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Karnataka High Court · body

2015 DIGILAW 488 (KAR)

Bharathraj Gumppe v. State of Karnataka

2015-04-28

A.N.VENUGOPALA GOWDA

body2015
JUDGMENT : 1. The petitioner, working as a Conductor, fell in love with Miss. Insha Khaleel, aged about 19 years and a student of I B.B.M. Course in St. Agnes College, Mangaluru i.e., the daughter of the 2nd respondent and on 19.11.2014 married her in the Meeting Hall of Sri Seetharamanjaneya Bharathi Mandir, Yenmur Village, Sullia, Dakshina Kannada. The couple, thereafter, got published the matter relating to solemnization of their marriage, in “Jaya Kirana”, a local newspaper. The petitioner’s wife informed the 2nd respondent and also the jurisdictional police, the solemnization of her marriage. 2. The 2nd respondent having lodged a complaint, the first respondent – Ullala Police, registered a case in Crime No. 342/2014, for the offence punishable under S.366 r/w S.34 of IPC, against the petitioner and three others and submitted FIR to the III JMFC, Mangaluru, D. K. This petition was filed, under S.482 Cr. P.C., to quash entire proceedings relating to the said case. 3. The 2nd respondent had filed WPHC No. 228/2014, as against the State and also the petitioner, to issue a writ of Habeas-Corpus, to produce Insha Khaleel and set her at liberty. The petitioner and his wife Smt. Inchara @ Insha, having suo-motu appeared, on 28.11.2014, the said petition was dismissed. 4. Sri Aruna Shyam, learned advocate, contended that the petitioner having not committed any offence and the ingredients of the alleged offence having not been stated in the complaint filed by the respondent No.2, the investigation of the case being an empty formality or futile exercise, resulting in waste of public time and money, the impugned proceeding be quashed. According to the learned advocate, the allegations made in the complaint do not constitute a cognizable offence justifying the registration of a case and an investigation thereon. He submitted that the petitioner married Insha Khaleel @ Inchara, with her consent, in the presence of friends, well wishers and family members and is leading married life. He submitted that there being no material of whatsoever nature, in support of the allegations made in the complaint, the first respondent is wholly unjustified in registering the case and submitting FIR to the Magistrate. He submitted that there being no material of whatsoever nature, in support of the allegations made in the complaint, the first respondent is wholly unjustified in registering the case and submitting FIR to the Magistrate. He further submitted that the petitioner is apprehending threat to his life and liberty, since, his wife, earlier belonged to a different religion and as the 2nd respondent and his supporters are influential and politically powerful, are likely to cause harm or harassment to the married couple. 5. Sri Vijay Kumar Majage, learned HCGP, submitted that the first respondent would investigate the case and submit final report to the jurisdictional Magistrate. He submitted that the petition being premature is liable to be dismissed. 6. Mr. B. Lethif, learned advocate, submitted that in view of non-return of Miss Insha Khaleel, on 17.11.2014, from the College, the 2nd respondent having learned that the petitioner and his friends kidnapped and are forcing her to marry, lodged the complaint on 19.11.2014 and a case in Crime No. 342/2014 was registered by the first respondent. He submitted that the case requires investigation by the police, to find out, whether there is kidnapping or abduction or inducement of Insha Khaleel, to compel her marriage etc. 7. Perused the petition and considered the rival contentions. The point for consideration is, whether, the woman – Insha Khaleel, was abducted to, with the intension to compel her to marry against her wish or for the purposes appearing in S. 366 IPC? 8. In the earlier paragraphs, I have already adverted to certain factual details about the solemnization of the marriage of the petitioner and Insha Khaleel, whose date of birth, as per the SSLC Marks Card, is 03.10.1995. As on 17.11.2014, Insha Khaleel was a major. The marriage solemnized on 19.11.2014 was published in “Jaya Kirana”, Kannada Newspaper. Insha Khaleel @ Inchara has notified both respondents about the solemnization of her marriage with the petitioner. 9. On a complaint made by the 2nd respondent, a case in Crime No. 342/2014 was registered by the first respondent. On 27.11.2014, WPHC No. 228/2014 was filed by the 2nd respondent, to issue writ of Habeas Corpus and direct the respondents, to set at liberty Insha Khaleel. The said petition was dismissed on 28.11.2014 as misconceived. 10. The petitioner and the 2nd respondent are from different religions. On 27.11.2014, WPHC No. 228/2014 was filed by the 2nd respondent, to issue writ of Habeas Corpus and direct the respondents, to set at liberty Insha Khaleel. The said petition was dismissed on 28.11.2014 as misconceived. 