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Shalini @ Janvi And Another vs State Of U.P. Thru Prin. Secy. Home … on 5 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Court No. – 1

Case :- MISC. BENCH No. – 34035 of 2018

Petitioner :- Shalini @ Janvi And Another

Respondent :- State Of U.P. Thru Prin. Secy. Home Lucknow And Others

Counsel for Petitioner :- Syed Amir Hasan,Afaq Zaki Khan

Counsel for Respondent :- G.A.,Panna Lal Gupta,Rama Shankar Jaiswal

Hon’ble Ajai Lamba,J.

Hon’ble Rajeev Singh,J.

(Oral)

1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report No. 0003 of 2018, under Sections 363, 366, 372, 504 and 506 Indian Penal Code, Police Station Baskhari, District Ambedkar Nagar.

2. Order dated 28th November, 2018 notices the gist of the issue raised by the petitioners. The order reads as under:-

“1. This petition seeks issuance of a writ in the nature of Certiorari quashing First Information Report No.3 of 2018, under Sections 363, 366, 372, 504, 506 Indian Penal Code, Police Station Baskhari, District Ambedkar Nagar.

2. We have heard learned counsel for the petitioners and Ms. Smiti Sahay, learned counsel for the State.

We have carefully gone through the contents of the impugned first information report.

3. Learned counsel appearing for the petitioners contends that petitioner No.1 willingly got married to petitioner No.2. Petitioner no.1 has not been kidnapped. Offence in her context has not been committed. Evidence of marriage is available on record as Annexures-3 and 4. The marriage, however, has not been accepted by respondent No.4, therefore, in abuse of process of the law and process of the Court, impugned criminal proceedings have been initiated.

4. It has been pleaded that ingredients of Sections 366 and 363 I.P.C. read with Sections 361, 362 Indian Penal Code are not satisfied.

5. We have also taken into account the fact that petition is supported by affidavit of petitioner no.1, Shalini @ Janvi, which would demonstrate that offence of kidnapping/abduction has not been committed.

6. Learned counsel appearing for the petitioner has argued that the case is squarely covered by judgment dated 23.7.2015 passed by this Court in Writ Petition No.3519 (M/B) of 2015: Shaheen Parveen and another versus State of U.P. and others.

7. Issue notice to serve respondent No.4, also through Station House Officer, Police Station Baskhari, District Ambedkar Nagar, returnable on 13.12.2018.

8. List on 13.12.2018.

9. The petitioners shall not be taken in custody, till the next date of listing. The petitioners are directed to join investigation.

10. Investigating officer of the case is directed to ensure that statement of petitioner No.1 is recorded under Section 164 Criminal Procedure Code and she is medically examined.

11. Let counter affidavit be filed.”

3. We have heard learned counsel for the petitioners, Shri Afaq Zaki Khan, Advocate and learned counsel for the State, Ms. F.J. Siddiqui.

Learned counsel for the complainant/respondent no. 4 is not available in Court. Respondent no. 4 has been served.

4. Contention of learned counsel for the petitioners is that petitioner no. 1 got married to petitioner no. 2 of her own sweet will on 13th October, 2017. Marriage certificate has been placed on record as Annexure 3.

We have referred to the certificate. In fact, it is a certificate of registration of marriage issued by Marriage Registration Officer dated 13th October, 2017.

5. It has further been pleaded on behalf of the petitioners that parents of petitioner no. 1, the victim, have been living separately. Mother of petitioner no. 1 solemnized second marriage with one Laukush 15 years back and there are three children from that wedlock.

Father of petitioner no. 1 also solemnized marriage with one Santoshi 15 years back. Out of the wedlock, there are three children.

It has been pointed out in the petition that both the petitioners belong to Scheduled Castes.

6. In para 10 of the petition, it has been stated that on account of second marriage of parents of petitioner no. 1, petitioner no. 1 left her parental house 14 years back and started living with her maternal grand-mother (nani). The petitioners are presently living in District Hisar in Haryana. Respondent no. 4, who is the paternal grand mother (dadi) of petitioner no. 1, has not accepted the marriage and, hence, impugned criminal proceedings have been initiated in abuse of process of the law and process of the Court.

7. Short counter affidavit has been filed on behalf of the Prosecuting Agency in Court, which is taken on record. In the affidavit it has been stated that in the course of investigation medical age of petitioner no. 1 has been determined. Vide Annexure 1, medical age of petitioner no. 1 has been found to be about 16 years.

