Amit Rangra vs State Of H.P. & Anr on 1 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MMO No. 412 of 2017.

.

Date of decision: December 01, 2017.

Amit Rangra ……Petitioner.

Versus
State of H.P. anr. …..Respondents.

Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1Yes.

For the petitioner : Mr. Vijay Kumar Arora, Advocate.

For the respondents : Mr. M.A. Khan, Addl. AG for respondent
No. 1.

Mr. Dinesh Thakur, Advocate, for
respondent No. 2.

Dharam Chand Chaudhary, J. (Oral)

The present again is a case where the petitioner and

respondent No. 2 being classmates were in love with each other.

They even had physical relations also well before their marriage.

Subsequently, on account of opposition of parents of respondent

No. 2-complainant certain differences cropped up amongst them

which seem to have led blaming each other including the alleged

threatening by the petitioner to post nude photos of respondent

No. 2-complainant on Social Media. It is under these

1
Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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circumstances FIR Annexure P-1 came to be registered at the

instance of respondent against the petitioner.

.

2. Now the petitioner and respondent No. 2 had

solemnized marriage with each other. The FIR came to be

registered against the petitioner as the parents of respondent

No.2-complainant were not in favour of her marriage with him.

Now both are living as husband and wife. Respondent No.2-

complainant as per her statement recorded separately is no

more interested to prosecute the case registered at her instance

against her husband-the petitioner. Being so, in the changed

circumstances, no fruitful purpose is likely to be served to allow

the criminal proceedings launched against the petitioner to

continue. Any such efforts rather would tantamount to misuse

of process of law.

3. Interestingly enough, the petitioner and respondent

No. 2 both are major being 24 years of age. In the changed

circumstances and they have solemnized marriage with each

other allowing the criminal proceedings initiated against the

petitioner-husband neither is in his interest nor in the interest of

respondent No.2-complainant. They both are major, hence

competent to take decision for them. The FIR Annexure P-1 is

upshot of opposition of her parents to the marriage. This Court

in Shishu Pal versus State of H.P. others and its connected

petition in a situation when the complainant -prosecutrix was

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minor, while placing reliance on the judgment of Delhi High Court

in Jitender Kumar Sharma versus State of Another, 2010 (4) Civil

.

Court Cases 432 (Delhi) (DB) has held that on solemnization of

the marriage by the complainant with the accused allowing the

criminal proceedings to continue would be nothing but an abuse

of process of law. This judgment reads as follow:

“9. In the light of the given facts and

r to
circumstances, irrespective of the prosecutrix

was below 18 years of age on the day of her

elopement in the company of accused

petitioner Shishu Pal and solemnization of

marriage with him, in the considered opinion of

this Court the present is a case where the FIR

registered against the accused-petitioner and

his co-accused and also consequential criminal

proceedings deserves to be quashed for the

reasons that no useful purpose is likely to be

served by allowing the same to continue as the

prosecutrix and the accused-petitioner Shishu

Pal are happily married with each other and

living in complete harmony and peace in the

matrimonial home. The complainant is also

satisfied with the cordial relations of the

couple. Initial anguish was somewhat natural

for the reason that in our society inter-caste

marriages are still not accepted. The present,

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in the given facts and circumstances, is a case,

where allowing the criminal proceedings

.

against the accused petitioner to continue

would amount to abuse of process of law for

the reason that if the investigation conducted

in the matter and evidence collected is taken

as it is, the criminal case is not going to end

with the conviction of the accused-petitioner

because the prosecutrix and for that matter

her father, the complainant may also not

support the prosecution case. While arriving

at such conclusion, this Court finds support

from the judgment of a Division Bench of Delhi

High Court in Jitender Kumar Sharma versus

State Another, 2010 (4) Civil Court cases 432

(Delhi) (DB). As a matter of fact, the facts in

Jitender’s case were identical to that before

this Court because in that case also the age of

the prosecutrix was 16 years whereas that of

the accused 18 years. They having fallen in

love, eloped together and got married, as per

Hindu rites and customs in a temple. After

registration of the case, the custody of the

prosecutrix was entrusted to an NGO, namely

‘Nirmal Chhaya’, however, the Division Bench

seized of the matter deemed it appropriate to

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hand over her custody to her husband, the

accused, irrespective of he was also minor

.

aged 18 years. The Division Bench in that

case had also taken into consideration the

fundamental right to ‘life’ and ‘liberty’

guarnted by Article 21 of the Constitution of

India and also the provisions contained under

the Hindu Marriage Act 1955 as well as Child

Marriage Restraint Act, 1929 and the

provisions contained under Section 6 of Hindu

Minority and Guardianship Act, 1956 and held

as under:-

“22. A reading of the 1890 Act and

the 1956 Act, together, reveals the
guiding principles which ought to be
kept in mind when considering the

question of custody of a minor Hindu.

