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2017 DIGILAW 923 (HP)

SHISHU PAL v. STATE OF H. P.

2017-08-10

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. This judgment shall dispose of the present petition and also Cr.MMO No. 110 of 2017 filed by both accused in FIR No. 64/14 registered in Police Station, Rajgarh, District Sirmaur for quashing the same and also consequential proceedings pending disposal in the Court of learned Sessions Judge, Sirmaur District at Nahan. 2. It is seen that the complainant in this case is Om Singh of village and Post Office Habban (Shivpur), Tehsil Rajgarh District Sirmaur, H.P. He is respondent No.2 in Cr.MMO No.338 of 2016. The prosecutrix (name withheld) is daughter of the complainant. The prosecutrix and the petitioner Shishu Pal, fell in love with each other. Their parents were also aware about it, however, the petitioner a member of Scheduled Caste community whereas the prosecutrix Rajput, her parents were not ready, at any cost, to solemnize her marriage with accused Shishu Pal. When her parents started preparation of her marriage with someone else, the prosecutrix on 12.8.2014 eloped with petitioner Shishu Pal and solemnized inter-caste marriage somewhere at Chopal. The co-accused of the petitioner Shri Inder Singh, who is petitioner in connected petition, is his real brother. He allegedly facilitated the elopement of the prosecutrix with his brother, the principle accused Shishu Pal and solemnization of marriage by both of them. On this the matter came to be reported to the Police of Police Station Rajgarh, District Sirmaur on 21.8.2014. Initially the FIR Annexure P-4 (Colly.)(page 25) was registered under Section 363, 366 read with Section 34 of the Indian Penal Code against both accused-petitioners. During the course of investigation, the offence punishable under Section 368 and 376 IPC was also added and accordingly the report under Section 173 Cr.P.C., Annexure P-4 filed in the Court. 3. The criminal case is still pending disposal in the trial Court. The petitioner was ordered to be admitted on bail by a co-ordinate Bench of this Court vide order dated 4.11.2014, Annexure P-1, passed in Cr.MP(M) No.967 of 2014. The criminal writ petition registered as Cr.WP No.20 of 2014 filed by the petitioner seeking police protection was permitted to be withdrawn by a Division Bench of this Court with liberty reserved to the petitioner to file fresh petition. 4. The facts, on the record further reveals that the accused-petitioner Shishu Pal and the prosecutrix are presently residing in the matrimonial home as husband and wife. 4. The facts, on the record further reveals that the accused-petitioner Shishu Pal and the prosecutrix are presently residing in the matrimonial home as husband and wife. Though after registration of the case, her father, the complainant, had taken away her with him from Theog on 25.8.2014, where she was in the company of her husband accused-petitioner Shishu Pal. As per her affidavit Annexure P-5 (page 64) sworn in on 28.9.2016 and filed in the Registry of this Court on 6.10.2016, she re-joined the company of her husband on 25.9.2016. The marriage even also consummated after 25.9.2016. In the affidavit she has claimed her age as 20 years. As a matter of fact, as per the submissions made, she was born on 3.6.1996. During the course of proceedings in the application, the accused petitioner filed for grant of bail in this Court, the prosecutrix also appeared in person and filed an affidavit that she was born on 3.6.1996, however, as per her date of birth certificate, Annexure P-3 she was born on 3.6.1998. Meaning thereby that on the date of her elopement with accused-petitioner Shishu Pal i.e. 15.8.2014. she was above 16 years of age. 5. True it is that the prosecutrix was minor. So far as the commission of offence punishable under Section 363, 366 and for that matter under Section 376 IPC and Section 4 of the POCSO Act 2012, is concerned, after her elopement with accused-petitioner Shishu Pal and solemnization of marriage with him, she was compelled to abandon his Company at the behest of her parents and she started leaving with her parents thereafter. 6. It is satisfactorily established at this stage that the accused-petitioner have never used any force in enticing her away or compelled her to leave the company of her parents. As per her version in the statement recorded on 26.8.2014 under Section 164 Cr.P.C., she eloped with the accused-petitioner in her free volition and intended to join the company of her husband. She had refused to return to her parental house and live there. 7. Interestingly enough, the complainant (respondent No.2), when appeared before this Court on 7.3.2017 was allowed to meet the prosecutrix, who was also present in the court on that day. She had refused to return to her parental house and live there. 7. Interestingly enough, the complainant (respondent No.2), when appeared before this Court on 7.3.2017 was allowed to meet the prosecutrix, who was also present in the court on that day. When the matter was re-called and he again appeared in the Court stated that the accused-petitioner, as revealed by his daughter the prosecutrix, is treating her nicely in the matrimonial home. Also that since she was happy in the company of her husband, therefore, he was not interested to contest the present petition. His statement to this effect was recorded separately on that day. Consequently, following order came to be passed on that day:- “ Respondent No. 2 Om Singh is present in person. He was given an opportunity to contest this petition. He, however, complained that he was not allowed to meet his daughter (prosecutrix in this case), ever since her abduction by petitioner Shishu Pal, against whom FIR under Sections 363, 366, 368 and 376 IPC has been registered by the police at his instance. Since his daughter, the prosecutrix, is present in person today in the Court, there fore, he was allowed to meet her outside the Court. The case when recalled, respondent No.2 opted for not filing reply to this petition as according to him during his conversation with his daughter, it is disclosed by her that she has solemnized marriage with Shishu Pal and that she is happy in his company. His statement to this effect has also been recorded separately. As prayed, list on 29th March, 2017.” 8. Therefore, the complaint, if any, of the father of the prosecutrix as find recorded in the order ibid was that the accused-petitioner did not allow him to meet his daughter ever-since her abduction. 9. His statement to this effect has also been recorded separately. As prayed, list on 29th March, 2017.” 8. Therefore, the complaint, if any, of the father of the prosecutrix as find recorded in the order ibid was that the accused-petitioner did not allow him to meet his daughter ever-since her abduction. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 infructuous. 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 infructuous. However, the same are expressly quashed so as to obviate any confusion.” 12. Having said so, the present is a fit case where allowing the pending criminal proceedings to continue against the accused petitioner would be nothing but merely an abuse of the process of law. Being so, FIR No.64/14 registered in Police Station, Rajgarh, District Sirmaur, H.P. is quashed and set aside. As a result thereof, the criminal proceedings having arisen out of the FIR pending disposal in the court of learned Sessions Judge Sirmaur District at Nahan will also stand quashed. This petition and connected one are accordingly allowed and stands disposed of.