criminal proceedings against the father because the essential ingredients of Section 75 were missing.