SYNOPSIS OF EVENTS.

A] Before Renunciation: Priyal Ashok/ (alias Santosh) Bagircha (alias Jain)

After Renunciation: SadhviShree Preetivarsha shreeji Maharaj aged 12.

One of three Children of Ashok (santosh) and Seema Bagircha, residents

of Indore, M.P. Has 2 siblings, brother and a Sister. Was tutored at home;
Parents run a sweets shop.
Had been staying for 2 years with Mangalguna Sadhviji Maharaj prior to
her renunciation and thereafter desired to undertake renunciation (Diksha)
as a disciple of Nirmalguna sadhviji maharaj at the age of 8, obtained the
approval of guru and parents for renunciation.

Her Gurus being in Mumbai, in the year 2004, her diksha function was
held in mumbai amidst the presence of numerous persons in the auspices
of Acharya Shree Nadhivardhan Sagar Suri and Acharya Shree
Harshsagar suri with the blessings of their Gachhadhipati (principal head
of Sagar gachha (group) Shree Suryodaysagar Suriji Maharaj.

As per the rules in jain religious Scriptures, the Diksha was held in public
presence with the approval of her parents. She herself happily approves of
her Diksha.

B] To stop this Diksha, an unknown person called upon an institution called

„childline‟ its members came into the place where the ceremony was being
performed and tried to stop it by police intervention. However, the police
did not intervene.
Childline complained to CWC (child Welfare Committee) stating that the
girl taking diksha is exploited, is left to herself, is begging for a living, and
by stating such other imaginary clauses, requested custody of the child.
CWC filed a notice.
This order was challenged in writ petition no. 1853 of 2004, challenging
jurisdiction. The honorable Bombay High court in the order had directed,
the Respondent no.1, CWC to decide on two preliminary issues namely
1. Territorial Jurisdiction
2. Jurisdiction as to subject matter.

CWC ruled that it had both jurisdictions under sec. 31(1) & 32.

Hence , the present writ petition no. 3159 of 2006

In the midest of the proceedings on 11/9/2008 the Hon. High court

constituted a committee to interview the child and submit the report.
C] The high court appointed committee questioned her in person and in
solitude about her lifestyle prior to and post renunciation. They questioned
her about her prerenunciation family, her education, her daily routine, play
and games, etc.
The report submitted by the committee concluded that she was too young
to consequences thereof. Her answers seemed tutored to them. They
found her to be quite intelligent and capable of shining out in education,
but devoid of that right because of staying in this environment. They
considered her good health being a result of this ongoing case.

D] it seems that the rational replies made by her were applied by the
committee to suit their own prejudice

In this proceeding on 11th September 2008, these observations were

made by the presiding judges.

E] 4. “……Prima facie , We feel that the child at the tender age of eight
years cannot take an independent decision as to what it right and what is
wrong and even if a child enters into a commercial contract or agreement,
such contract or agreement are treated as void. Even under the penal law,
there are special provisions for a child accused……”

5. “……however, in our view, at the age of eight years and without

understanding the consequences of her action, if she is being allowed
to renounce the world, the court cannot sit as silent spectator ignoring
the fact a girl child at the tender age has been allowed to renounce the
world. The Court is the ultimate guardian of minor and if a minor is
deserted by legal guardians, the Court is required to see the welfare of
the minor and the interest of the minor. The paramount consideration
of the court is the welfare of the child and the child in question is still
minor today as she is now aged about 12 years, as pointed out by both
the learned counsel. Mr.Sathe has further submitted that it is for the
legislature to enact appropriate law prohibiting such thing and in the
past an Act was enacted prohibiting a lady to become sati after the
death of her husband. Unless a law is enacted in this behalf, parent
can allow the minor child to become Sadhu/Sadhvi. However, at the
same time, we cannot ignore the fact that when a problem of a minor
child is before the Court, it is the duty of the Court to delve into the
matter and find out whether the child was in a position to understand
the consequences of the decision taken by such child and whether it is
in the best interest of the minor…..”

These observations of the judges has alerted many others.

Hence, other parties have now sought to intervene in the matter
These observations are also the basics of our consideration.
Another such matter came up in the Udaipur Court in the year 2007,
where the plea was filed against baldiksha under the same act viz.,
Juvenile justice Act, 2000, clauses 23 and 24.

The judge Shree Brajendra Kumar Jain, Chief Magistrate, Udaipur has
done a brilliant analysis of the matter and very well judged that this case
has no merit.

The synopsis of his judgment is as follows:

The principle issue in this case is whether a crime has been committed
under clause 23, 24 of juvenile Justice (care and protection) Act,2000.

