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2017 DIGILAW 1343 (HP)

Hardeep Singh v. State of H. P.

2017-12-05

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. The present again is a case where both petitioners are now husband and wife. As a matter of fact, elder sister (Sandeep Kaur) of petitioner No. 2-complainant is real sister-in-law (Bhabhi) of -petitioner No.1-accused. Since the two families i.e. of petitioner No. 1-accused and petitioner No.2-complainant were closely related, therefore, petitioner No. 1-accused was visiting the house of the parents of petitioner No.2-complainant well before their marriage. The record available at this stage also reveals that they both were in love and their love affairs ultimately matured into physical relations well before their marriage. The petitioner No.2-complainant is now pregnant. The pregnancy is at an advance stage. Better sense has prevailed upon petitioner No. 1-accused as he has now solemnized marriage with petitioner No.2-complainant at Delhi. They also got registered the marriage. The registration certificate is Annexure P-2. Yesterday on 4.12.2017, while recording the statement of Nisha Devi petitioner No.2- complainant noting her demeanour and on being asked as to whether she is making the statement voluntarily or without any threat and pressure she started crying and disclosed further that she is living at the place of her parents and not in that of her in-laws. The Court suspected that she may not be happily married with petitioner No. 1-accused. Therefore, in order to ascertain the factual position the petitioners were directed to produce their parents in the Court. 2. Consequently, Shri Amar Nath Singh, father of petitioner No. 1-accused Hardeep Singh and Shri Sohan Lal, father of petitioner No. 2-complainant are present in person. Shri Sohan Lal is fully satisfied with this marriage. However, Shri Amar Nath Singh aforesaid had certain reservations and grievances against both the petitioners as according to him they have solemnized marriage alone at Delhi whereas he was in favour of solemnization of marriage with all Hindu rites and customary ceremonies. Anyhow, being pacified with the assistance of learned Counsel representing the petitioners in open Court and also apprised that now they have solemnized marriage and petitioner No. 2-complainant is carrying an advance pregnancy he pardoned them and also granted his approval to this marriage. 3. It is in this backdrop, further statement of petitioner No. 2-complainant has been recorded. Anyhow, being pacified with the assistance of learned Counsel representing the petitioners in open Court and also apprised that now they have solemnized marriage and petitioner No. 2-complainant is carrying an advance pregnancy he pardoned them and also granted his approval to this marriage. 3. It is in this backdrop, further statement of petitioner No. 2-complainant has been recorded. In view of the changed circumstances and her marriage with petitioner No. 1-accused Hardeep Singh she is now no more interested to prosecute either the FIR registered against him at her instance or the criminal proceedings, if any, pending in this case. Petitioner No. 1- accused in his statement recorded separately while admitting the statement of his wife Nisha Devi to be true and correct has further undertaken to make her absolutely comfortable in the matrimonial home. Being so, in the changed circumstances, no fruitful purpose is likely to be served to allow the criminal proceedings launched against petitioner No.1-accused to continue. Any such efforts rather would tantamount to misuse of process of law. 4. Interestingly enough, petitioner No. 1 and 2 both are major being 26 years of age. In the changed circumstances and they have solemnized marriage with each other allowing the criminal proceedings initiated against petitioner No. 1-husband neither is in his interest nor in the interest of petitioner No.2- complainant. They both are major, hence competent to take decision for them. The FIR Annexure P-1 is upshot of opposition of petitioner No. 1-accused to marry with her. This Court in Shishu Pal versus State of H.P. & others and its connected petition in a situation when the complainant –prosecutrix was minor, while placing reliance on the judgment of Delhi High Court in Jitender Kumar Sharma versus State of Another, 2010 (4) Civil Court Cases 432 (Delhi) (DB) has held that on solemnization of the marriage by the complainant with the accused allowing the criminal proceedings to continue would be nothing but an abuse of process of law. This judgment reads as follow: “9. This judgment reads as follow: “9. In the light of the given facts and circumstances, irrespective of the prosecutrix was below 18 years of age on the day of her elopement in the company of accused petitioner Shishu Pal and solemnization of marriage with him, in the considered opinion of this Court the present is a case where the FIR registered against the accused-petitioner and his co-accused and also consequential criminal proceedings deserves to be quashed for the reasons that no useful purpose is likely to be served by allowing the same to continue as the prosecutrix and the accused-petitioner Shishu Pal are happily married with each other and living in complete harmony and peace in the matrimonial home. The complainant is also satisfied with the cordial relations of the couple. Initial anguish was somewhat natural for the reason that in our society inter-caste marriages are still not accepted. The present, in the given facts and circumstances, is a case, where allowing the criminal proceedings against the accused petitioner to continue would amount to abuse of process of law for the reason that if the investigation conducted in the matter and evidence collected is taken as it is, the criminal case is not going to end with the conviction of the accused-petitioner because the prosecutrix and for that matter her father, the complainant may also not support the prosecution case. While arriving at such conclusion, this Court finds support from the judgment of a Division Bench