In the short counter affidavit it has also been stated that statement of petitioner no. 1 was recorded under Section 164 Cr.P.C. The statement has been appended as Annexure-2.

8.We would like to make a detailed reference to the statement of petitioner no. 1/the prosecutrix/the victim recorded under Section 164 Code of Criminal Procedure (Annexure – 2).

In the statement, petitioner no. 1 has stated that she is 18 years of age. Her mother and father have been living separately. Mother has contracted second marriage. When petitioner no. 1 was young, she started living with her maternal grand mother (nani). It is just about three years back that she went to the house of her father.

It has been stated by petitioner no. 1 in her statement recorded under Section 164 Cr.P.C. that her father wanted to sell her for Rs.50,000/- to one Munna. Munna is a resident of Hyderabad. When petitioner no. 1 came to know about this, she went with Anil Kumar who belongs to the same village. On the way, Anil Kumar met her. She left her house on 11th September, 2017 at about 12:00 noon. Petitioner no. 1 got married to Anil Kumar on 13th September, 2017. It has further been stated that her paternal grand mother (dadi) wants to kill her. The victim has been threatened. The paternal grand mother is about 65 years of age.

It has been stated by petitioner no. 1 in the statement that she got married of her free will and wants to live with Anil Kumar. The family of Anil Kumar has accepted her.

9. Annexure-3 appended with the short counter affidavit filed on behalf of the Prosecuting Agency indicates date of birth of the petitioner, vide School Leaving Certificate, as 05th December, 2003.

10. Learned counsel for the parties have pleaded that all the relevant evidences have been collected and appended with the short counter affidavit. The same be considered for adjudication.

11. The facts, as they emerge, are that it is the case of petitioner no. 1/victim/prosecutrix/abductee/kidnappee that she has neither been kidnapped nor abducted by Anil/petitioner No.2. Rather an attempt was made to sell her off by her father. She hails from a disturbed family. Having come to know that she would be sold by her own father she left her house and got married to Anil.

This case has peculiar facts. This Court being a Court of equity is required to take into account such unique facts. The predicament of the victim and the circumstances she was facing, under which she got married to Anil, cannot be ignored by this Writ Court to take a technical and mechanical view of the matter.

12. From the statement of the prosecutrix recorded under Section 164 Cr.P.C., it is evident that element of abduction is not there. The victim voluntarily joined the company of Anil/petitioner No.2 and got married to him.

13. So far as the age of petitioner no. 1 is concerned, we are of the considered view that interests of substantial justice are required to be considered. On ossification test, age of petitioner no. 1 has been found to be 16 years approximately.

14. This Court is not required to go by mathematical calculation of age. Cause of substantial justice is required to be seen. Petitioner no. 1 has throughout been claiming that she is 18-19 years of age. She has further exercised her right to get married as per her own wish. Both the petitioners are Hindus and, therefore, their marriage would merely be voidable, and not void. Rather than repudiating the marriage, the petitioner as the wedded wife has been repeatedly asserting the factum of her marriage.

In this context we would like to refer to the provisions relevant for adjudicating the issue from The Hindu Marriage Act, 1955 and The Prohibition of Child Marriage Act, 2006.

The relevant provisions of Hindu Marriage Act, 1955 read as under:

5. Conditions for a Hindu marriage.–A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:–

(i) neither party has a spouse living at the time of the marriage;

[(ii) at the time of the marriage, neither party–

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity [* * *];]

(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

(vi) [* * *]

11. Void marriages.–Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.

12. Voidable marriages.–(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:–

[(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage–

(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if–

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied–

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of [the said ground].

(emphasised by us)

15. A perusal of the above noted statutory provisions from The Hindu Marriage Act, 1955 indicates that Clause (iii) of Section 5 of the Hindu Marriage Act provides for the marriageable age of the bridegroom as 21 years; and of the bride as 18 years, at the time of marriage.

16. However, it be noticed that marriage between a bridegroom, who has not attained 21 years and/or a bride, who has not attained 18 years would not be void under the provisions of Section 11 of the Hindu Marriage Act.

Clause (iii) of Section 5 of the Hindu Marriage Act is conspicuous by its absence in Section 11 above extracted. This makes it evident that even though marriage has been performed in contravention of condition laid down in Clause (iii) of Section 5 of the Hindu Marriage Act, it would not be a void marriage as per Section 12 of the said Act.

17. On perusal of Section 12 of the Hindu Marriage Act, it further becomes evident that Clause (iii) of Section 5 of the Hindu Marriage Act has not been brought within the scope of voidable marriages.

