Usha Jain vs The State Of Madhya Pradesh
2021 Latest Caselaw 2085 MP

              THE HIGH COURT OF MADHYA PRADESH                    1
                      MCRC No. 25633 of 2021
                      Usha Jain vs. State of MP

Gwalior, Dated : 31/05/2021

       Shri Prashant Sharma, Counsel for the applicant.

       Shri BPS Chauhan, Public Prosecutor for the respondent/ State.

Case Diary is available.

The applicant apprehends her arrest in connection with Crime

No.114/2021 registered at Police Station Ambah, District Morena for

offence under Sections 376, 376(2)(n), 344 of IPC and under Sections 5, 6

of the POCSO Act.

It is submitted by the Counsel for the applicant that during the

pendency of the present bail application, offences under Sections 9, 10, and

11 of the Prohibition of Child Marriage Act, 2006 have been added.

Accordingly, this application is also being decided in the light of additional

offences which have been added.

According to the prosecution case, the prosecutrix who is a minor

girl, was married to the son of the applicant. It was alleged that although

the prosecutrix was not ready for physical relationship, but the son of the

applicant, forcibly had physical relations. When the prosecutrix expressed

that she does not want to indulge in physical relationship with the son of

the applicant and as her son is compelling her to have physical relationship,

therefore, the applicant should allow the prosecutrix to sleep with her, but

it was refused by the applicant and instead, she insisted that since, she is a

married wife of her son, therefore, she should sleep with her son namely,

Bhola Jain.

MCRC No. 25633 of 2021 Usha Jain vs. State of MP

By referring to the statements of the prosecutrix recorded under

Sections 161 and 164 of CrPC, it is submitted by the Counsel for the

applicant that there is nothing to indicate that the applicant was present at

the time of marriage and it is further submitted that the applicant was not

aware that the prosecutrix is a minor or major. Even according to the

ossification test report, the age of the prosecutrix is between 16-17 years,

therefore, if the benefit of margin of error of two years is given to the

accused, then it would be clear that the prosecutrix was major and,

therefore, the applicant did not commit any mistake by insisting that the

prosecutrix should sleep with her son.

Per contra, the application is opposed by the Counsel for the State. It

is submitted that according to the prosecution case, when the prosecutrix

expressed her displeasure/unwillingness for physical relationship with the

son of the applicant and requested the applicant to allow her to sleep with

her in order to avoid physical violence, then she refused to do so and

insisted that the prosecutrix should sleep with her husband/son of the

applicant. It is submitted that in the light of the judgment passed by the

Supreme Court in the case of Independent Thought vs. Union of India

and Another reported in (2017) 10 SCC 800, physical relationship with a

minor wife is also an offence as Exception 2 of Section 375 of IPC has

been read down by the Supreme Court.

Heard the learned Counsel for the parties.

So far as the age of the prosecutrix is concerned, this Court is of the

MCRC No. 25633 of 2021 Usha Jain vs. State of MP

considered opinion that it is not an appropriate stage to give any

authoritative finding regarding the age of the prosecutrix. Whether the

error of margin of two years is to be considered in favour of the accused or

the benefit is to be given to the prosecutrix, is a matter which is to be

decided by the Trial Court after considering the surrounding facts and

circumstances of the case. At present, according to the prosecution case,

the prosecutrix is aged about 16-17 years and is minor. She was not happy

with the physical relationship with the son of the applicant and, therefore,

she requested the applicant not to compel her to sleep with her son and the

said request was turned down.

Considering the law laid down by the Supreme Court in the case of

Independent Throught (supra), this Court is of the considered opinion

that it is not a fit case for grant of anticipatory bail. The application fails

and is hereby dismissed.

(G.S.Ahluwalia) Vacation Judge MKB

MAHENDRA KUMAR BARIK 2021.06.01 11:24:28 +05'30'