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2017 DIGILAW 615 (ALL)

BHARTI v. STATE OF U. P.

2017-02-22

REKHA DIKSHIT, SHASHI KANT GUPTA

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JUDGMENT : Hon'ble Shashi Kant Gupta, J. Hon'ble Mrs. Rekha Dikshit, J. This petition has been filed for quashing the impugned order dated 21.01.2017 passed by the Chief Judicial Magistrate, Aligarh in Case Crime No. 926 of 2016 under Sections 363, 366 and 368 I.P.C., Police Station Quarasi, District Aligarh wherein respondent No.4 has been directed to produce the petitioner No.1 forthwith before this Hon'ble Court and set at liberty. The FIR was lodged on 03.10.2016 which was registered as Case Crime No.926 of 2016 under Sections 363, 366 and 368 I.P.C., Police Station Quarasi, District Aligarh. According to the FIR, appellant No.2 Suresh Kumar enticed away petitioner No.1 Bharti (detenue) with the help of his friends. Despite the best efforts made by the informant, she could not be traced out. A writ petition No. 24482 of 2016 was filed by the petitioners with the prayer to quash the FIR dated 03.10.216 registered as Case Crime No. 926 of 2016, under Sections 363, 366, 368 I.P.C, Police Station Quarasi, District Aligarh. This Court by order dated 01.12.2016 disposed of the writ petition with the direction to record the statement of the petitioner No.1 under Section 164 Cr.P.C. and produce before the concerned CMO by the concerned police officer for medical examination for the purpose of determining her age. The statement of petitioner No.1 Smt. Bharti (detenue) was recorded under Section 161 and 164 Cr.P.C. wherein she stated that a false FIR was lodged by her father as she had gone with the petitioner No.2 Suresh Kumar out of her own free will and wants to live with her husband. In the meanwhile, an application was filed by respondent No.5 Rajendra alias Raju (father of petitioner No.1) to release the petitioner No.1 in his custody. The said application was rejected by the court below with the direction to send the victim to Nari Niketan, Mathura. The petitioner feeling aggrieved with the said order has filed a petition seeking a prayer for setting the petitioner No.1 at liberty and quashing the impugned order dated 21.01.2017. Learned counsel for the petitioner stated that, according to the medical report, the age of the girl is 19 years and in her statement recorded under Section 164 Cr.P.C has categorically stated that she wants to live with her husband petitioner No.1 Suresh Kumar. Learned counsel for the petitioner stated that, according to the medical report, the age of the girl is 19 years and in her statement recorded under Section 164 Cr.P.C has categorically stated that she wants to live with her husband petitioner No.1 Suresh Kumar. In this writ petition, a certificate has been issued by Arya Samaj Mandir Trust, Delhi certifying that the petitioner Nos.1 and 2 had got married with each other on 29.09.2016. According to the marriage certificate, both petitioner No.1 and 2 have been shown to be married and the age of petitioner No.1 Smt. Bharti has been shown as 08.09.1997. Learned counsel for the petitioner stated that, since, she is major and has got married to petitioner No.1. Her detention in Nari Niketan is illegal and order passed by concerned CJM is liable to be set aside and petitioner No.1 be set at liberty and be allowed to go wherever she likes. Per contra, learned AGA has submitted that the alleged marriage of petitioner No.2 with petitioner No.1 is illegal and void since, the petitioner No.2 is already a married person and the alleged marriage with petitioner No.1 is a second marriage. It has further been observed that according to the educational certificate of petitioner No.1, she is still minor. Heard learned counsel for the petitioners, learned A.G.A. for the State and perused the material on record. It is notable that the alleged marriage of petitioner No.2 Suresh Kumar with petitioner No.1 Smt. Bharti is a second marriage and in the impugned order it has been categorically observed that the petitioner No.2 had earlier married with one Seema alias Neha and still no divorce decree has been passed, therefore, the first marriage of petitioner No.2 with Seema still subsists and his first wife Seema has already filed a Criminal Case against him under Section 498A I.P.C. and 125 Domestic Violence Act and the same is still pending. This fact, that petitioner No.2 is already a married person and his first wife is still alive and his marriage has not yet been annulled, has not been disputed by learned counsel for the petitioner. A perusal of the record further shows that according to the education certificate, the date of birth of petitioner No.1 is 03.10.2001, according to which she is still minor. A perusal of the record further shows that according to the education certificate, the date of birth of petitioner No.1 is 03.10.2001, according to which she is still minor. According to the Juvenile Justice (Care and Protection of Children) Act, 2015 and rules made thereunder, the education certificate will have precedence over the medical report, therefore, in view of the education certificate, the petitioner No.1 is still a minor. The petitioner No.1 (detenue) has stated in her statement before the court below that she does not want to go with her father as she apprehends danger to her life from her father who is habitual drunkard and wants to get her married with some aged person. In case if she is sent along with her father, he would kill her. Keeping in view the facts and circumstances of the case, the court below had no other option but to send her to Nari Niketan, Mathura, as petitioner No.2 Suresh Kumar was already married before and his first wife was living. Section 5(1) of Hindu Marriage Act provides certain conditions for Hindu marriage which are as follows: According to Section 5(1) neither party should have a spouse living at the time of marriage and according to the Section 11 of Hindu Marriage Act, 1955 "Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5." In the present case, admittedly, petitioner No.2 was having a spouse living at the time of alleged marriage with petitioner No.1, therefore, in view of the above provisions the second marriage with the petitioner No.2 is a void marriage. It may be further noted that the certificate which has been obtained from Arya Samaj Mandir Trust, Delhi is obtained by playing fraud by not declaring the true and correct facts that the petitioner No.1 is a minor and petitioner No.2 was already having a spouse living at the time of marriage. In view of the facts and circumstances of the case, petitioner No.2, infact, is liable to be prosecuted under Section 494 I.P.C. in accordance with law. In view of the facts and circumstances of the case, petitioner No.2, infact, is liable to be prosecuted under Section 494 I.P.C. in accordance with law. In the present case, it is noteworthy that there is nothing on record to show that first marriage of petitioner No.2 has already been annulled or any divorce decree has been passed. In view of the facts and circumstances of the case, we do not find any merit in the present writ petition. The writ petition is accordingly, dismissed.