Maniram Maurya vs State (Nct) Of Delhi And Another
1998 Latest Caselaw 370 Del

ORDER

A.K. Srivastava, J.

1. This petition under Section 482 of the Code of Criminal Procedure seeks quashing of order dated dated 13.1.1998 passed in case FIR No. 925/97 under Section 366 IPC, P.S.Ambedkar Nagar, Delhi by Smt. Swaran Kanta Mehra, Metropolitan Magistrate, New Delhi, Mahila Court.

2. By the impugned order one Shiv Kumari, daughter of the petitioner, has been directed to be released to her husband (respondent No.2) on furnishing a Super-digamma in the sum of rupees twenty five thousand with the condition that he will produce the prosecutrix as and when directed by the court.

3. The petitioner had lodged the aforesaid FIR against respondent No.2 for having kidnapped Shiv Kumari which was registered under Section 366 IPC. On this FIR being registered, respondent No.2 was arrested and Shiv Kumari, the prosecutrix, was brought before the court of Metropolitan Magistrate. She was sent to Nari Niketan and respondent No.2 was released on bail by the court of Sessions. The petitioner as well as respondent No.2 moved their separate applications before the learned Metropolitan Magistrate for custody of Shiv Kumari and after careful consideration, the learned Magistrate, by the impugned order, rejected the application of the petitioner and allowed the application of the respondent No.2, subject to the aforesaid conditions. Feeling aggrieved by the order, inherent jurisdiction of this Court has been invoked under Section 482 of the Code of Criminal Procedure by the petitioner.

4. Notices were issued to the State as well as respondent No.2 but respondent No.2 did not come to Court. Consequently arguments of the learned counsel for petitioner and the learned counsel State were heard.

5. According to Scholar's Register the date of birth of the prosecutrix is 25.8.1981. It gets confirmation from the ossification test. So the age of the prosecutrix is between 16 and 17 years. Her statement under Section 164 Cr.P.C. was recorded wherein she stated that she had married with the respondent No.2 by her free will; that she lived with him by her consent, as his wife ; that she became pregnant from respondent No.2 and that she wanted to give birth to his child. Before the learned Magistrate she further stated that she was not prepared to go to her parents to live with them.

6. There is no dispute that the criminal case is still pending and the impugned order is an order of Superdagi. In the ordinary course this Superdagi order is not interfered with by Higher Courts unless it is to be found that there has been grave miscarriage of justice or the order is perverse. In the present case, the factors which weighed with the learned Magistrate for granting Superdagi of the prosecutrix Shiv Kumari to her husband Umesh were that Shiv Kumari and Umesh had marred with each other; that there was no allegation of rape; that Shiv Kumari lived with respondent No.2 out of her own free will; that she had become pregnant from respondent No.2 and wanted to give birth to his child and that Shiv Kumari stated before the Court that she did not want to live with her parents and she wanted to live with her husband.

7. I have carefully considered the impugned order. In the facts and circumstances of the case, it cannot be said that the impugned order is a perverse order or there has been grave miscarriage of justice. The prosecutrix is aged about 17 years of age and in the context of the fats of this case weight should be given to her wishes. It is a human problem and cannot be subjected to legal technicalities. Wish of the prosecutrix in the light of the facts of the present case becomes a material factor and if she wants to give birth to the child begot from respondent No.2 and there is love and affection for each other and respondent No.2 is ready to keep the prosecutrix with him to give the care needed, it would not be adverse to law if the prosecutrix is allowed to live with her husband, the respondent No.2 during the pendency of the criminal cases.

8. Learned counsel for petitioner strongly urged before me that a person who is accused of an offence under Section 366 should not be permitted to have the custody of the prosecutrix. In principle this submission may have some force but it is not of universal application as the facts of each case may differ. The wish of the prosecutrix, who has married the alleged accused and is carrying child of the accused acquired greater importance.

9. Further it was argued that respondent No.2 would not have the prosecutrix and would only spoil her life. From the facts and circumstances, presently, it does not appear to be so.

10. It was also argued by the learned counsel for petitioner that in spite of the impugned order of Superdagi of the prosecutrix to respondent No.2, the prosecutrix was still staying in the Nari Niketan and respondent No.2 did not approach to have her custody on Superdagi. If that be so, suitable direction may by given to the learned Magistrate.

11. In view of above discussion, I do not consider it a fit case to interfere in exercise of the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure and accordingly do not interfere.

12. However, it is observed that in case the prosecutrix is still staying in Nari Niketan and respondent No.2 has not taken steps to have her Superdagi after complying with the conditions imposed under the impugned order, the learned Magistrate in all propriety should issue notice to respondent No.2 and call the prosecutrix for having her wish in view of the developments after passing of the impugned order whether she still presses to go to respondent No.2 or is willing to live with her parents. The learned Magistrate may in its discretion, in the light of fresh facts, review the impugned order and may pass suitable orders according to law. Permission for such review is granted.

13. The petition is disposed of with the aforesaid decision and observation.