of Delhi High Court in Jitender Kumar Sharma versus State & Another, 2010 (4) Civil Court cases 432 (Delhi) (DB). As a matter of fact, the facts in Jitender’s case were identical to that before this Court because in that case also the age of the prosecutrix was 16 years whereas that of the accused 18 years. They having fallen in love, eloped together and got married, as per Hindu rites and customs in a temple. After registration of the case, the custody of the prosecutrix was entrusted to an NGO, namely ‘Nirmal Chhaya’, however, the Division Bench seized of the matter deemed it appropriate to hand over her custody to her husband, the accused, irrespective of he was also minor aged 18 years. After registration of the case, the custody of the prosecutrix was entrusted to an NGO, namely ‘Nirmal Chhaya’, however, the Division Bench seized of the matter deemed it appropriate to hand over her custody to her husband, the accused, irrespective of he was also minor aged 18 years. The Division Bench in that case had also taken into consideration the fundamental right to ‘life’ and ‘liberty’ guarnted by Article 21 of the Constitution of India and also the provisions contained under the Hindu Marriage Act 1955 as well as Child Marriage Restraint Act, 1929 and the provisions contained under Section 6 of Hindu Minority and Guardianship Act, 1956 and held as under:- “22. A reading of the 1890 Act and the 1956 Act, together, reveals the guiding principles which ought to be kept in mind when considering the question of custody of a minor Hindu. We have seen that the natural guardian of a minor Hindu girl whose is married, is her husband. We have also seen that no minor can be the guardian of the person of another minor except his own wife or child. Furthermore, that no guardian of the person of a minor married female can be appointed where her husband is not, in the opinion of the court, unfit to be the guardian of her person. The preferences of a minor who is old enough to make an intelligent preference ought to be considered by the court. Most importantly, the welfare of the minor is to be the paramount consideration. In fact, insofar as the custody of a minor is concerned, the courts have consistently emphasized that the prime and often the sole consideration or guiding principle is the welfare of the minor. 23. In the present case, Poonam is a minor Hindu girl who is married. Her natural guardian is no longer her father but her husband. A husband who is a minor can be the guardian of his minor wife. No other person can be appointed as the guardian of Poonam, unless we find that Jitender is unfit to act as her guardian for reasons other than his minority. We also have to give due weight and consideration to the preference indicated by Poonam. She has refused to live with her parents and has categorically expressed her desire and wish to live with her husband, Jitender. We also have to give due weight and consideration to the preference indicated by Poonam. She has refused to live with her parents and has categorically expressed her desire and wish to live with her husband, Jitender. Coming to Poonam‘s welfare which is of paramount importance, we are of the view that her welfare would be best served if she were to live with her husband. She would get the love and affection of her husband. She would have the support of her in-laws who, as we have mentioned earlier, welcomed her. She cannot be forced or compelled to continue to reside at Nirmal Chhaya or some other such institution as that would amount to her detention against her will and would be violative of her rights guaranteed under article 21 of the Constitution. Neetu Singh’s case (supra) is a precedent for this. Sending her to live with her parents is not an option as she fears for her life and liberty. 24. As regards the two FIRs which have been registered are concerned, we are of the view that continuing proceedings pursuant to them would be an exercise in futility and would not be in the interest of justice. Poonam has clearly stated that she left her home on her own and of her own free will. This cuts through the case of kidnapping and insofar as the offence punishable under section 376 IPC is concerned, the present case falls under the exception to section 375 inasmuch as Poonam is Jitender’s wife and she is above 15 years of age. The allegation of criminal intimidation is also not sustainable at the outset. Hence, FIR No. 110/2010 u/s 363/376 IPC and FIR No. 177/2010 u/s 363/506 IPC (both of PS Gandhi Nagar, New Delhi) and all proceedings pursuant thereto are liable to be quashed. Since Jitender is less than 18 years of age, even the offence under Section 9 of the Prohibition of Child Marriage Act, which provides for the punishment of a male adult above 18 years of age, is not made out. 25. Before we conclude, we would like to point out that the expression ‘child marriage’ is a compendious one. Since Jitender is less than 18 years of age, even the offence under Section 9 of the Prohibition of Child Marriage Act, which provides for the punishment of a male adult above 18 years of age, is not made out. 25. Before we conclude, we would like to point out that the expression ‘child marriage’ is a compendious one. It includes not only those marriages where parents force their children and particularly their daughters to get married at very young ages but also those marriages which are contracted by the minor or minors themselves without the consent of their parents. Are both these kinds of marriages to be treated alike? In the former kind, the parents consent but not the minor who is forced into matrimony whereas in the latter kind of marriage the minor of his or her own accord enters into matrimony, either by running away from home or by keeping the alliance secret. The former kind is clearly a scourge as it shuts out the development of children and is an affront to their individualities, personalities, dignity and, most of all, life and liberty. As per the 205th Report of the Law Commission of India, February 2008, child marriages continue to be a fairly widespread social evil in India and in