Vivek Kumar @ Sanju And Anjali @ ... vs The State, Govt. Of Nct Of Delhi And ...
2007 Latest Caselaw 378 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This petition has been made by the petitioners viz. Vivek @ Sanju and Anjali @ Afsana for quashing of FIR No. 160/2006 dated 6th March, 2006 under Section 363 IPC, registered at P.S. Nand Nagari, Delhi against petitioner No. 1 alleging kidnapping of petitioner No. 2. The petitioner's contention is that petitioner nos. 1 and 2 are husband and wife and had attained the age of majority. The petitioners being major came in contact with each other and they decided to be husband and wife and decided to solemnize the marriage without pomp and show and accordingly they tied the nuptial knot on 12th April, 2006 at Arya Samaj Mandir, Jamna Bazar, Delhi in presence of witnesses. Petitioner No. 2, prior to her marriage belonged to Muslim religion and was known as Afsana. She had embraced Hindu religion without any force, pressure, inducement or influence. She being a major, was free to adopt any religion of her choice, a constitutional right given to her. After her conversion, she changed her name to Anjali. The father of petitioner No. 2 was trying to perform her marriage with an unknown person without her consent and desire, while, she was in love with petitioner No. 1 and had disclosed this fact to her father also. Keeping this in view, she decided to go for marriage with petitioner No. 1 of her own free will, choice and consent. After marriage, the petitioners lived together as husband and wife. However, respondent No. 2, in order to break the matrimonial tie of the petitioners lodged an FIR against the petitioner No. 1 alleging that petitioner No. 1 had kidnapped petitioner No. 2. It is submitted by petitioner No. 2 that since, nobody kidnapped her and she, of her own free will, left the house of her father and married petitioner No. 1, no useful purpose will be served if the FIR remains on record. Petitioners have apprehensions and threats that they would be harassed on the basis of this FIR. It is also submitted that the respondent No. 2 succeeded in getting arrested one of the witnesses to the marriage viz. Dharmender Rathi. The petitioners have therefore, reasonable apprehension that petitioner No. 1 may be falsely implicated in the instant FIR. It is submitted that the FIR is an abuse of law and if it is allowed to continue, the respondent No. 2 with the help of this FIR was bound to harass the petitioners.

2. Notice of the petition was served upon the respondent No. 2 i.e. father of petitioner No. 2. The counsel for respondent No. 2 has vehemently opposed the quashing of FIR on the ground that on the date of alleged marriage, petitioner No. 2 was below 18 years and she was not free to give consent to marriage. He argued that expression of love by petitioner No. 1 to petitioner No. 2 and providing company, assurance of marriage and a place to live was sufficient enticement on the part of the petitioner No. 1 and even if, the girl had left the house of her parents of her own, it was due to the enticement of petitioner No. 1 and prima facie offence was made out from the complaint made in the FIR and there was no ground to quash the same.

3. The statement of the Prosecutrix under Section 164 Cr.P.C was recorded before MM and she gave statement on 10th July, 2006 as under - 'I told my father that I am in love with Sanju and wish to marry him, on this my father gave me 4-5 slaps and told me that I was going to malign 'Deen' (religion) and this will endanger the religion and then told me that he would marry me off to some rich person. On my refusal to marry anyone else he threatened that he would kill me. Thereafter, he called one boy and that boy told that I would have to live with him for 2-3 months and thereafter I would have to live with his grand father. I told that boy that I was in love with someone else. On 12th April, 2006, I (after running away from house) married Vivek @ Sanju in accordance with hindu rites. First, I got converted into Hindu religion and then married him. After marriage we went to different places and I had been living with my husband. We have consummated the marriage and I wanted to live with my husband and he was like god to me. I was having danger to my life from my father and paternal uncle. I be protected from them. Before marriage my maternal uncle Mehtab had also behaved indecently with me.

4. The petitioners, along with petition, attached marriage certificate issued by Arya Samaj Mandir, Jamna Bazar, Delhi showing that they were married to each other on 12th April, 2006 in the said temple. They also attached photographs of satpadi and marriage ceremony and a certificate of conversion of petitioner No. 2. Petitioner No. 2 had also made an application dated 18th June, 2006 to police post Karkardooma Court for providing security to her since she was to appear to the Court of ASJ on 19th June and she was apprehensive of an attack on her life by her father, brother maternal uncle etc. On 19th June, 2006 both the parties had appeared before Ms. Reena Singh Nag, ASJ and even in the Court of ASJ petitioner No. 1 and 2 appeared together. The learned ASJ personally made enquiries from the Prosecurtix and she stated that she wanted to join her husband. So, the request by the counsel for the complainant to send the petitioner No. 2 to Nari Niketan was declined by the Court. The Court ordered that she had come to court from the custody of her husband and she was free to go with her husband.

