Delhi HC appoints a Welfare Officer as Guardian ad litem (GAL) to look after a Minor Girl raped by her brother; [Read Judgment]
Delhi High Court recently appointed a welfare officer to look after a 16 year girl allegedly raped by her brother. The Bench was hearing a writ petition filed by the father of the victim- girl under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking a direction to release her from Paripurna Jeevan Shelter Home.
According to the Petitioner, his daaughter was missing from her house w.e.f. 17.3.2015. An FIR was lodged under Section 363 of the Indian Penal Code at Police Station Chanakya Puri. The police found that the girl was raped by her brother . She was produced before the Child Welfare Committee at Mayur Vihar in the month of March, 2015. Since then, the minor daughter has been housed in Paripoorna Jeevan Homes. The petitioner has sought her release being the natural guardian.
The Welfare Officer and Support Person, who have counseled the minor daughter of the petitioner, submit that the minor daughter of the petitioner should be handed back to the petitioner, however, with certain conditions. The Court appointed Ms.Somy Harshan, Welfare Officer, as a guardian ad litem for the minor daughter of the petitioner. The Court found support from 'The UN Model Law on Justice in matters involving Child Victims and Witnesses of Crime' wherein Guidelines for recording of evidence of vulnerable witnesses in criminal matters have been formulated to enable them to give their best evidence in criminal proceedings. Paras 15 and 16 of the guidelines provide for 'Appointment of Guardian ad litem' and 'Duties of Guardian ad litem', respectively, read as under:
"15. Appointment of Guardian ad litem.-
The Court may appoint any person as guardian ad litem as per law to a witness who is a victim of, or a witness to a crime having regard to his best interests after considering the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of bar / practicing advocate, except a person who is a witness in any proceeding involving the child.
- Duties of guardian ad litem:
It shall be the duty of the guardian ad litem so appointed by court to:
(i) attend all depositions, hearings, and trial proceedings in which a vulnerable witness participates.
(ii) make recommendations to the court concerning the welfare of the vulnerable witness keeping in view the needs of the child and observing the impact of the proceedings on the child.
(iii) explain in a language understandable to the vulnerable witness, all legal proceedings, including police investigations, in which the child is involved;
(iv) assist the vulnerable witness and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved;
(v) remain with the vulnerable witness while the vulnerable witness waits to testify;"
- Additionally, as per guideline no.17, a vulnerable witness would be entitled to legal assistance.
Relying on the above Guidelines, the Bench held as follows;
“Having regard to the facts of the present case, taking into consideration the submission made by counsel for the parties and in view of the Guidelines for recording of evidence of vulnerable witnesses in criminal matters, we direct that the custody of the minor daughter of the petitioner shall be handed over to the petitioner forthwith, however, having regard to the guidelines for recording of evidence of vulnerable witnesses in criminal matters, more particularly guidelines no.15 and 16, which are reproduced in the paragraphs aforegoing, we appoint Ms.Somy Harshan, Welfare Officer, as a guardian ad litem for the minor daughter of the petitioner. Ms.Somy Harshan would be entitled to take all necessary steps to safeguard the interest of the minor daughter of the petitioner. She would be guided by Rule 16 of the aforestated guidelines. In view of Guidelines no.17, we authorise Ms.Somy Harshan, guardian ad litem, to approach the Delhi High Court Legal Aid Society for legal assistance for the minor daughter of the petitioner. We are also informed that an NGO being 'Counsel to Secure Justice' is providing legal assistance to the daughter of petitioner. We further direct the parents of the minor daughter to permit and grant free access to the minor daughter to visit a counselor once in every two weeks for a period of two months and thereafter once in a month or as and when the child deems proper”.
Read the Judgment here.