Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 1135 (ALL)

RAHUL v. STATE OF U P

2008-05-23

SURENDRA SINGH, VINOD PRASAD

body2008
VINOD PRASAD, J. Rahul and Pratibha Dhiman, the two petitioners have filed the present writ petition with the prayer that FIR of Crime No. 14 of 2008, under sections 363, 366 IPC, Police Station Khatauli, District Muzaffar Nagar be quashed. The ancillary prayer is for stay of arrest. 2. In brief the impugned FIR was lodged by Raj Kumar Dhiman, father of petitioner No. 2, Pratibha Dhiman, with the allegations that in the night of 28. 12. 2007 at 8. 00 p. m. his daughter petitioner No. 2 Pratibha Dhiman was cleaning utensils when petitioner No. 1 Rahul along with one more companion armed with country-made pistol came to the house of the in formant and forcibly abducted Pratibha Dhiman. Informant Raj Kumar Dhiman raised hue and cry and he along with his son Mukesh attempted to get Pratibha Dhiman rescued but they were threatened and Pratibha Dhiman was abducted. Police gave assurances to act and recover Pratibha Dhiman but did not recover her and there fore, informant moved an application be fore DIG on the basis of which the im pugned FIR was registered as Crime No. 14 of 2008, under sections 363, 366 IPC at Po lice Station Khatauli, District Muzaffar Na gar, which FIR is being sought to be quashed by the two petitioners. 3. On the said facts we have heard Sri Vinod Kumar Sahu, learned Counsel for the petitioners as well as Sri Amit Daga, learned Counsel for respondent No. 4 Raj Kumar Dhiman, who is the informant of the impugned FIR and father of petitioner No. 2 as well as learned AGA in opposi tion. Counter affidavit has been filed by re spondent No. 4 informant Raj Kumar Dhi man to which a rejoinder affidavit has also been filed by the petitioners. 4. Learned Counsel for the petition ers contended that both the petitioners, namely, Rahul and Pratibha Dhiman are major and they have solemnized their marriage on their own volition without any threat or coercion because they were in love with each other and therefore, the im pugned FIR be quashed. Both the petition ers are co-villagers and they knew each other very well. They have solemnized the marriage under Hindu Marriage Act, 1955 and also got it registered on 10. 1. 2008 vide Annexure No. 4 to this affidavit. It is fur ther contended, on the basis of Annexure Nos. Both the petition ers are co-villagers and they knew each other very well. They have solemnized the marriage under Hindu Marriage Act, 1955 and also got it registered on 10. 1. 2008 vide Annexure No. 4 to this affidavit. It is fur ther contended, on the basis of Annexure Nos. 2 and 3, which are the age certificate issued from the office from C. M. O. De hradun, both dated 9. 1. 2008, that Pratibha Dhiman is aged about 18 years and Rahul Kumar is of 22 years of age. The marriage registration certificate is Annexure No. 4 to the writ petition. Learned Counsel for the petitioners contended that since both the petitioners have married, the impugned FIR be quashed. 5. Contrarily Sri Amti Dagga, learned Counsel for respondent No. 4, basing his argument on the counter affi davit submitted that petitioner No. 2 is a minor and the marriage solemnized by her is void being contrary to section 5 of Hindu Marriage Act. In the counter affidavit in formant has denied the fact that petitioner No. 2 Pratibha Dhiman is a major. He has filed school leaving certificate wherein date of birth of Pratibha Dhiman is recorded as 1. 6. 1995. The said certificate CA-1 has been issued by the Principal Primary School, Antwar District Muzaffarnagar. Vide An nexure CA-2 informant has filed the photo copy of the Ration Card of his family members wherein age of petitioner No. 2 is recorded as 13 years. Vide Annexure No. CA-3 to the counter affidavit the horoscope and the leep has been filed wherein also the date of birth of petitioner No. 2 is recorded as 1. 6. 1995. 6. In the rejoinder affidavit there is absolutely no documentary evidence filed to rebut the aforesaid Annexures-CA-1 to CA-3 and the emphasis has been laid only on the medical certificate issued by : C. M. O. Dehradun. 