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2018 DIGILAW 526 (HP)

Nand Kishore v. State of Himachal Pradesh

2018-04-03

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

body2018
JUDGMENT : Dharam Chand Chaudhary, J. In this writ petition following relief’s has been sought to be granted:- “a. That respondents No.1 to 5 be directed to produce Pariksha Thakur, daughter of the petitioner, in this Hon’ble Court. b. That the custody of the minor daughter of the petitioner be restored to the petitioner and his wife." 2. The order passed in this writ petition on the previous date, i.e. 27.03.2018, reads as follows:- “Consequent upon the orders passed on the previous date, learned Additional Advocate General has placed on record the status report. As per this report, the investigation is still in progress. Respondent No. 6 (accused in FIR No. 4 of 2018), though was neither traceable nor available to the police, however, he is present in person along with the daughter of the petitioner. Mr. H.S. Rakhra, Advocate learned counsel representing respondent No. 6 submits that they both have solemnized marriage in a temple at Panchkula. Also that a petition, registered as CRM-M-11896-2018 has also been filed by both of them in Punjab and Haryana High Court for seeking police protection. Certified copy of the order passed in this petition has also been placed on record. Pariksha, the daughter of the petitioner has disclosed her age as 18 years in the petition, she filed along with respondent No.6 in the Punjab and Haryana High Court. They seem to have solemnized the marriage and residing in the company of each other as husband and wife. Since they are present in person, therefore, the petition, so far as the relief for production of Pariksha in this Court is concerned, has turned infructuous. In case she has solemnized marriage with respondent No.6, whether the petitioner is entitled to her custody, has to be seen in the light of the legal provisions and also the judgment of this Court in Cr. MMO NO. 338 of 2016 titled Shishu Pal vs. State of H.P. decided on 10.8.2017 and its connected petition Cr.MMO No.110 of 2017 titled Inder Singh versus State of H.P. 2. Learned counsel representing the petitioner seeks time to have instructions in the matter and also to make further submissions. Allowed. List on 3rd April, 2018. Respondent No.6 is directed to attend this Court in person on the next date along with Pariksha. Learned counsel representing the petitioner seeks time to have instructions in the matter and also to make further submissions. Allowed. List on 3rd April, 2018. Respondent No.6 is directed to attend this Court in person on the next date along with Pariksha. The police of Police Station, Dehra, however, shall not arrest respondent No. 6, who is an accused in FIR No. 4 of 2018, registered in the said Police Station. The custody of Pariksha shall also remain with respondent No.6 in the meanwhile.” 3. Mr. N.S. Chandel, Advocate, representing the petitioner, while citing the judgment of the Apex Court, in Independent Thought versus Union of India and Another, (2017) 10 SCC 800, has made an effort to persuade us that even if Pariksha has solemnized marriage with respondent No.6, being minor below 18 years of age, she cannot live in the company of the said respondent. The ratio of the judgement cited by Mr. Chandel is that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. Exception 2 of Section 375 IPC as per this judgment creates an unnecessary and artificial distinction between a married girl child and unmarried girl child having no rational nexus nor any object sought to be achieved. Exception 2 of Section 375 IPC needs meaningful reading, i.e. “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape”. Also that it is reading of Exception 2 in this manner that social justice to a married girl child and the constitutional vision of the framers of our Constitution, can be preserved and protected. Such, however, is not the situation before us in the present case. 4. On the other hand, Smt. Suman Rani, the mother of Pariksha and complainant in FIR No. 4 of 2018, dated 04.01.2018, registered under Sections 363 & 366-A IPC, in Police Station, Dehra, District Kangra, H.P., against respondent No. 6 and her father Shri Rajender Singh, are present in person and seem to be in favour of amicable solution of the present controversy. The complainant submits that custody of Pariksha, her daughter, be entrusted to her so that she can solemnize her marriage as per Hindu Rites and Customary Ceremonies with respondent No. 6 Himanshu Sharma itself. The complainant submits that custody of Pariksha, her daughter, be entrusted to her so that she can solemnize her marriage as per Hindu Rites and Customary Ceremonies with respondent No. 6 Himanshu Sharma itself. The grand-father of Pariksha, also submits that since Pariksha and respondent No.6 are in company of each-other since long, therefore, they (complainant party) have to take a decision to settle them in their life, meaning thereby that the controversy is considerably narrowed down. 5. So far as the relief sought in this petition is concerned, we have already said in the order supra that for the grant of the said relief the petition has already turned infructuous because respondent No.6 Himanshu Sharma and Pariksha both have appeared at their own in this Court on the previous date of hearing. 6. Now, if coming to the second prayer, this Court has held in Cr.MMO No. 338 of 2016, titled Shishu Pal versus State of H.P., decided on 10.08.2017, that the custody of wife may be minor must remain in the company of her husband. Therefore, we are not inclined to entrust the custody of Priksha to her mother, the complainant. 7. Any how, in view of the subsequent development narrated above, the writ petition is finally disposed of, leaving it open to Pariksha to visit the house of her parents at village Dalwal (Khudiana), Post Office Tiyamal, Tehsil Dehra, District Kangra, H.P., along with respondent No. 6 Himanshu. If so desire, they may accompany the complainant and her father Rajender Singh, present in the Court, today itself. We hope and trust that in case Pariksha and respondent No. 6 Himanshu visit the house of the complainant Suman Rani, as desired by her, they will not be manhandled or harassed in any manner whatsoever. We are not commenting upon their marriage, however, as per the record presuming them husband and wife, we further direct that without there being any authoritative adjudication qua their marriage, the complainant party shall not force them to part with the company of each-other. We are also not commenting upon criminal case registered under Section 363 & 366-A of IPC, in Police Station, Dehra, District Kangra, H.P., vide FIR No.4 of 2018 on 04.01.2018. We are also not commenting upon criminal case registered under Section 363 & 366-A of IPC, in Police Station, Dehra, District Kangra, H.P., vide FIR No.4 of 2018 on 04.01.2018. However, in the given facts and circumstances, the police of Police Station, Dehra, is directed not to arrest respondent No.6 Himanshu in this case, for a period of two weeks from today, enabling thereby him to approach the competent Court for grant of bail. Pending applications, if any, shall also stand disposed of.