It is thus evident that a marriage of minor Hindus would not even be voidable under Section 12 of the Hindu Marriage Act.

18. Provisions relevant for adjudicating the issue involved in this case from The Prohibition of Child Marriage Act, 2006 would read as under:-

2. Definitions. — In this Act, unless the context otherwise requires, —

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) X X X

(d) X X X

(e) X X X

(f) X X X

3. Child marriages to be voidable at the option of contracting party being a child.–(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:

Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.

(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.

(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.

(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:

Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.

12. Marriage of a minor child to be void in certain circumstances.–Where a child, being a minor–

(a) is taken or enticed out of the keeping of the lawful guardian; or

(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,

such marriage shall be null and void.

(emphasised by us)

19. A perusal of the above extracted provisions from The Prohibition of Child Marriage Act, 2006 indicates that under Section 3 of the said Act, ‘child marriage’, as defined under Section 2 (b) read with Section 2 (a) of the said Act, as extracted above, would be voidable at the option of the contracting party being a child, if the petition is filed at any time, but before the child filing the petition completes two years of attaining majority [Section 3 (3) of The Prohibition of Child Marriage Act, 2006].

20. Such a child marriage, as per this legislation would be void under Section 12 of the Act of 2006 in case a child being a minor is taken or enticed out of the keeping of the lawful guardian; or by force compelled, or by deceitful means induced to go from any place; or sold for the purpose of marriage. Such marriage shall be null and void.

21. When the facts of this case are considered subject to the legislative provisions, as noticed above, it becomes evident that marriage of petitioner No.1 with alleged accused Anil/petitioner No.2 is neither void nor voidable under The Hindu Marriage Act, 1955.

Likewise, the marriage would not be voidable under The Prohibition of Child Marriage Act, 2006 because petitioner No.1 is alleged to be a child under the 2006 Act, however she rather than repudiating the marriage, has asserted her marriage with Anil by way of giving her statement under Section 164 of the Code of Criminal Procedure; by way of getting her marriage registered vide document placed on record as Annexure – 3 with the writ petition; and by virtue of filing this petition to plead that she is married to Anil and she has neither been taken or enticed out of the keeping of her lawful guardian nor has been compelled by force, or by deceitful means induced to go from one place to the other or has been sold for the purpose of marriage. In such circumstances, even the Statute position as on date does not indicate that Anil has committed any offence.

In such cases, the main factor to be considered is whether the victim has been kidnapped or abducted within the definition of Section 363 read with Section 361 Indian Penal Code; and Section 366 read with Section 362 Indian Penal Code. The said provisions read as under:-

361. Kidnapping from lawful guardianship.–Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.–The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception–This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

362. Abduction.–Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

363. Punishment for kidnapping.–Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.–Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

22. From the above noted evidences, it becomes evident that petitioner No.1 had neither been kidnapped nor abducted. By her own repeatedly asserted statements, she has stated that she was to be sold by her father. She hails from a disturbed and broken family. It is under such circumstances, she got married to Anil and wants to live with him as his wife. She has neither been kidnapped nor abducted. In such circumstances, it would be against the interests of substantial justice to rule that petitioner No.1 had been kidnapped or abducted by accused Anil/petitioner No.2. Evidently, ingredients of Section 363 read with Section 361 Indian Penal Code and Section 366 read with Section 362 Indian Penal Code are not satisfied. In the considered opinion of the Court, offence in context of petitioner No.1 has not been committed. This conclusion of ours is reinforced by the fact that the marriage of petitioner No.1 with petitioner No.2 is neither void nor voidable, if reference is made to the stand repeatedly taken by petitioner No.1, the alleged victim, in context of The Hindu Marriage Act, 1955 and The Prohibition of Child Marriage Act, 2006.

23. Considering the totality of facts and circumstances of the case, we are of the view that prosecution of petitioner no. 2 would destroy the life of the victim/petitioner no. 1 insomuch as petitioner no. 2 is the husband of petitioner no. 1. Ends of justice demand that petitioner no. 2 be not prosecuted.

24. For all the reasons given above, the petition is allowed.

25. The First Information Report No. 0003 of 2018, under Sections 363, 366, 372, 504 and 506 Indian Penal Code, Police Station Baskhari, District Ambedkar Nagar and all consequent proceedings are hereby quashed.

26. Let a copy of this order be sent to Chief Judicial Magistrate, Ambedkar Nagar and Station House Officer, Police Station Baskhari, District Ambedkar Nagar.

Order Date :- 5.3.2019

VKS/lakshman

 

 

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