Saroj Devi vs State Of Haryana & Ors on 9 August, 2012

[Cites 6, Cited by 2]

Punjab-Haryana High Court

Saroj Devi vs State Of Haryana & Ors on 9 August, 2012

Feeling aggrieved against the alleged inaction on the part of the respondent authorities, the petitioner has approached this Court, by way of instant petition under Section 482 Cr.P.C., invoking its inherent jurisdiction, seeking direction against the official respondents, to register FIR against respondent No.5 and also for setting aside the order dated 31.07.2012 (Annexure P-7), passed by the learned Sessions Judge, Rohtak, whereby respondent No.4-minor daughter of the petitioner was directed to be kept in the protection home, as she was facing threat to her life and liberty at the hands of the petitioner and her family members.

During the course of hearing, when confronted with law laid down by the Hon'ble Supreme Court in the case of Sakiri Vasu State of U.P. and others 2008(2) SCC 409, learned counsel for the petitioner fairly Criminal Misc. M-No. 23991 of 2012(O & M) 2 states that he does not intend to press this petition, so far as the first prayer of the petitioner seeking direction for registration of the FIR is concerned.

However, learned counsel for the petitioner vehemently contended that in the facts and circumstances of the present case, the order dated 31.07.2012 passed by the learned Sessions Judge, Rohtak vide Annexure P-7 was wholly unsustainable in law. To substantiate his contention, learned counsel for the petitioner further submitted that daughter of the petitioner being minor in age, she was not capable of giving her consent. He submits that since the daughter of the petitioner was not capable of giving her consent, her marriage with respondent No.5 was not valid. However, on specific question having been put by the Court, as to how the marriage was void, learned counsel for the petitioner fairly states that marriage between respondents No.4 and 5 was not void but voidable.

Learned counsel for the petitioner contended that the daughter of the petitioner being minor, the petitioner was entitled for her custody. He contended that the learned Sessions Judge, Rohtak has committed patent error of law while sending respondents No.4 and 5 to the protection home instead of granting the custody of respondent No.4 to the petitioner. Learned counsel for the petitioner, thus, concluded by submitting that the impugned order dated 31.07.2012 (Annexure P-7) passed by the learned Criminal Misc. M-No. 23991 of 2012(O & M) 3 Sessions Judge, Rohtak was unsustainable in law. It may be set aside allowing the instant petition and custody of the minor daughter of the petitioner may be granted to the petitioner.

I have heard learned counsel for the petitioner and with his able assistance have gone through the record of the case. Having given thoughtful consideration to the contentions raised and in view of the peculiar fact situation of the present case, this Court is of the considered opinion that the present case is wholly misconceived and it must fail being devoid of any merit. I say so for more than one reasons, being recorded hereinafter.

Facts first. The petitioner alleges that respondent No.4 is her minor daughter, whose date of birth is 17.05.1995 as per her birth certificate appended as Annexure P-1 and her year of birth is also claimed to be 1995 on the basis of Annexure P-2. It is further alleged that respondent No.5 had kidnapped respondent No.4-minor daughter of the petitioner. She was taken to Gaziabad where respondent No.5 compelled her to marry with him. A copy of the marriage certificate is appended as Annexure P-3 with this petition.

It is further a matter of record that getting married with each other of their own free will, respondents No.4 and 5, were facing imminent danger to their life and liberty at the hands of petitioner and her family members. Thus, they approached the learned Sessions Judge, Rohtak, by Criminal Misc. M-No. 23991 of 2012(O & M) 4 way of Protection Application No.47 dated 21.07.2012 (Annexure P-4), wherein the petitioner, her husband and elder brother of her husband were respondents No.4 to 6, whereas the parents of respondent No.5 were impleaded as respondents No.7 and 8. Superintendent of Police, Rohtak and SHO Police Station Shivaji Colony were respondents No.2 and 3, whereas State of Haryana through Secretary Home Department, Chandigarh was respondent No.1.