10. The petitioner and the 2nd respondent are from different religions. Apprehending that the 2nd respondent may cause harassment and/or initiate proceedings, Insha Khaleel @ Inchara has notified that solemnization of her marriage and requested both respondents, not to disturb or harm the petitioner and allow herself to live happily. 11. On perusal of the record and the submissions made by the learned advocates, it is clear that Insha Khaleel, the daughter of the 2nd respondent, is a major and was at all relevant times a major. Hence, she was free to marry anyone she likes or live with anyone she likes. There is no bar in law for a inter-caste or inter-community or inter-religious marriage. Hence, no offence was committed by the petitioner and his friends, who have been named in the impugned FIR. 12. To constitute an offence under S.366 IPC, it is necessary to show that the accused induced the woman or compelled by force to go from any place and that such inducement was by deceitful means; that such abduction has taken place with the intent to forcefully marry or that she may be induced for illicit intercourse and/or that the accused knew it to be likely that she may be seduced to illicit intercourse as a result of her abduction. Mere abduction of a woman does not bring an accused under ambit of S.366 IPC. To proceed against an accused, under S.366 IPC, it must be alleged that the accused abducted the woman with the intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person/ or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the complaint contains the allegation that the abduction was for the purposes mentioned in S.366 IPC, a case for the offence under S.366 IPC cannot be registered. 13. The instant case is a classic example of mechanical registration of case by the 1st respondent for the offence under S.366 IPC. Unless the complaint contains the allegation that the abduction was for the purposes mentioned in S.366 IPC, a case for the offence under S.366 IPC cannot be registered. 13. The instant case is a classic example of mechanical registration of case by the 1st respondent for the offence under S.366 IPC. The impugned action of the first respondent is an abuse of process of law, at the instance of the 2nd respondent, who appears to have got annoyed, on account of marriage of his daughter, outside his religion. 14. In LATA SINGH Vs. STATE OF U.P. AND ANOTHER, (2006) 5 SCC 475 , the petitioner therein, married a man belonging to another caste and began to live with him. Her brother filed a criminal complaint accusing her husband of commission of the offences under Ss. 366 and 368 IPC, thereby, leading to the commencement of trial proceedings. A writ petition having been filed in the Apex Court, while observing, that a live-in-relationship between two consenting adults of hetrogenic sex, does not amount to any offence, even though it may be perceived as immoral, it was held, that a major girl is free to “marry anyone she likes” or “live with anyone she likes.” In the factual background of the case, it was held, that no offence was committed by any of the accused and the whole criminal case in question is an abuse of process of the Court. The observations made and the directions issued therein, being relevant to the instance case, is extracted herein below: “14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives. 15. We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste. 15. We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner’s brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner’s husband and his relatives. 16. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one. 17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste of inter-religious marriage. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste of inter-religious marriage. We, therefore direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.” (emphasis is supplied) 15. In FAZLE GAFFAR KHAN AND OTHERS Vs. STATE OF WEST BENGAL, (2010) 10 SCC 10, the appellant therein, facing criminal proceedings on a charge under S.366 IPC on the allegation that he kidnapped a minor girl, having moved a petition under S.482 Cr.P.C. and not able to get the relief in the High Court, filed an appeal before the Apex Court. An affidavit of the girl was filed stating that she was married to the appellant – accused. In the light of the said affidavit of the girl admitting the marriage between her and the appellant and the statement made by the learned advocate for the appellant, that a child has been born, in the interest of justice, the appeal was allowed and the criminal proceedings was quashed. 