Smt. Neha Kumari and Another v. State of U.P. and 2 Others

Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 17799 of 2023 Petitioner :- Smt. Neha Kumari And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Raghvendra Pratap Singh Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Manish Kumar Nigam,J.

¶1Supplementary affidavit filed by learned counsel for the petitioner is taken on record.

¶2Heard Shri Raghvendra Pratap Singh, learned counsel for the petitioners, Sri Yash Pratap Singh, learned counsel for the informant, Shri G. P. Singh, learned A.G.A. for the State respondents and perused the record.

¶3The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 18.10.2023, registered as Case Crime No. 0329 of 2023, under Section 366, 120-B I.P.C., PS Sahawar, District Kasganj and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

¶4Learned counsel for the petitioners submitted that no offence under Section 366 IPC is made out as the petitioner no.1 is major and the entire criminal case lodged by the informant is nothing but an abuse of the process of the law. It is further submitted that as per Adhar Card, date of birth of petitioner no.2 Brijesh is

11.07.2000 and as per High School Certificate, date of birth of petitioner no. 1 Neha Kumari is 01.03.2002 and as such, the petitioners no. 1 and 2 are major on the date of incident and they have married on their sweet will and no offence has been committed. By drawing the attention to the statement of victim/petitioner no. 1 recorded under Section 200 Cr.P.C. in Case No. 35177 of 2023, filed by petitioner no. 1 and it is submitted that she has categorically stated in the court that she had married to petitioner no. 2 Brijesh on 24.10.2023 and they had gone for registration of their marriage on 25.10.2023 and the family members are annoyed as this marriage was against their wish. 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. The 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 18 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."

¶5Per contra, learned counsel for the respondent has disputed the age of the husband i.e. petitioner no. 2 and submitted that as per the High School Certificate the date of birth of the petitioner No. 2 is 11.07.2005. However, could not dispute the fact that the victim is major and she had given her statement before the court below. Certified copy thereof has been annexed with the supplementary affidavit.

¶6In 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.2 had left her home with the petitioner no.1 willingly and is living with him as a married woman.With regard to the dispute regarding date of birth of petitioner no. 2, in our opinion this would not effect the merits of the present petition wherein offence under Section 366 I.P.C. is involved.

¶7In view of the above, the writ petition succeeds and is allowed. The impugned First Information Report dated 18.10.2023, registered as Case Crime No. 0329 of 2023, under Section 366, 120-B I.P.C., PS Sahawar, District Kasganj as well as all consequential proceedings are hereby quashed.

¶8We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners. Order Date :- 16.11.2023 Ved Prakash High Court of Judicature at Allahabad