Allahabad High Court
Smt. Mala And Another vs State Of U.P. And 3 Others on 6 December, 2022
Bench: Mahesh Chandra Tripathi, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 18759 of 2022
Petitioner :- Smt. Mala And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ram Bilas Prasad,Satish Kumar Singh Kushwaha
Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioners and Shri G.P. Singh, learned A.G.A. for State/respondent Nos.1 to 3.
This petition has been filed for quashing the F.I.R dated 29.04.2022 arising out of Case Crime No.0133 of 2022, under Sections 366, 504 IPC, P.S. - Rasra, District- Ballia. Further prayer has been made not to arrest the petitioners in the aforesaid case.
Learned counsel for the petitioners submits that as per Aadhar Card date of birth of petitioner No.1 is 01.07.2000 and she is 22 years' old and as per High School Certificate-cum-Marks sheet date of birth of petitioner No.2 is 23.01.2001 and as such he is 21 years of age. Learned counsel for the petitioners submits that both the petitioners are major. They were in love affair and since both are major, they have solemnized marriage with each other with free will, according to Hindu Rites and Customs and have applied for registration of their marriage. The present petition has been filed jointly by both the petitioners No.1 & 2 stating that the petitioner no.1 had left her paternal home out of her own sweet will and being a major girl, she is free to take her choice to perform marriage with the petitioner no.2. It is submitted that no offence under Section 366 and 504 IPC is made out against the petitioner no.2 as the petitioner no.1 is a major girl. The entire criminal case lodged by the respondent no.4 is nothing but an abuse of the process of law.
Learned counsel for the petitioners has further contended that in view of the aforesaid facts and circumstances, the impugned FIR is liable to be quashed in view of the Supreme Court's judgment in Kavita Chandrakant Lakhani vs. State of Maharashtra & Anr reported in AIR 2018 SC 2099, wherein it was held that to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person 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. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC.
As regards the age of the victim girl, as indicated in the Aadhar Card, which is appended as Annexure No.1 to the writ petition, no dispute has been raised by learned A.G.A. It is, thus, clear that both the petitioners are major. The fact, that the present writ petition has been filed with the declaration by the victim girl that she is living voluntarily in the company of the petitioner no.2, is supported with the signature of the victim girl on the Vakalatnama. Once the age of the victim girl is not in dispute, then the petitioners No.1 & 2 cannot be made accused for committing offence under Section 366 IPC as victim had left her home in order to live with the petitioner no.2.
We make it clear that the question in the present petition is not about the validity of marriage of two individuals i.e. petitioners no.1 & 2. Rather, the issue is about the life and liberty of two individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live.
In view of the above discussion, we are of the considered view that from the first information report no offence under Section 366 IPC is made out, inasmuch as, both the petitioners are major and the petitioner no.1 has come up with the categorical stand that she had left her home with the petitioner no.2 willingly and is living with him as a married woman.
In view of the above, the writ petition succeeds and is allowed. The F.I.R dated 29.04.2022, arising out of Case Crime No.0133 of 2022, under Sections 366, 504 IPC, P.S. - Rasra, District- Ballia as well as all consequential proceedings are hereby quashed.
We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners.
Order Date :- 6.12.2022
ML