5. The counsel for respondent No. 2 submitted that the Prosecutrix was less than 18 years of age on 6th March, 2006 when she left her father's house and was enticed away by the petitioner No. 1. A school leaving certificate of the petitioner No. 2 (Afsana) was placed on record showing that her date of birth was 18th June, 1989. The petitioner No. 2 on the other hand, has placed on record a medical certificate issued by CMO, Baghpat regarding her age verification wherein he had determined boney age of the petitioner No. 2, after examining x-rays of elbow, knee and wrist joints and stated that she was aged around 19 years.

6. Section 363 of IPC provides for the punishment for kidnapping. Kidnapping is defined under Section 361. Section 361 IPC reads as under:

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.

7. A bare perusal of the above section would show that in order to constitute kidnapping, it was necessary that there should be either taking away of minor from the custody of lawful guardian without consent of the lawful guardian or enticing the minor so that minor leaves the custody of lawful guardian under enticement. Presuming that School Leaving Certificate of petitioner No. 2 gives the correct age, the age of petitioner No. 2 was below 18 years on the day when she left the house of her parents. She was around 17 years of age at that time. 'Enticing' is defined in Chambers Twenty First Century Dictionary as to 'tempt or persuade by arousing hopes or desire by promising a reward. In Wester Dictionary 'enticement' is defined as to 'cause a person to cease resisting and to do as one wishes by offering some inducement'.

8. A perusal of FIR would show that Tahir (father of petitioner No. 2) made a complaint that on 6th March, 2006 at 4.00 a.m. when he was about to take his buffaloes out of house, he found that the main gate of the house was open and on checking the rooms, he found his daughter Afsana aged around 16 years missing from the house. He searched her at his own level. He doubted that her daughter was kidnapped by one Sanju, who used to visit his house in past. He requested for searching the daughter and taking action against Sanju. It is obvious that the girl left the house of her parents on the nights intervening 5th and 6th March, 2006 and she was not there in the house at 4.00 a.m. on 6th March, 2006. There are no allegations that Sanju had done the act of asking her to come out of the house or gave any temptation to her. A perusal of statement of the girl under Section 164, Cr.P.C would show that she had told her father that she was in love with Sanju and wanted to marry him. From the FIR itself it is obvious that Sanju and Afsana used to meet each other and both were of young age. From the statement of petitioner No. 2 it is clear that she wanted to marry Sanju with the consent of her parents and told her father about the same. There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No. 2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner No. 2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off her daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of girl or on the part of boy with whom she ran away and married. The present day scenario of this country did not give assurance to petitioner No. 2 that she was safe in the house of her parents. The news reports of the fate of such girls and couples appearing in the media are horrifying. A young couple was lynched by girl family in full public view in Patna on 3rd February, 2006 because the girl had married a person of her choice against the wishes of family members. The news made headlines in newspapers and TV. Another couple was beaten to death and their dismembered bodies were burnt after a local 'Panchayat' ordered the killing of the pair because they had married against the wishes of parents. On 3rd February, 2006, Shailender Mishra, a Patna school teacher was lynched his head crushed with stone and his newly married wife Pushpanjali was assaulted by a group led by her father for the crime of marrying without family consent. In December, 2005 another couple of village Manhu in Khunti sub-division was tonsured and paraded naked on 9th December, for tying nuptial knot against the wishes of the parents as they belonged to different castes.

9. This scenario in this country in some regions or families in respect of out caste marriages and marriages in different religions is sufficient to create fear in the mind of a young girl whose parents rebuke her and tell her that she will be killed if she insists upon marrying her love because the person is not of the same religion or same caste. If such a girl leaves the house, the reason behind her leaving of the house cannot be enticing away by somebody but it is driving her away from home by her father.

10. The Court cannot asses or judge the atmosphere in the family of a child. The girl, who has lived with her parents for many years knows the nature of her parents and relatives and atmosphere in her house better than any outsider. She has a right to judge where her safety lies. I consider, the reason behind leaving the house by petitioner No. 2 is the fear and the threat to her life and it is not enticing away. Can falling in love be said to be enticing 'If, two young persons fall in love, 'who is enticing whom?'. Does providing shelter to a driven away girl amounts to enticing and kidnapping' The answer is emphatic 'NO'. I consider that the police in this case should have dropped the proceedings and filed a report of no case made out after recording of statement under Section 164 of the girl. Fair investigation is what is expected from the Investigating Agency. Working under pressure groups or under threats of religious discontent is not expected from the investigating agency. Since the investigating agency did not act fairly the petitioners had to approach this Court.

11. In view of discussions above, I consider that it is a case where the provisions of law are being grossly misused and there is gross abuse of the process of law, by continuing of FIR and proceedings when no offence is made out. I, therefore, hereby quash this FIR No. 160/2006 under Section 363 IPC at P.S. Nand Nagari and the proceedings resulting there from.