Clause 23 says that if someone exploits a child, discards him/her or

ignores him/her or gets someone to do so, he would be guilty under the
said act. There is no such guilt in this case. This is because for a crime to
be committed in such a case it is necessary that the child is under the
control or protection of the guilty person and he either hurts the child or
discards him with the intention of causing physical or mental hurt. Diksha
is given with the approval of the child and his/her parents. It is true that in
diksha the child has to discard his/her home and stay in the auspices of
and in company of his/her Guru. But this discarding is different from the
one mentioned in clause 23. The genesis of clause 23 is when someone
discards a child under his care and protection and intentionally leaves him
devoid of any auspices, care and shelter.
In this case, there is neither such act not any such intention.
If as a result of following one‟s religious practices, a person having
undertaken diksha does some act which causes him to endure pain, even
then that pain cannot be put in the category of clause 23.
The definition of pain and happiness is subjective and each person
individually determines the same in view of his wishes and purview of his
knowledge. It is possible that in the eyes of the complainants, pain
constitutes walking barefooted, eating before sunset, and lack of playing,
entertainment and pleasure trips. But it is not compulsive for everyone to
think so. If any one person does so of his own approval, it is for him to
decide the boundaries of pain, none other has the right to do so. Similarly,
plucking of head hair is not cruelty because it is religious rite. If this is
considered as cruelty, then the piercing of the ears and nose of young
children by various Indian religious folks for religious initiation would also
be in the league of cruelty. But that is not so, a person performs such acts
in accordance with his religious beliefs and practices.
Hence there is no crime under clause 23 of this act.

Clause 24 is about engaging a child under one‟s charge to beg.

Clause 2(b) defines begging as- to beg in a public place or to enter a
private property for the purpose of begging or to beg by show of a wound
or disease of one‟s own self or someone else or that of an animal.

It cannot be said that a Jain Sadhu or a child in diksha indulges in the

begging of above meaning or description. The intake of food by Jain
Sadhus or child sadhus is as per the their religious traditions. It is
accepted by the complainants also that the ones undertaking diksha are
taught Jain religious philosophies, scriptures and also morality. Thus, to
inculcate a child in a congregation engaged in such religious activities
cannot be put in the league of “engaging him in begging”

It is important to understand the preamble of any regulation or act. The

objectives talk of care, protection, help, development and re-establishment
of children keeping in view the intentions, objectives and preamble of the
act, it is nowhere found that child –diksha is against its provisions.
It is clear that the diksha given to the children by their parents was done in
a celebration ceremony in the presence and auspices of the members of
their religion. All these acts were performed as a right to practice religion.
Provisions of article 25 of the Constitution give the right to freedom of
religion and conscience. No person or act can restrict another person
from this fundamental right.

In AIR 1954 282, it is stated as a definition of religion that, religious

freedom is not restricted only to philosophical faith. It also includes every
act performed as a practice of religion. It also includes karma, religious
acts, culture and puja worship. All these are in integral part of the religion.
In the light of this definition and that of article 25, diksha is a religious
practice of jains and an integral part of jain religion. Each person, minor or
major has the fundamental right to practice his religion. Thus if any minor
is taking diksha, he is exercising this fundamental right and he cannot be
stopped from doing so by any act and this guarantee is given to him by
article 25 of the Constitution of India.
Also, the Rajasthan High Court has held in RLW1997 Vol I p 421 that
Diksha of a minor is not irrational or unreligious and that such diksha has
no adverse effect on civil administration, morality or health. It is absolutely
constitutional.

When the constitution approves of it, the Hon Rajasthan High Court has
termed it as constitutional and the Hon. Supreme Court has maintained
that it is an integral part of Religion, then such act cannot be put in the
league of crime. We do not agree that these four are minor and thus their
approval is immaterial. It cannot be said that in no case the approval of a
child below 18 years of age is of importance. For e.g., under clause 41 (5)
regarding provisions of adoption, it is clearly maintained that the approval
of the child being adopted is necessary for adoption and if a child has
capacity to understand and express his wish of approval, then such
adoption is considered legal. It cannot therefore be concluded that in
every case the approval of a child under the age of 18 is not important. It
all depends on the capacity and mental progress of the child, there is no
restriction of age in this case. If the child understands his consent, then in
the light of above, such consent is considered is legally approved.
Diksha is not a new thing in India. It is an integral part of Indian Culture
and in all religious; it has been given since times immemorial. Diksha has
no age bar, whenever there is strong dis-attachment towards worldly
matters, diksha can be taken. It cannot be restricted by age.
 CHILD SANYAS

 An issue of a Jain Religion and Jain Community, which is in minority

in State and Centre.

 Child Sanyas is an integral part of Jainism with history and tradition

(of Child Sanyas)

 A Sanyasi in legal term is “Civil Dead” and so is not a part of society

in general but an Analogous Religious family and so is not a Child in
conflict with law or in need of Care and Protection.

 A Sanyasi does not fall in category of Juvenile Child and so CWC has
no right to intervene.

 The UNCRC supports the child’s spiritual growth development and

way of life of his own’s choice. As an individual and in religious
group through different articles.

 The Articles 25, 26 of Constitution Supports & Protects the

individuals for Religious believe and acts.

 The government’s involvement in Religious freedom of religion is not

expected and entertained by constitution.

 CWC is a government body allegating the parents of a child for

violation of articles of UNCRC wrongly, without knowledge of
Religious Rights of Jains.

 The age and competency level of Sanyasi (to-become) are mentioned

in Religious Scriptures before thousand of years.

 The care and protection of a Sanyasi is undertaken by the Jain

Religious Institutions, the Jain community as a whole because of their
wandering life.

 When a child opts for a religious way of life with his / her own will
with the consent of parents or guardians and are duly accepted by the
spiritual school of Sanyas Ashram and its religious leaders after
seeing the competency of child through different test for his / her
spiritual growth. How can a government body interfere in the name of
Juvenile Act ?