The learned Sessions Judge, Rohtak recorded the joint statement of petitioner, her husband Ramesh and brother of her husband, on 31.07.2012, vide Annexure P-5. Their joint statement reads as under:

Protection Application Preeti & another Vs. State Statement of Ramesh S/o Shri Ram, Age-38 yrs, Labour Statement of Saroj w/o Ramesh, Age-34 yrs, Labour Statement of Suresh S/o Shri Ram, Age-48 yrs, Labour R/o 2727 Amrit Colony, Rohtak, on oath Stated that Preeti & Pradeep have married each other. Petitioners no. 1 & 2 have no danger from all three of us. Whereas the date of birth of Petitioner No. 1 is 17/05/1995. This date is mentioned in the certificate of the Committee/PGIMS Rohtak. In middle school certificate it is Criminal Misc. M-No. 23991 of 2012(O & M) 5 23/03/1995 on which Photo of petitioner no. 1 is visible. According to both these certificates petitioner no. 1 is minor and her custody be given to us.

          RO & AC                                           Sd/-

          Sd/- Ramesh                          Inderjeet Mehta

          Sd/- Suresh                          Session Judge

          Sd/- Saroj                           Rohtak

                                               31/7/2012

Similarly, the joint statement of respondents No.4 and 5, who were the petitioners in above said Protection Application, was also recorded by the learned Sessions Judge, Rohtak, vide Annexure P-6 and the same reads as under:

Protection Application Preeti & another Vs. State Statement of Preeti W/o Ramesh Age 18 years r/o 2727 Amrit Colony Rohtak present address 3030/34 Sri Ram Nagar, Sunaria Road, on Oath Statement of Pradeep S/o Mohinder age 22 yrs Building Material Supplier R/o 303/34 Sri Ram Nagar, Sunaria Road, on Oath It is stated that we have solemnized marriage as per Hindu rituals on 20/07/2012. We apprehend danger to Criminal Misc. M-No. 23991 of 2012(O & M) 6 our lives from respondents no. 4 to 8. We required police protection. We want to stay under police protection. We both belong to different castes. Petitioner no. 2 runs a shop of building material and earns 25000 per month.

            RO & AC                                             Sd/-

            Sd/- Preeti                                Inderjeet       Mehta

            Sd/- Pradeep                               Session Judge

                                                       Rohtak

                                                     21/07/2012

The petitioner and her husband were claiming the custody of respondent No.4 on the basis of their above statements claiming respondent No.4 to be minor. On the other hand, respondents No.4 and 5 were apprehending danger to their life and liberty at the hands of petitioner and her family members. Respondents No.4 and 5 stated before the learned Sessions Judge, Rohtak, that as they were apprehending danger to their life, they wanted to live in the protection home. Accordingly, the learned Sessions Judge, Rohtak, directed vide his order dated 31.07.2012 that respondents No.4 and 5 be kept in the protection home till the time they want to live there.

It is pertinent to note here that all the parties were represented by their respective counsel before the learned Sessions Court. The order Criminal Misc. M-No. 23991 of 2012(O & M) 7 dated 31.07.2012 passed by the learned Sessions Judge, Rohtak, sending respondents No.4 and 5 to the protection home reads as under:

Present : Both the petitioners with Shri Rajnesh Vats, Advocate Shri Narsher Singh, PP for the State alongwith Mahender Singh ASI, Police Station, Shivaji Colony, Rohtak Respondents No. 4 to 6 with Shri Pawan Jangra, Advocate Respondents No. 7 and 8 with Shri Kartar Singh, Advocate Pursuant to the notices issued by this Court, respondent No. 4 to 8 have put in appearance, Respondent No. 4 to 6 have made joint statement that the date of birth of the petitioner No. 1 Preeti is 17.5.1995 and she is minor and therefore, her custody may be given to them, whereas the respondent No. 7 and 8 have made a joint statement that they have no objection to the marriage performed by the petitioners.

Keeping in view the said statements, the petitioners have also made a joint statement that they apprehend danger to the lives from the respondents No. 4 to 6 and therefore, they still want to live in the protections home. As such, it is directed the petitioners be kept in the protection home till they want to live there. The present protection petition is hereby dismissed. A Criminal Misc. M-No. 23991 of 2012(O & M) 8 copy of this order be given dasti to the said ASI. File after compliance be consigned to the record room.