We have seen that the natural

guardian of a minor Hindu girl whose
is married, is her husband. We have

also seen that no minor can be the
guardian of the person of another
minor except his own wife or child.

Furthermore, that no guardian of the
person of a minor married female can
be appointed where her husband is
not, in the opinion of the court, unfit to
be the guardian of her person. The
preferences of a minor who is old
enough to make an intelligent
preference ought to be considered by

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the court. Most importantly, the
welfare of the minor is to be the

.

paramount consideration. In fact,

insofar as the custody of a minor is
concerned, the courts have
consistently emphasized that the

prime and often the sole consideration
or guiding principle is the welfare of
the minor.

23. In the present case, Poonam is
a minor Hindu girl who is married. Her
natural guardian is no longer her
father but her husband. A husband

who is a minor can be the guardian of

his minor wife. No other person can be
appointed as the guardian of Poonam,
unless we find that Jitender is unfit to

act as her guardian for reasons other
than his minority. We also have to give
due weight and consideration to the

preference indicated by Poonam. She
has refused to live with her parents

and has categorically expressed her
desire and wish to live with her

husband, Jitender. Coming to
Poonam’s welfare which is of
paramount importance, we are of the
view that her welfare would be best
served if she were to live with her
husband. She would get the love and
affection of her husband. She would
have the support of her in-laws who,
as we have mentioned earlier,
welcomed her. She cannot be forced
or compelled to continue to reside at

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Nirmal Chhaya or some other such
institution as that would amount to her

.

detention against her will and would

be violative of her rights guaranteed
under article 21 of the Constitution.
Neetu Singh’s case (supra) is a

precedent for this. Sending her to live
with her parents is not an option as
she fears for her life and liberty.

24. As regards the two FIRs which
have been registered are concerned,
we are of the view that continuing
proceedings pursuant to them would

be an exercise in futility and would not

be in the interest of justice. Poonam
has clearly stated that she left her
home on her own and of her own free

will. This cuts through the case of
kidnapping and insofar as the offence
punishable under section 376 IPC is

concerned, the present case falls
under the exception to section 375

inasmuch as Poonam is Jitender’s wife
and she is above 15 years of age. The

allegation of criminal intimidation is
also not sustainable at the outset.
Hence, FIR No. 110/2010 u/s 363/376
IPC and FIR No. 177/2010 u/s 363/506
IPC (both of PS Gandhi Nagar, New
Delhi) and all proceedings pursuant
thereto are liable to be quashed. Since
Jitender is less than 18 years of age,
even the offence under Section 9 of
the Prohibition of Child Marriage Act,
which provides for the punishment of

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a male adult above 18 years of age, is
not made out.

.

25. Before we conclude, we would

like to point out that the expression
‘child marriage’ is a compendious one.
It includes not only those marriages

where parents force their children and
particularly their daughters to get
married at very young ages but also

those marriages which are contracted
by the minor or minors themselves
without the consent of their parents.
Are both these kinds of marriages to

be treated alike? In the former kind,

the parents consent but not the minor
who is forced into matrimony whereas
in the latter kind of marriage the

minor of his or her own accord enters
into matrimony, either by running
away from home or by keeping the

alliance secret. The former kind is
clearly a scourge as it shuts out the

development of children and is an
affront to their individualities,

personalities, dignity and, most of all,
life and liberty. As per the 205th
Report of the Law Commission of
India, February 2008, child marriages
continue to be a fairly widespread
social evil in India and in a study
carried out between the years 1998 to
1999 on women aged 15-19 it was
found that 33.8% were currently
married or in a union. In 2000 the UN
Population Division recorded that 9.5%

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of boys and 35.7 % of girls aged
between 15-19 were married [at p.15

.

of the Report]. Such practices must be

rooted out from our social fabric. In
the law commission reports on the
subject as well as in the statements of

objects and reasons behind the Child
Marriage Restraint Act, 1929 and now
the Prohibition of Child Marriage Act,

