Allahabad High Court
Zahid Khan And Another vs State Of U.P. And 2 Others on 21 December, 2022
Bench: Mahesh Chandra Tripathi, Mayank Kumar Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 20010 of 2022
Petitioner :- Zahid Khan And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Ashish Singh
Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Mayank Kumar Jain,J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the petitioners and learned A.G.A. for State respondents.
This petition has been filed for quashing the F.I.R dated 07.12.2022 arising out of Case Crime No. 165 of 2022, under section 366 IPC, police station Mugalpura, district Moradabad. Further prayer has been made not to arrest the petitioners in the aforesaid case.
Learned counsel for the petitioners submits that as per High School Examination-2021, the date of birth of the petitioner no. 2, namely Adeeba is 03.06.2003 and she is 19 years' old. The petitioner no. 1 Zahid Khan has brought on record the copy of Driving Licence, wherein his date of birth is recorded as 10.2.1995. Both the petitioners are major and they have solemnized their marriage with each other with free will, according to Muslim Rights on 09.12.2022, copy of Nikahnama has been brought on record as annexure No. 3 to the writ petition. They have also applied online for registration of their marriage with the Registrar of Marriages on 09.12.2022, copy whereof has been filed as annexure No. 4 to the writ petition. The present petition has been filed jointly by both the petitioners no.1 & 2 stating that the petitioner no.2 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.1. It is submitted that no offence under Section 366 IPC is made out against the petitioner no.1 as the petitioner no.2 is a major girl. The entire criminal case lodged by the respondent no.3 is nothing, but an abuse of the process of the 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 High School mark-sheet, which is appended as Annexure No.2 to the writ petition, no dispute has been raised by learned AGA. 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.1, 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.2 has come up with the categorical stand that she had left her home with the petitioner no.1 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 07.12.2022 registered as Case Crime No. 165 of 2022, under section 366 IPC, police station Mugalpura, district Moradabad 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 :- 21.12.2022
Sazia
