Allahabad High Court
Mohd. Sahil And 5 Others vs State Of U.P. And 3 Others on 13 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 456
Bench: Pankaj Naqvi, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 18989 of 2019 Petitioner :- Mohd. Sahil And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Abhishek Ankur Chaurasia,Diwan Saifullah Khan Counsel for Respondent :- G.A. Hon'ble Pankaj Naqvi,J.
Hon'ble Samit Gopal,J.
Counter affidavit filed by learned A.G.A is taken on record.
Heard Shri D.S. Khan, learned counsel for the petitioners, and Dr. S.B. Maurya, the learned A.G.A.
This writ petition has been filed by Mohd. Sahil, Joya @ Madhu Nigam, Islam, Rubi, Seema and Meena to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 12.06.2019, registered as Case Crime No. 0180 of 2019 under Sections 366, 120-B I.P.C and 3(2)(va) the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, P.S. Sasani Kotwali, District Hathras.
2. The arrest of the petitioners was stayed by a co-ordinate Bench of this Court vide order dated 12.07.2019 and notices were issued to the respondent no. 4 to file a counter affidavit. As per the office report dated 08.08.2019 notice was issued to the respondent no. 4 by RPAD fixing 30.08.2019. Further as per the office report dated 18.11.2019 the said notice as issued was neither acknowledged nor undelivered cover has been received back. Even no one appeared on behalf of respondent no. 4 when the matter was taken up for arguments.
Learned A.G.A has filed a counter affidavit in the matter which has been sworn by Sri Ram Shabd, Circle Officer, Hathras City, District Hathras who has stated in paragraph 3 that the notice of the institution of the present writ petition has been duly served on the informant Veerwati on 20.07.2019 as per report of Police Station Sasani, District Hathras, a copy of which has been annexed as Annexure-1 to the said counter affidavit.
3. We thus proceed to hear and decide the matter.
4. Learned counsel for the petitioner submits that as per F.I.R the petitioner no. 2 is aged about 20 years. She is further stated to have left her house on 11.06.2019 and prior to this i.e. on 02.04.2019 she renounced her past religion and faith. It was further submitted that on 02.04.2019 the petitioner no. 2 adopted Islam as her religion and converted to Islam and declared herself to be Muslim and also changed her name as Joya in place of Madhu Nigam, freely and independently without any force, fraud or allurement played by any person. The conversion certificate dated 02.04.2019 is annexed as Annexure-4 to the writ petition. It is further submitted that no offence under said sections are made out and admittedly the petitioner no. 2 is 20 years old and she went with petitioner no. 1 out of her own sweet will and entered into a wedlock by her free will. It is further submitted that petitioner no. 1 is aged about 22 years having his date of birth as 04.04.1997.
5. Learned A.G.A is unable to rebut the submissions but has fairly stated on the strength of paragraph 7 of the counter affidavit that the date of birth of petitioner no. 2 as per High School Certificate is 01.04.1999, i.e. as per the F.I.R about 20 years old and thus she happens to be a major.
6. The essential ingredients of Section 366 IPC are as under:
(i) Kidnapping or abducting any women,
(ii) Such kidnapping or abducting must be,
(a) with intent to compel the women or knowing it to be likely that she will be compelled to marry any person against her will,
(b) or that she may be forced or seduced to illicit intercourse, Second part of the section requires-
(i) Criminal intimidation or abuse of authority or any other method of compulsion,
(a) to induce any women to go from any place,
(b) with intention or knowingly,
(c) to force or to seduce the women to illicit intercourse with another person.
7. The Apex Court while reiterating its earlier settled view in Shafin Jahan v. Asokan K.M reported in (2018) 16 SCC 368, held as under:
"78. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Court. In Gian Devi v Superintendent, Nari Niketan, Delhi31, a three-judge Bench observed that where an individual is over eighteen years of age, no fetters could be placed on her choice on where to reside or about the person with whom she could stay:
"...Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter."
79. The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major, she or he is not under illegal confinement, which the court finds to be a free expression of will, that would conclude the exercise of the jurisdiction. In Girish v Radhamony a two judge Bench of this Court observed thus:
"3...In a habeas corpus petition, all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will, the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution."
80. In Lata Singh v State of U.P, Bench of two judges took judicial notice of the harassment, threat and violence meted out to young women and men who marry outside their caste or faith. The court observed that our society is emerging through a crucial transformational period and the court cannot remain silent upon such matters of grave concern. In the view of the court:
"17...This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law."
81. Reiterating these principles in Bhagwan Dass v State (NCT OF DELHI), this Court adverted to the social evil of honour killings as being but a reflection of a feudal mindset which is a slur on the nation.
82. In a more recent decision of a three judge Bench in Soni Gerry v Gerry Douglas, this Court dealt with a case where the daughter of the appellant and respondent, who was a major had expressed a desire to reside in Kuwait, where she was pursuing her education, with her father. This Court observed thus:
"9...She has, without any hesitation, clearly stated that she intends to go back to Kuwait to pursue her career. In such a situation, we are of the considered opinion that as a major ,she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not. There may be ample reasons on her behalf to go back to her father in Kuwait, but we are not concerned with her reasons. What she has stated before the Court, that alone matters and that is the heart of the reasoning for this Court, which keeps all controversies at bay.
10. It needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation."
83. These principles emerge from a succession of judicial decisions. Fundamental to them is the judgment of a Constitution bench of this Court in Kanu Sanyal v District Magistrate, Darjeeling.
8. A perusal of the aforesaid judgment of the Apex Court manifests that the Apex Court has consistently respected the liberty of an individual who has attained the age of majority.
9. So far as, the fact regarding Section 3(2) (va) of the (Scheduled Castes and the Scheduled Tribes) Act, 1989 is concerned we find the impugned F.I.R also to be lodged with other Sections of I.P.C. Since no offence under Section 366 & 120-B I.P.C. is made out, as such no ingredients of offence under Section 3(2)(va) of the (Scheduled Castes and the Scheduled Tribes) Act, 1989 is also made out. Further there is no allegation that the offences as complained off was committed with the knowledge that petitioner no. 2 is a member of a Scheduled Caste or a Scheduled Tribe. We are of the view that since petitioner no. 2 was a major on the date of occurrence, i.e., 11.06.2019, she had solemnized a marriage with petitioner no. 1 voluntarily on 01.09.2019, no offence under Section 366 I.P.C is made out.
10. After hearing the counsel for the parties and perusing the record we are of the opinion that it is a marriage between two persons belonging to two different religions out of their own sweet will and agreement. They are adults. The F.I.R has been lodged by the mother of petitioner no. 2 who alleges that the latter was about 20 years old. The affidavit in the present petition has been sworn by petitioner no. 2 / Joya @ Madhu Nigam. The present F.I.R is for kidnapping of the petitioner no. 2 by petitioner no. 1 with the help of the other petitioners. The petitioner no. 2 had gone with petitioner no. 1 on her own, having married each other and are now living together happily.
11. The writ petition succeeds and is allowed. The impugned F.I.R dated 12.06.2019, registered as Case Crime 0180 of 2019 under Sections 366, 120-B I.P.C and 3(2)(va) the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989, P.S. Sasani Kotwali, District Hathras as well as all consequential proceedings are hereby quashed.
12. No order as to cost.
Order Date :- 13.1.2020 AS Rathor (Samit Gopal,J.) (Pankaj Naqvi,J.)