Allahabad High Court
Smt. Nidhi And Anr. vs State Of U.P. And 3 Ors. on 10 October, 2017
Bench: Vipin Sinha, J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 21558 of 2017
Petitioner :- Smt. Nidhi And Anr.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Diwan Saifullah Khan
Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J.
Hon'ble J.J. Munir,J.
Learned A.G.A. has accepted notice on behalf of the opposite party nos. 1 to 3.
Issue notice to the opposite party no. 4. Steps to be taken within three weeks. In case, step is not taken within the time specified above, the present order shall stand automatically vacated.
Each of the respondents is granted four weeks time to file counter affidavit.
Rejoinder affidavit, if any, may also be filed within two weeks thereafter.
List thereafter.
Heard learned counsel for the petitioners and learned AGA for the State and perused the impugned F.I.R. as well as material brought on record.
Learned counsel for the petitioners submits that the victim is petitioner no. 1 and accused is petitioner no. 2 and there is a joint affidavit. Both are major and they have also solemnized their marriage and they are living happily as husband and wife. As per paragraph no. 7, it has been mentioned that the date of birth of the victim is 19.01.2000
It is appreciated that the girl Nidhi along with her husband Vishal Yadav, petitioner no. 2 is present before this Court and with the consent of the parties, the Court now proceeds to examine Nidhi.
On being asked as to what is her name, she informed the Court "Nidhi" and she is daughter of Premsheela Devi respondent no. 4; on being further asked as to what is her date of birth, she informed "18 years" and apparently, she appears major.
She further submits that she has married with petitioner no. 2 according to her sweet will and she is living happily with her husband and she would like to go with her husband. It is recorded that the boy and girl have identified each other and their counsel has also identified them on the basis of documents produced before the counsel in his chamber.
The counsel for the petitioner has placed much reliance on the paragraph-18 to the writ petition, which reads as under:
"That the petitioner no. 1 has a legal right to marry with any one of her won choice because she is now adult and has a fundamental right enshrined in The Constitution of India to marry according to her will and it is also the human right of the petitioners enshrined in Human Right Declaration 1948 declared by the General Assembly of U.N.O."
In view of the facts and circumstances of the case as enumerated herein above and also keeping in view the law laid down by the Apex Court in Criminal Appeal No. 1142 of 2013- Sachin Pawar Vs. State of U.P., decided on 02.08.2013 and also in view of the statement made by the girl/victim herself before this Court, a case for grant of indulgence is made out.
Accordingly, till further order of this Court, it is directed that the petitioners shall not be arrested pursuant to the impugned FIR registered as Case Crime No. 302 of 2017, u/s 363, 366 IPC and Section 7/8 POCSO Act and Section 3(2)(5) SC/ST (Prevention of Atrocities) Act, police station Ballua, District Chandauli,
Let a copy of the order be communicated to office of Government Advocate, who after receipt of the order shall forward the same to the concerned SSP/SP, who will ensure the safety of the petitioners and will also ensure that the family members of the victim do not cause any harm or injury to the petitioners. Also the SSP/SP concerned shall ensure that the matter is fairly investigated in accordance with law and no conclusion is reached in conflict with the law based on whim, caprice or personal notions of morality.
Order Date :- 10.10.2017
Deepak
