Smt. Khushi and Another v. State of U.P. and 3 Others

Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 17259 of 2023 Petitioner :- Smt. Khushi And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Hare Krishna Tripathi Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Vinod Diwakar,J.

1.Sri Rajendra Prasad, learned counsel has moved his Vakalatnama on behalf of respondent no. 4, which is taken on record.

¶2Heard Sri Mahesh Kumar Tripathi, Advocate, holding brief of Sri Hare Krishna Tripathi, learned counsel for the petitioners, Sri Rajendra Prasad, learned counsel for the respondent no. 4 and Sri H.K. Kushwaha, learned State counsel and perused the record.

¶3The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated

20.08.2023 registered as Case Crime No. 80 of 2023, under Section 366 IPC, PS Shahjahanpur, District Jhansi and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

¶4Submission of learned counsel for the petitioners is that no case has been made out as per the first information report itself, daughter of the informant is aged about 18 years. By drawing attention to annexure no.4 to the petition, it is submitted that petitioners have already registered their marriage. It is submitted that as per High School Mark-Sheet, the date of birth of petitioner no. 1-Smt. Khushi is

19.06.2005 and date of birth of petitioner no. 2-Chanderbabu is 05.07.1996 and as such, the petitioners no. 1 and 2 are major and they have married on their sweet will and no offence has been committed. Reliance has been placed on a judgement and order dated 5.12.2022 passed by this Court in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) to submit that under identical circumstances the petition was allowed and FIR therein was quashed.

¶5The aforesaid order dated 5.12.2022 passed in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) is quoted as under: "Heard learned counsel for the petitioners and learned AGA. Present writ petition has been preferred for quashing the FIR dated

25.10.2022 being Case Crime No.0475 of 2022 under Section 366 IPC, P.S. Saurikh, Distt. Kannauj and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR. Placing reliance on the Aadhar Card of the victim girl showing her date of birth as 1.1.2004, it is submitted by the learned counsel for the petitioners that the petitioner no.1 is a major girl aged about more than

years

on

the

date

of

incident.

The present petition has been filed with the declaration, jointly by both the petitioners no.1 & 2 that the petitioner no.1 had left her paternal home out of her own sweet will and being a major girl, she is free to take her choice to perform marriage with the petitioner no.2. The present petition, however, has been filed on the assertion that no offence under Section 366 IPC is made out as the petitioner no.1 is a major girl. The entire criminal case lodged by the respondent no.3 is nothing but an abuse of the process of the law. Learned counsel for the petitioners has further contended that in view of the aforesaid facts and circumstances, the impugned FIR is liable to be quashed in view of the Supreme Court's judgment in Kavita Chandrakant Lakhani vs. State of Maharashtra & Anr reported in AIR 2018 SC 2099, wherein it was held that to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC. As regards the age of the victim girl, as indicated in the Aadhar Card appended as Annexure No.2 to the writ petition, no dispute has been raised by learned AGA. It is, thus, clear that both the petitioners are major. The fact that the present writ petition has been filed with the declaration by the victim girl and that she is living voluntarily in the company of the petitioner no.2, is supported with the signature of the victim girl on the Vakalatnama. Once the age of the victim girl is not in dispute, the petitioners no.1 & 2 cannot be made accused for committing offence under Section 366 IPC as victim had left her home in order to live with the petitioner no.2. We make it clear that the question in the present petition is not about the validity of marriage of two individuals i.e. petitioners no.1 & 2. Rather, the issue is about the life and liberty of two individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. In view of the above discussion, we are of the considered view that from the first information report no offence under Section 366 IPC is made out, inasmuch as, both the petitioners are major and the petitioner no.1 has come up with the categorical stand that she had left her home with the petitioner no.2 willingly and is living with him as a married woman. In view of the above, the writ petition succeeds and is allowed. The FIR dated 25.10.2022 being Case Crime No.0475 of 2022 under Section 366 IPC, P.S. Saurikh, Distt. Kannauj as well as all consequential proceedings are hereby quashed. We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners."

¶6Per contra, learned State Counsel and learned counsel for the informant though has opposed the petition, however, could not dispute the aforesaid fact.

¶7In view of the above discussion, we are of the considered view that from the first information report no offence under Section 366 IPC is made out, inasmuch as, the petitioners no. 1 and 2 are major and the petitioner no. 1 has come up with the categorical stand that she had left her home with the petitioner no. 2 willingly and is living with him as a married woman.

¶8In view of the above, the writ petition succeeds and is allowed. The FIR dated 20.08.2023 registered as Case Crime No. 80 of 2023, under Section 366 IPC, PS Shahjahanpur, District Jhansi as well as all consequential proceedings are hereby quashed.

¶9We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners. Order Date :- 3.11.2023/Vibha High Court of Judicature at Allahabad High Court of Judicature at Allahabad