Sd/-

(Inderjeet Mehta) Session Judge Rohtak 31/07/2012 Despite the above said order having been passed in the very presence of the petitioner and her husband, they proceeded further to misuse the process of law by approaching the police of Police Station Shivaji Colony, Rohtak, to the effect that respondent No.5 has induced their daughter for marriage and she has been taken away to Delhi. It is also pertinent to note that during this very period, the husband of the petitioner approached the Police Station Shivaji Colony, Rohtak, by way of an application complaining that respondent No.5 has kidnapped their minor daughter-respondent No.4. On the application moved by the husband of the petitioner, Daily Diary No.28 dated 20.07.2012 was recorded which is appended at Annexure P-8.

Having carefully examined the above said orders passed by the learned Sessions Judge, Rohtak, this Court is of the considered view that the contentions raised by the learned counsel for the petitioner are without any substance. The first prayer made for direction to respondents No.1 to 3 for registration of the FIR against respondent No.5, though not seriously Criminal Misc. M-No. 23991 of 2012(O & M) 9 pressed by the learned counsel for the petitioner, yet the same is contrary to the law laid down by the Hon'ble Supreme Court in Sakiri Vasu's Case (Supra) as well as the law laid down by this Court in Pardeep Kumar Singh versus State of Haryana 2008 (3) RCR (Criminal) 376. The relevant observations made by this Court in para No.17 in Pardeep Kumar Singh's case (Supra) read as under:

"Protection for arrest by the police can be granted in the light of the ratio of the judgment of Joginder Kumar's case(supra) to a husband who apprehends arrest in a case of kidnapping of his wife. If intimation is received by the police of a particular district, regarding the marriage of a young couple against the wishes of their family member, a record should be maintained of said information and if a case is registered for kidnapping or abduction of the girl at the instance of her parents or other family members, the arrest can be deferred till the statement of the girl is recorded by the police."

So far as the prayer for custody of minor daughter-respondent No.4 is concerned, she is in the rightful custody of her husband- respondent No.5, with whom she has willingly married, which is crystal clear from the combined reading of orders contained in Annexures P-3 to Criminal Misc. M-No. 23991 of 2012(O & M) 10 P-7. Once the marriage of respondents No.4 and 5 is not void, custody of the minor daughter of the petitioner with her husband-respondent No.5 cannot be said to be illegal in any manner. I say so because after the marriage, husband becomes the guardian of his wife.

The petitioner cannot be held entitled for the custody of respondent No.4-her minor daughter, who has admittedly married respondent No.5 on her own sweet will. Respondents No.4 and 5 are living as husband and wife. A combined reading of Annexures P-3 and P- 4 leaves no room for doubt in this regard that respondent No.4 has married respondent No.5 without any pressure. Once that is so, there was no scope for alleging that respondent No.5 has kidnapped respondent No.4, for the simple but strong reason that it is respondent No.4 who has gone with respondent No.5 on her own. In this view of the matter, it prima facie seems that the concerned police authorities have rightly not registered the FIR against respondent No.5 because that would have been contrary to the law laid down by this Court in the case of Pardeep Kumar Singh's case (supra).

Further the Hon'ble Supreme Court evolved the principle of age of discretion more than three decades ago, in the case of S.Varadarajan versus State of Madras AIR 1965 Supreme Court 942. The relevant observations made by the Hon'ble Supreme Court in the case of S.Varharajan (Supra) read as under:

Criminal Misc. M-No. 23991 of 2012(O & M) 11

"It is not disputed that Savitri was born on November 13, 1942 and that she was a minor on October 1st. The other facts which have already been stated are also not disputed. A two-fold contention was, however, raised and that was that in the first place Savitri had abandoned the guardianship of her father and in the second place that the appellant in doing what he did, did not in fact take away Savitri out of the keeping of her lawful guardian.

The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established.

It was further observed as under:

In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to Criminal Misc. M-No. 23991 of 2012(O & M) 12 marry the appellant. There is no suggestion that the appellant took her to the Sub- Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or ,anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping ,of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited -different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was Criminal Misc. M-No. 23991 of 2012(O & M) 13 unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her."