2006, the apparent target seems to be
these unhealthy practices. However,
we have, in our experience in the
present bench, noticed a burgeoning

of cases of missing daughters and

married daughters detained by their
parents. It is a serious societal
problem having civil and criminal

consequences. In countries like USA
and Canada also there is the problem
of teenage marriages. There many

states have recognized teenage
marriages provided the boy and girl

are both above 16 years of age and
the minor has his or her parents’

consent. In some cases, consent and
approval of the court is also required
with or without the consent of the
parents. Where the minor girl is
pregnant, the marriage is usually
permitted. There is a distinction
between the problem of child
marriages as traditionally understood
and child marriages in the mould of
teenage marriages of the West. India
is both a modern and a tradition

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bound nation at the same time. The
old and evil practices of parents

.

forcing their minor children into

matrimony subsists alongwith the
modern day problem of children falling
in love and getting married on their

own. The latter may have been
occasioned by aping the West or the
effect of movies or because of the

independence that the children enjoy
in the modern era. Whatever be the
reason, the reality must be accepted
and the State must take measures to

educate the youth that getting

married early places a huge burden on
their development. At the same time,
when such marriages to occur, they

may require a different treatment. The
sooner the legislature examines these
issues and comes out with a

comprehensive and realistic solution,
the better, or else courts will be

flooded with habeas corpus petitions
and judges would be left to deal with

broken hearts, weeping daughters,
devastated parents and petrified
young husbands running for their lives
chased by serious criminal cases,
when their ‘sin’ is that they fell in love.

10. Therefore, in Jitender Kumar’s case

supra, the FIR registered under Section 363,

366 and 376 was ordered to be quashed and

the couple i.e. accused-petitioner Jitender

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Kumar and prosecutrix, irrespective of

minors were allowed to live as husband and

.

wife in the company of each other. In similar

set of facts and circumstances, the apex

Court in S. Varadarajan versus State of

Madras, AIR 1965 Supreme Court, 942, has

concluded that no case under Section 363

and 366 is made out against the accused.

11. Even a co-ordinate Bench of this Court

in a recent judgment in Cr.MMO No.113 of

2016 titled Rajinder Singh versus State of

H.P. Others decided on 29.3.2017 in an

identical case where the prosecutrix,

belonging to a higher caste abandoned the

company of her parents to join the company

of her husband, the accused petitioner and

solemnize marriage voluntarily with him, the

Court after taking into consideration the law

laid down by the apex Court has held as

under:-

“12. Thus, taking into consideration
the averments and law, as discussed
hereinabove, I find that the interest of
justice will be met, in case, the
proceedings are quashed, as the
parties are living a peaceful life and
the fact that proforma respondent No.
4, Sita Devi has married to the

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petitioner with her own consent,
Marriage Registration Certificate

.

(Annexure P-2), to this effect is duly

placed on record. The allegation, as
made in the FIR, does not disclose the
commission of any offence against the

petitioner. Since the complainant has
now died and his legal heirs are not
coming to the Court, despite service, it

seems that they do not want to
continue the criminal proceedings
against the petitioner.

13. Accordingly, I find this case to

be a fit case to exercise powers under

Section 482 of the Code and
accordingly F.I.R No. 277 of 2009,
dated 09.10.2009, under Sections 363,

366 and 506 of the Indian Penal code,
registered at Police Station, Manali,
District Kullu, H.P., is ordered to be

quashed. Since F.I.R No. 277 of 2009,
dated 09.10.2009, under Sections 363,

366 and 506 of the Indian Penal code,
registered at Police Station, Manali,

District Kullu, H.P., has been quashed,
consequent proceedings/Challan
pending before the learned Judicial
Magistrate 1st Class, Manali, District
Kullu, H.P. against the petitioner, are
thereby rendered infructuous.
However, the same are expressly
quashed so as to obviate any
confusion.”

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4. In view of what has been said hereinabove, this

petition succeeds and the same is accordingly allowed.

.

Consequently, FIR No. 11 of 2017 registered against the

petitioner at the instance of respondent No. 2 in Women Police

Station, Dharamshala District Kangra is quashed and set aside.

The pending criminal proceedings, if any, shall also stand set

aside.

5. The petition is accordingly disposed of. Pending

application(s), if any, shall also stand disposed of.

(Dharam Chand Chaudhary),
Judge.

December 01, 2017,

(vs)

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