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2014 DIGILAW 1142 (GUJ)

Mitalben Hasmukhbai Patel v. State of Gujarat

2014-12-03

V.M.SAHAI

body2014
ORDER : I have heard Mr. Hardik J. Jani, learned counsel appearing on behalf of the applicants, Ms. Jirga Jhaveri, learned APP appearing on behalf of respondent No.1 and Mr. Alok Thakkar, learned counsel appearing on behalf of respondent No.2. 2. This petition has been filed by Mitalben Hasmukhbhai Patel and Hasmukhbhai Amrabhai Patel, who are husband and wife, for quashing and setting aside the impugned FIR bearing I-C.R. No. 114/2013 registered with Thara Police Station, District-Banaskantha for the offences punishable under Sections 366, 395, 323, 506(2) and 114 of the Indian Penal Code, which is annexed as Annexure : A to the application, qua the petitioner No. 2. 3. This petition has been filed by the petitioners on the ground that the petitioner No. 1 and petitioner No. 2 were having love affair, were major and their love affair converted into marriage which was solemnized as per Hindu rites and rituals on 12th May, 2012. With regard to the marriage, a certificate has also been issued by Shri Riddhi Siddhi Charitable Trust on 12th May, 2012. The petitioners have also produced marriage registration certificate as well as school leaving certificates to demonstrate that they were major at the time of the marriage and that they are legally wedded husband and wife. 4. It appears that due to their love affair, the petitioners eloped from their house and got married which was not liked by the respondent No.2, the brother of the petitioner No.1 and he, therefore, lodged an FIR which has been under challenge in this petition. Mr. Alok Thakkar, learned counsel for the respondent No.2 on instructions has stated that when both the petitioners were in love, they were major and they are legally wedded husband and wife and out of such wedlock, a child has also borne. 5. It appears that the petitioner No.1 has filed her affidavit stating therein that she is legally wedded wife of the petitioner No.2. 6. The Apex Court in the case of Fazle Gaffar Khan and others v. State of W.B. and another, reported in [2000] 10 SCC 10 has held that when the parties are legally married and a child is borne out of such marriage, interest of justice demands quashing of the criminal proceeding. Similar view has been taken by the Apex Court in the case of Sachin Pawar & Anr. Similar view has been taken by the Apex Court in the case of Sachin Pawar & Anr. v. State of U.P. & Ors., reported in 2013 STPL[Web] 875 SC, wherein, the Apex Court has observed as under:- ' The complaint filed by respondent No.3 against appellant No.1 also does not require to be retained any more. It is a complaint alleging the kidnapping of appellant No.2 by appellant No.1. From the facts of this case, it is clear that the second appellant had gone over to the first appellant on her own and they are married and are now living together happily. Under the circumstances the complaint filed by respondent No.3, bearing Crime No. 684 of 2012 at Meerut, is hereby quashed. The consequences thereof will follow.' 7. From the aforesaid two decisions, it is clear in this case that when both the petitioners while they were in love got married and were major at the time of their marriage, it cannot be said to be kidnapping of petitioner No.1 by the petitioner No.2. 8. For the aforesaid reason, the petition deserves to be allowed and is accordingly allowed and the impugned FIR bearing I-C.R. No. 114/2013 registered with Thara Police Station, District-Banaskantha for the offences punishable under Sections 366, 395, 323, 506(2) and 114 of the Indian Penal Code, which is annexed as Annexure : A to the petition, is hereby quashed and set aside qua the petitioner No.2. Rule is made absolute. There shall be no order as to costs. Petition allowed.