16. In ASHOK KUMAR TODI Vs. KISHWAR JAHAN AND OTHERS, (2011) 3 SCC 758 , a man fell in love with a girl and married her, in the Marriage Registration Office, under the Special Marriage Act, 1954. The girl having left her father’s house and started living in her husband’s house, the couple informed the police authorities about their marriage. The girl also informed her father about her marriage and the fact of she residing with her husband in her in-laws’ house. The girl’s father and his relatives, then, went to the matrimonial house and attempted to persuade the persons therein, to send back the girl. The girl also informed her father about her marriage and the fact of she residing with her husband in her in-laws’ house. The girl’s father and his relatives, then, went to the matrimonial house and attempted to persuade the persons therein, to send back the girl. The request having been turned down, a complaint was lodged. As a result, two police officials, went to the house of the accused to create mental pressure on him. Despite the same, the police, who had no role in their conjugal affairs and as the law enforcing authority had no right to interfere in their married life and were in fact duty bound to prevent others, who interfere with their married life, had registered a criminal case and attempted to interfere in the marital life of said persons, the proceedings having been assailed and when the matter ultimately reached the Apex Court, the police having failed to give effect to the directions issued in LATA SINGH’s case (supra), while reiterating that the directions issued are not intended to be brushed aside and overlooked or ignored and that the meticulous compliance is the only way to respond to the directions issued, it was held as follows: “38. In the light of the direction in Lata Singh case, it is the duty of all persons in the administration/police authorities throughout the country that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage, their marital life should not be disturbed or harassed and if anyone gives such threat or commits acts of violence or instigates, it is the responsibility of the officers concerned to take stern action against such persons as provided by law.” 17. In the instant case, on 23.04.2015, after hearing the learned advocates on both sides, it was ordered as follows: “Since it was submitted by Sri Aruna Shyam, learned advocate that the petitioner married Miss Insha Khaleel on 19.11.2014 and that WPHC No. 228/2014 filed by respondent No. 2 herein was disposed of on 28.11.2014, in order to find out whether there was any kidnapping, abducting or inducing her to compel her marriage i.e., in terms of Section 366 of IPC, the petitioner and said Insha Khaleel @ Inchara are directed to appear before court on 28.04.2015. It is open for Sri. It is open for Sri. B. Lethif, learned advocate appearing for respondent No. 2 to keep the 2nd respondent also present before the Court. Interim order passed earlier shall operate till next hearing date.” Pursuant to the aforesaid order, the petitioner and Smt. Inchara, appeared before this Court and submitted that, though, they hailed from different religions, they having fell in love, married on 19.11.2014. Insha Khaleel @ Inchara, submitted that there was neither kidnapping nor abduction much less any inducement by the petitioner or his friends and relatives on 17.11.2014. She submitted that, she left her parents’ home voluntarily and accompanied the petitioner on 17.11.2014 and with her consent there is solemnization of her marriage on 19.11.2014. Both of them further submitted that they would like to lead a peaceful married life. 18. There being no dispute that Insha Khaleel @ Inchara was a major as on 17.11.2014, i.e., the date on which she did not return home from the college and on 19.11.2014, i.e., the date on which her marriage with the petitioner was solemnized and her father lodged a complaint before respondent No. 1, she being a major, was free to marry anyone she liked. Since, Insha Khaleel @ Inchara submitted before this Court, that there was no kidnapping or abduction or any inducement and that her marriage with the petitioner was with her consent, I am satisfied that no offence falling within the scope of S. 366 IPC was committed by the petitioner and three others, against whom the first respondent has registered the FIR in question. The impugned FIR falls within the categories of cases given by the Apex Court at Sl. Nos. (1) (2) (3) and (5) of para 102 in the classic case of STATE OF HARYANA v. BHAJAN LAL, (1992) Supp (1) SCC 335. 19. As there is abuse of process by the first respondent, at the instance of the 2nd respondent, the case registered in Crime No. 342/2014 and FIR submitted to the III JMFC, D.K., Mangaluru City, being against the law laid down in the case of LATA SINGH (supra), is liable to be quashed, in its entirety. In the result, the petition is allowed and FIR in Crime No. 342/2014 submitted by the 1st respondent to the III JMFC, D.K., Mangaluru City is quashed. In the result, the petition is allowed and FIR in Crime No. 342/2014 submitted by the 1st respondent to the III JMFC, D.K., Mangaluru City is quashed. Keeping in view the decisions in LATA SINGH and ASHOK KUMAR TODI (supra), a direction is issued that the 1st respondent shall ensure that neither the petitioner nor his wife are harassed or threatened nor any acts of violence is committed against them. If anybody is found doing so, such person/s should be proceeded against, in accordance with law, by the law enforcing authorities. Ordered accordingly.