Another equally important aspect of the matter is as to whether the instant petition under Section 482 Cr.P.C., for seeking custody of a minor by her mother, would be maintainable. It goes without saying that remedy lies elsewhere. It is also the settled principle of law that once the petitioner has got the alternative remedy, this Court would not be justified in exercising its inherent jurisdiction under Section 482 Cr.P.C., particularly, when the petitioner has failed to show any miscarriage of justice.

The inherent powers under Section 482 Cr.P.C. are to be exercised sparingly, with caution and circumspection. The limitation in this regard is provided under the Section itself. Section 482 Cr.P.C. provides three situations namely:

(i) to make such orders as may be necessary to give effect to any order under this Code

(ii) or to prevent abuse of process of law of any Court;

(iii) or otherwise to secure the ends of justice.

The scope of interference by this Court under Section 482 Cr.P.C.has been a matter of discussion in a long catena of judgments Criminal Misc. M-No. 23991 of 2012(O & M) 14 before the Hon'ble Supreme Court. A recent judgment on this issue is State of Punjab versus Devinder Pal Singh Bhullar 2012(1) RCR (Crl.)

126. The relevant observations made by the Hon'ble Supreme Court in para No. 40 in Devinder Pal Bhullar's case (Supra) reads as under:

                                 It     is     evident         from         the     above     that

                   inherent      powers            can     be exercised only to prevent

the abuse of the process of the court and to secure the ends of justice. However, powers can be used provided there is no prohibition for passing such an order under the provisions of Cr.P.C. and there is no provision under which the party can seek redressal of its grievance. Under the garb of exercising inherent powers, the Criminal Court cannot review its judgment. Such powers are analogous to the provisions of Section 151 CPC and can be exercised only to do real and substantial justice. The rule of inherent powers has its source in the maxim "Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest"

which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The order cannot be passed by-passing the procedure prescribed by law. The court in exercise of its power under Section 482 Cr.P.C. cannot direct a particular agency to investigate the matter or to investigate a case from a particular angle or by a procedure not prescribed in Cr.P.C. Such powers should be exercised Criminal Misc. M-No. 23991 of 2012(O & M) 15 very sparingly to prevent abuse of process of any court. Courts must be careful to see that its decision in exercise of this power is based on sound principles.

Reverting back to the peculiar facts and circumstances of the present case, it is the own pleaded case of the petitioner that her daughter- respondent No.4 was more than 17 years of age but she was yet to complete 18 years, which is clear from Annexures P-1 and P-2, as well. On the other hand, this fact has been specifically denied by respondent No.4-minor daughter of the petitioner who claimed herself to be more than 18 years of age, claiming her date of birth as 09.08.1992. Be that as it may, respondent No.4 has admittedly completed the 17 years of her age on 16.05.2012 and she has attained the age of 17 years and 2 months on the date of her marriage with respondent No.5 on 20.07.2012, as per marriage certificate Annexure P-3.

Thus, it is clear that in view of the law laid down by the Hon'ble Supreme Court in S.Vardharajan (supra), respondent No. 4-daughter of the petitioner has reached the age of discretion. Admittedly, her marriage with respondent No.5 is not void. Further, the marriage of petitioners No.4 and 5 cannot be said to be voidable at the instance of the petitioner, for the simple reason that this right is available only to the parties to the marriage. Although, this Court is not putting its seal of approval on the validity of the marriage of respondents No.4 and 5 because it is not the issue directly Criminal Misc. M-No. 23991 of 2012(O & M) 16 involved in the present petition, yet it is crystal clear that the marriage is not void.

In view of the totality of facts and circumstances noted above, coupled with the reasons aforementioned, this Court has no hesitation to conclude that the present petition is without any merit and it must fail. There is no illegality or perversity in the order dated 31.07.2012 (Annexure P-7) passed by the learned Sessions Judge, Rohtak. No case has been made out for interference by this Court.

Resultantly, the instant petition stands dismissed.




09.08.2012                                 (RAMESHWAR SINGH MALIK)
neenu                                             JUDGE

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