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2024 DIGILAW 538 (MP)

Ashutosh v. State of Madhya Pradesh

2024-08-06

SUBODH ABHYANKAR

body2024
ORDER 1. Heard finally, with the consent of the parties. 2. This petition has been filed by the petitioners under section 482 of the Cr.P.C., being aggrieved of the order passed by the Revisional Court in Criminal Revision No.49/2022 dated 7.1.2023, arising out of order of framing of charges dated 11.2.2021, passed in Criminal Case No.1550/2020 by the Judicial Magistrate First Class, Ujjain, whereby, charge under section 11 of the Prohibition of Child Marriage Act, 2006 (hereinafter referred to as the „Act of 2006 ) has been framed against the petitioners. 3. In brief, the facts of the case are that the marriage of petitioner No.1, who was above 19 years old, was solemnized on 3.7.2019 with one Radhika, aged more than 19 years, the daughter of the complainant. After the marriage was solemnized, a complaint was made by the father of Radhika, alleging that at the time of his marriage, petitioner No.1 Ashutosh was less than 21 years of age, on the basis of which, an FIR was registered under section 9/11 of the Act of 2006, and subsequently, after filing of the charge-sheet, the learned Judge of the trial Court has framed the charge only under section 11 of the Act of 2006, whereas, the charge under section 9 was dropped on the ground that at the time of marriage, the age of the petitioner No.1 s wife was more than 18 years. The charge under section 11 was framed, stating that despite knowing that the petitioner No.1 was minor at the time of his marriage, the petitioners No.2 and 3 being his parents, have solemnized his marriage with Radhika, which is punishable under section 11 of the Act of 2006. 4. Counsel for the petitioner has submitted that after section 9 of the Act of 2006 was dropped, there was no reason for the learned Judge of the Trial Court to frame charge under section 11 which provides for punishment for promoting or permitting solemnization of child marriages. 4. Counsel for the petitioner has submitted that after section 9 of the Act of 2006 was dropped, there was no reason for the learned Judge of the Trial Court to frame charge under section 11 which provides for punishment for promoting or permitting solemnization of child marriages. It is further submitted that the child marriage has also been defined by the Supreme Court in the case of Hardev Singh v. Harpreet Kaur and Others passed in Criminal Appeal No.1331 of 2013, and since the petitioner No.1, who happens to be a child himself, cannot be convicted under section 11 of the Act of 2006, whereas, the petitioner No.3 Guddan Bai happens to be the mother of the petitioner No.1, and she being a woman, cannot be sentenced to imprisonment as provided under section 11 of the Act of 2006. 5. Counsel has also submitted that otherwise also, the petitioner No.1 is residing happily with his wife Radhika as both of them are major now, and have solemnized marriage by following proper rituals through Arya Samaj; photographs and Certificate regarding which have also been placed on record. An affidavit of Radhika has also been filed on record in which she has stated that she has solemnized the marriage with the petitioner No.1 on 18.7.2020, and is living happily with him. She has also stated that since her father was unhappy with their marriage, hence the FIR was lodged by him against the petitioners. 6. Counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out as the petitioners No.2 and 3 are the parents of petitioner No.1, who, according to the prosecution, was also a child at the time of his marriage i.e. on 3.7.2019. 7. 6. Counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out as the petitioners No.2 and 3 are the parents of petitioner No.1, who, according to the prosecution, was also a child at the time of his marriage i.e. on 3.7.2019. 7. Since the counsel for the petitioners had submitted that the petitioner No.1 and the girl has already got married and are living happily, after the petitioner No.1 attained the age of majority, photographs of their marriage have also been filed on record; this Court, vide its order dated 2.8.2024 had also directed the parties to be present before this Court in person and pursuant to which, the parties have also appeared and on a query made by this Court, both, the petitioner No.1 and his wife have stated that they have already got married and do not want to prolong the matter any further, which was filed at the instance of the father of Radhika. 8. Heard counsel for the parties and perused the record. 9. On the aforesaid factual background, this Court is required to decide if the prosecution can continue against the petitioners. At this juncture, it would be apt to refer to section 9 and section 11 of the Act of 2006, which reads as under :-- “9. Punishment for male adult marrying a child.— Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. xxxxxxxxx 11. Punishment for promoting or permitting solemnisation of child marriages.—(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees: Provided that no woman shall be punishable with imprisonment. (2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.” (Emphasis Supplied) 10. Admittedly, the charge-sheet was filed under sections 9 and 11 of the Act of 2006 whereas, the charges have been framed only under section 11, and the contention of the petitioner is that, since the petitioners have already been exonerated under section 9, they cannot be tried under section 11. 11. It is found that the petitioner No.1 was only 19 years old at the time of marriage and he was not of the marriageable age as provided under Clause (a) of section 2 of the Act of 2006 and, in such circumstances, he cannot be tried under section 11 of the Act of 2006, which provides for prosecution of any other person whether parent or guardian or any other person etc., thus, the aforesaid section does not encompasses in its scope the minor child himself. In such circumstances, the petitioner No.1 who was minor at the time of marriage cannot be charged u/s.11 of the Act of 2006. 12. Whereas, so far as the petitioners No.2 and 3 are concerned, who are the parents of the petitioner No.1, although they are liable to be prosecuted for the offence under section 11 of the Act of 2006. Needless to say, that so far as the petitioner No.3 is concerned, who is a woman, would fall under the proviso to section 11, which provides that no woman shall be punishable with imprisonment. 13. In view of the same, the petition is hereby partly allowed and the charge so far as it relates to the petitioner No.1 is concerned, the same is hereby quashed. However, the trial Court shall proceed against the petitioner Nos.2 and 3 in accordance with law. 14. It is made clear that this Court has not reflected upon the merits of the case. 15. With the aforesaid, the petition stands disposed of.