Section 75 JJ Act provides for punishment for cruelty to a child if the person having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering.

Justice Jobin Sebastian observed that the offence was not attracted since the father was not in actual charge of or in control over the child:

“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 mother of a teenage boy had given a private complaint before the magistrate alleging that the petitioner, the boy's father, abandoned him and neglected to provide for his care and maintenance. The magistrate forwarded the complaint to the police and a crime was registered, followed by a final report alleging commission of offence under Section 75 JJ Act.

Aggrieved, the father approached the High Court invoking its inherent jurisdiction under Section 482 Cr.PC. (Section 528 BNSS) to quash the final report and further criminal proceedings.

The petitioner contended that his minor son was residing with his wife and they are being maintained out of his income-generating assets. He argued that he cannot be said to have neglected to maintain the child or prosecuted for the offence under Section 75 JJ Act. His wife opposed the petition and pointed out that his failure to provide for the basic needs and maintenance of the child cannot be taken lightly.

After hearing the parties, the Court examined the ingredients of Section 75 JJ Act, which include having actual charge of or control over the child. Adverting to the facts of the case, it was noted that at the relevant time, the child was residing with his mother while the petitioner was working abroad.

The Court also took note of the fact that there was no material to indicate that the petitioner he was in actual control over or in change of his son. It, therefore, opined that the ingredients of the offence were not made out against the petitioner.

The Court thus allowed the plea and quashed the proceedings against the petitioner.

Case No: Crl.MC No. 4321 of 2020

Case Title: U v. State of Kerala and Ors.

Citation: 2026 LiveLaw (Ker) 469

Counsel for the petitioner: Shaijan C. George, Sajitha George

Counsel for the respondents: Navas V.A. – Senior Public Prosecutor, K. Shaj, Sajju S., Beena N. Kartha, Ren Shibu, Shehroon Patel A.K., Issac Melvin B.O., Alvin Joseph, Riya Philo Johnson, Sajie Shankar, Gishma P.S., Mary Helen A.G., Ishma T.B., Febin Fathima, Megha K. Xavier – Senior Public Prosecutor

Click to Read/Download Order