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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2
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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3
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 prosecutrixwas 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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4in 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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5hand 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 thequestion 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 havealso 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 by05/12/2017 23:05:02 :::HCHP
6the 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 theprime 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 husbandwho 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 toact as her guardian for reasons other
than his minority. We also have to give
due weight and consideration to thepreference indicated by Poonam. She
has refused to live with her parentsand has categorically expressed her
desire and wish to live with herhusband, 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 at05/12/2017 23:05:02 :::HCHP
7Nirmal 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 aprecedent 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 wouldbe 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 freewill. This cuts through the case of
kidnapping and insofar as the offence
punishable under section 376 IPC isconcerned, the present case falls
under the exception to section 375inasmuch as Poonam is Jitender’s wife
and she is above 15 years of age. Theallegation 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 of05/12/2017 23:05:02 :::HCHP
8a 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 marriageswhere parents force their children and
particularly their daughters to get
married at very young ages but alsothose marriages which are contracted
by the minor or minors themselves
without the consent of their parents.
Are both these kinds of marriages tobe 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 theminor of his or her own accord enters
into matrimony, either by running
away from home or by keeping thealliance secret. The former kind is
clearly a scourge as it shuts out thedevelopment 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%05/12/2017 23:05:02 :::HCHP
9of 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 ofobjects 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 burgeoningof cases of missing daughters and
married daughters detained by their
parents. It is a serious societal
problem having civil and criminalconsequences. In countries like USA
and Canada also there is the problem
of teenage marriages. There manystates have recognized teenage
marriages provided the boy and girlare 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 tradition05/12/2017 23:05:02 :::HCHP
10bound 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 theirown. The latter may have been
occasioned by aping the West or the
effect of movies or because of theindependence that the children enjoy
in the modern era. Whatever be the
reason, the reality must be accepted
and the State must take measures toeducate the youth that getting
married early places a huge burden on
their development. At the same time,
when such marriages to occur, theymay require a different treatment. The
sooner the legislature examines these
issues and comes out with acomprehensive and realistic solution,
the better, or else courts will beflooded with habeas corpus petitions
and judges would be left to deal withbroken 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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11Kumar 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 the05/12/2017 23:05:02 :::HCHP
12petitioner 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 thepetitioner. Since the complainant has
now died and his legal heirs are not
coming to the Court, despite service, itseems 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 bequashed. 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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13
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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