7. We have considered the argu ments raised by both the sides. The mooted question for our determination is as to whether petitioner No. 2 is a major or not? In support of her proof of age petitioners have relied upon the certificate of C. M. O. Dehradun as against the school leaving certificate, photocopy of Ration Card and the leep filed by respondent No. 4 her fa ther. The mooted question for our determination is as to whether petitioner No. 2 is a major or not? In support of her proof of age petitioners have relied upon the certificate of C. M. O. Dehradun as against the school leaving certificate, photocopy of Ration Card and the leep filed by respondent No. 4 her fa ther. Respondent No. 4 Raj Kumar Dhiman being the father of petitioner No. 2 is the best witness to depose regarding date of birth of the petitioner No. 2. In the counter affidavit he has clearly averred that peti tioner No. 2 is a minor and in support of his said contention he has filed the afore said three documents mentioned herein before. There can be an error of two years either side in the radiological age recorded by the doctor. There are decisions of the Apex Court that in respect of age the evi dence of the parents and that of the school register and the leep are the best evidences and they should be preferred. Since peti tioners have failed to contradict the afore said three documents filed by informant respondent No. 4 Raj Kumar Dhiman, we have no hesitation in holding that peti tioner No. 2 is a minor less than 18 years of age. 8. Since we have held that petitioner No. 2 is a minor below 18 years of age, she could not have solemnized the marriage on her own will with petitioner No. 1. Under section 5 of the Hindu Marriage Act the minimum age to solemnized the marriage by a female is statutorily prescribed as 18 year. Thus, the contention of learned Coun sel for the petitioner that petitioner No. 2 has solemnized the marriage is contrary to section 5 of the Hindu Marriage Act and such their marriage is void. We are not im pressed by the argument of learned Coun sel for the petitioner that Pratibha Dhiman was forced to solemnize her marriage be cause respondent No. 4 was forcing her to marry with one Dheeraj after taking Rs. 30, 000/ -. The father appeared before us and specifically denied the said allegation. In the interest of justice we also got the mother of petitioner No. 2, namely, Smt. Santosh got summoned. She also appeared before us and vehemently denied the wild allegations levelled by Pratibha Dhiman. 30, 000/ -. The father appeared before us and specifically denied the said allegation. In the interest of justice we also got the mother of petitioner No. 2, namely, Smt. Santosh got summoned. She also appeared before us and vehemently denied the wild allegations levelled by Pratibha Dhiman. She in no uncertain terms stated before us that Pratibha Dhiman was abducted on gun point and it is absolutely false to say that she was being forced to marry with Dheeraj after taking Rs. 30, 000/ -. Against infatuated allegations without any basis and no foun dation being laid in the writ petition we have no hesitation in accepting the version the parents which is most natural and ac ceptable. Had the fact of taking Rs. 30, 000/-and forcing petitioner No. 2 to marriage Dheeraj would have been correct the same would certainly have been stated as a fact in the writ petition, which averments is conspicuously silent in the whole of the writ petition. Even in the rejoinder affidavit we have not been able to find anything with support the said argument raised by learned Counsel for the petitioner. In our view, the statement by petitioner No. 2 that she was forced to solemnized marriage af ter taking Rs. 30, 000/- implanted on her parents, is a temerity and is a patently false statement. Therefore, we reject the said contention of learned Counsel for the peti tioners. 9. In view of the above discussion, we find no merit in this writ petition as the impugned FIR of abduction and kidnap ping under sections 363, 366, IPC vide Crime No. 14 of 2008 registered at Police Station Khatauli, District Muzaffarnagar can not be quashed. This writ petition, therefore, is merit less and is hereby dis missed. Interim order dated 19. 2. 2008 stands vacated. Petition Dismissed. .