Father Working Abroad Not in “Actual Charge” of Child: Kerala HC Quashes Section 75 JJ Act Prosecution

Kerala High Court holds that paternal relationship alone cannot satisfy Section 75's requirement of actual charge or control over a child; quashes criminal proceedings against an NRI father whose son lived with the mother.

The High Court of Kerala, sitting at Ernakulam, has quashed criminal proceedings initiated against a Changanassery man charged with cruelty to his minor son under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Justice Jobin Sebastian, sitting singly, held on 11 August 2026 that the essential statutory ingredient of “actual charge of, or control over” the child was absent on the face of the complaint itself — the father was working abroad while the child lived with and was being maintained by the mother. The judgment draws a clear boundary: being a child's father is not the same as having actual charge of that child for the purpose of Section 75, and non-payment of maintenance by an absent father does not, by itself, constitute the offence.

The Case Before the Court

The petitioner, Ummerkutty Nazar, aged 56, of Varambath House, Perunna, Changanassery, Kottayam district, was the sole accused in C.C. No. 940 of 2020 on the file of the Judicial First Class Magistrate Court-I, Changanassery. He was charge-sheeted for the offence punishable under Section 75 of the JJ Act.

The prosecution case, as set out in the charge-sheet, was that Ummerkutty Nazar, being the father of a sixteen-year-old boy and allegedly having actual charge of and control over the child, had abandoned the child and failed to provide for his basic needs and maintenance.

The case originated from a private complaint filed before the jurisdictional Magistrate by the petitioner's wife, Shemimol, who is the third respondent in the quashing petition. The Magistrate forwarded the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. Crime No. 213 of 2020 was registered at Changanacherry Police Station on 22 February 2020, and the final report was filed on 24 June 2020. Ummerkutty Nazar then filed Crl.M.C. No. 4321 of 2020 before the High Court seeking to quash the final report and all further proceedings.

Section 75 of the JJ Act: What the Provision Requires

Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with cruelty to a child. It penalises a person who, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child in a manner likely to cause the child unnecessary mental or physical suffering.

The provision therefore has two cumulative requirements. First, the accused must have had actual charge of, or control over, the child at the relevant time. Second, while having such charge or control, the accused must have committed one of the prohibited acts — assault, abandonment, abuse, exposure, or wilful neglect. Both ingredients must appear from the complaint itself before a prosecution can be sustained.

The petitioner's counsel, Sri Shyjan C. George, argued that even accepting every allegation in the complaint at face value, the first ingredient was simply not made out. The petitioner was working abroad. The minor son was residing with, and being cared for by, his mother, Shemimol. The income-generating assets of the petitioner were being enjoyed by his wife, and the child was being maintained out of the income derived from those assets. Counsel urged that the case had been filed to harass the petitioner and that the final report deserved to be quashed.

The third respondent's counsel opposed the petition, contending that the allegations were serious in nature and that quashing the proceedings would send a wrong signal to society and might encourage others to neglect their children.

How the Court Reasoned

Justice Jobin Sebastian began by restating the well-settled scope of the court's inherent jurisdiction under Section 482 of the Code of Criminal Procedure — which corresponds to Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. That power is extraordinary and is to be exercised sparingly, cautiously, and only to prevent abuse of process or to secure the ends of justice.

One recognised ground for quashing is that the allegations in the complaint, even if taken at their face value and accepted in their entirety, do not disclose the commission of any offence. The court is not to conduct a meticulous examination of evidence, assess the probative value of investigation materials, or undertake a mini-trial at this stage. The enquiry is confined to whether the allegations, on a plain reading, disclose the essential ingredients of the offence alleged.

Turning to the facts, the court noted that the private complaint itself indicated that the petitioner was working abroad. The minor child was residing with and under the care and custody of the petitioner's wife — the very complainant. There was no specific allegation or material to indicate that, at the relevant time, the petitioner was having actual charge of or control over the child.

The court then addressed the core legal question directly: does being a father, without more, satisfy the statutory requirement of “actual charge of, or control over” the child? Justice Sebastian held that it does not. The paternal relationship, by itself, is not enough. There must be material indicating that the accused had actual charge of or control over the child and that, while having such charge or control, he wilfully neglected, abandoned, abused or otherwise subjected the child to the conduct contemplated under Section 75.

The court extended that reasoning to the maintenance angle. 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 JJ Act. The statutory ingredients of the offence, the court said, cannot be expanded merely on the basis of the relationship between the accused and the child.

On the materials available, even taken at face value, the essential ingredient of actual charge or control over the child at the relevant time was absent. Without that ingredient, the prosecution under Section 75 could not be sustained.

Outcome

The High Court allowed Crl.M.C. No. 4321 of 2020. All further proceedings against Ummerkutty Nazar — as the accused in C.C. No. 940 of 2020 pending before the Judicial First Class Magistrate Court-I, Changanassery — for the offence punishable under Section 75 of the JJ Act, stand quashed. The order was passed on 11 August 2026.