a study carried out between the years 1998 to 1999 on women aged 15-19 it was found that 33.8% were currently married or in a union. In 2000 the UN Population Division recorded that 9.5% of boys and 35.7 % of girls aged between 15-19 were married [at p.15 of the Report]. Such practices must be rooted out from our social fabric. In the law commission reports on the subject as well as in the statements of objects and reasons behind the Child Marriage Restraint Act, 1929 and now the Prohibition of Child Marriage Act, 2006, the apparent target seems to be these unhealthy practices. However, we have, in our experience in the present bench, noticed a burgeoning of cases of missing daughters and married daughters detained by their parents. It is a serious societal problem having civil and criminal consequences. In countries like USA and Canada also there is the problem of teenage marriages. There many states have recognized teenage marriages provided the boy and girl are both above 16 years of age and the minor has his or her parents’ consent. It is a serious societal problem having civil and criminal consequences. In countries like USA and Canada also there is the problem of teenage marriages. There many states have recognized teenage marriages provided the boy and girl are both above 16 years of age and the minor has his or her parents’ consent. In some cases, consent and approval of the court is also required with or without the consent of the parents. Where the minor girl is pregnant, the marriage is usually permitted. There is a distinction between the problem of child marriages as traditionally understood and child marriages in the mould of teenage marriages of the West. India is both a modern and a tradition bound nation at the same time. The old and evil practices of parents forcing their minor children into matrimony subsists along with the modern day problem of children falling in love and getting married on their own. The latter may have been occasioned by aping the West or the effect of movies or because of the independence that the children enjoy in the modern era. Whatever be the reason, the reality must be accepted and the State must take measures to educate the youth that getting married early places a huge burden on their development. At the same time, when such marriages to occur, they may require a different treatment. The sooner the legislature examines these issues and comes out with a comprehensive and realistic solution, the better, or else courts will be flooded with habeas corpus petitions and judges would be left to deal with broken hearts, weeping daughters, devastated parents and petrified young husbands running for their lives chased by serious criminal cases, when their ‘sin’ is that they fell in love. 10. Therefore, in Jitender Kumar’s case supra, the FIR registered under Section 363, 366 and 376 was ordered to be quashed and the couple i.e. accused-petitioner Jitender Kumar and prosecutrix, irrespective of minors were allowed to live as husband and wife in the company of each other. In similar set of facts and circumstances, the apex Court in S. Varadarajan versus State of Madras, AIR 1965 Supreme Court, 942, has concluded that no case under Section 363 and 366 is made out against the accused. 11. In similar set of facts and circumstances, the apex Court in S. Varadarajan versus State of Madras, AIR 1965 Supreme Court, 942, has concluded that no case under Section 363 and 366 is made out against the accused. 11. Even a co-ordinate Bench of this Court in a recent judgment in Cr.MMO No.113 of 2016 titled Rajinder Singh versus State of H.P. & Others decided on 29.3.2017 in an identical case where the prosecutrix, belonging to a higher caste abandoned the company of her parents to join the company of her husband, the accused petitioner and solemnize marriage voluntarily with him, the Court after taking into consideration the law laid down by the apex Court has held as under:- “12. Thus, taking into consideration the averments and law, as discussed hereinabove, I find that the interest of justice will be met, in case, the proceedings are quashed, as the parties are living a peaceful life and the fact that proforma respondent No. 4, Sita Devi has married to the petitioner with her own consent, Marriage Registration Certificate (Annexure P-2), to this effect is duly placed on record. The allegation, as made in the FIR, does not disclose the commission of any offence against the petitioner. Since the complainant has now died and his legal heirs are not coming to the Court, despite service, it seems that they do not want to continue the criminal proceedings against the petitioner. 13. Accordingly, I find this case to be a fit case to exercise powers under Section 482 of the Code and accordingly F.I.R No. 277 of 2009, dated 09.10.2009, under Sections 363, 366 and 506 of the Indian Penal code, registered at Police Station, Manali, District Kullu, H.P., is ordered to be quashed. Since F.I.R No. 277 of 2009, dated 09.10.2009, under Sections 363, 366 and 506 of the Indian Penal code, registered at Police Station, Manali, District Kullu, H.P., has been quashed, consequent proceedings/Challan pending before the learned Judicial Magistrate 1st Class, Manali, District Kullu, H.P. against the petitioner, are thereby rendered in-fructuous. However, the same are expressly quashed so as to obviate any confusion.” 5. In view of what has been said hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, FIR No. 202 of 2017 registered against petitioner No. 1-accused at the instance of petitioner No. 2-complainant in Police Station, Indora is quashed and set aside. However, the same are expressly quashed so as to obviate any confusion.” 5. In view of what has been said hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, FIR No. 202 of 2017 registered against petitioner No. 1-accused at the instance of petitioner No. 2-complainant in Police Station, Indora is quashed and set aside. The pending criminal proceedings, if any, shall also stand quashed. 6. The petition is accordingly disposed of, so also the pending application(s), if any.