Madras High Court
Sivachidambaram vs The Inspector Of Police on 2 December, 2022
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.O.P.(MD) No.15999 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.10.2022
PRONOUNCED ON : 02.12.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P (MD) No.15999 of 2022
and
Crl.M.P.(MD) Nos.10573 and 10575 of 2022
Sivachidambaram ...Petitioner
-vs-
1.The Inspector of Police,
Keeranur All Women Police Station,
Pudukkottai District.
Crime No.19 of 2021
2.Durga Devi ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to quash the Charge Sheet in Spl.S.C.No.16 of 2022 on the file of
the learned Sessions Judge, Mahila Court, Pudukkottai District.
For Petitioner : Mr.M.Sivachidambaram
Party-in-person
For R1 : Mr.B.Nambi Selvan
Additional Public Prosecutor
For R2 : Mr.Lenin Kumar
ORDER
1/31
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 This Criminal Original Petition has been filed to quash the Charge Sheet in Spl.S.C.No.16 of 2022 on the file of the learned Sessions Judge, Mahila Court, Pudukkottai District.
2.The Petitioner is appearing as Party-in-person. He submits that he is an M.Tech Graduate in Civil Engineering. He was employed in Dubai. His parents had been seeking alliance for him. When they were seeking alliance for the Petitioner, the maternal uncles of the Petitioner prevented the mother of the Petitioner from seeking a bride outside the family. They insisted the mother of the Petitioner to get the Petitioner herein married to the second Respondent. On such forceful marriage, the Petitioner was married to his maternal uncle's daughter, the second Respondent herein. He was not aware of the age of the second Respondent. She was in love affair with another person.
3.After marriage, the second Respondent disclosed the love affair to the Petitioner. Subsequently, they were living as husband and wife. Subsequent to that, the dispute arose between the mother of the Petitioner and her brothers. The brothers had created trouble for the mother and the 2/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 son, the Petitioner herein, based on which the FIR was registered, as though the Petitioner had committed offence attracting the provisions of the POCSO Act and the mother of the Petitioner had committed the offences under Sections 9 and 11 of the Prohibition of Child Marriage Act, 2006.
4.It is the contention of the Petitioner/Party-in-person that one of the maternal uncles of the Petitioner is serving as Police Constable at Illupur Police Station as Station Writer. Only at his instigation, this case was registered. He is the younger brother of the Petitioner's mother and the paternal uncle of the De-facto Complainant/the second Respondent. When there were dispute between the Petitioner's mother and her brothers, the police man, one of the maternal uncles of the Petitioner, attempted to attack the Petitioner's mother. Therefore, the Petitioner intervened and slapped his maternal uncle, the De-facto Complainant's paternal uncle, who is serving as Police Constable at Illupur Police Station. At that stage, he challenged the mother and son that both will face the criminal cases and never ever will see the light of the day. At his instigation, the De-facto Complainant married the Petitioner with the consent of her parents and on matrimonial talks held by the Petitioner's mother and father.
3/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022
5.It is the further submission of the Petitioner/Party-in-person that whenever he came on leave from Dubai, his mother used to go for seeking matrimonial alliances outside the family. At those times, the second Respondent's father and uncle, the so called Police Constable intervened and prevented the mother of the Petitioner for the marriage of the Petitioner to outside the matrimonial relatives. The Petitioner was not aware that the second Respondent had not attained the age of majority. The relatives prevailed upon the Petitioner and his mother that she is studying 2nd year degree course. In fact, the parents of the Petitioner had arranged for a marriage with the bride outside the relatives. When the betrothal was about to be fixed, due to the intervention of the mother of the Petitioner brothers', that is the Petitioner's maternal uncles, that marriage talks were stopped. Then the maternal uncles of the Petitioner fixed the marriage with the second Respondent, who is none other than one of the maternal uncles' daughter.
6.After the marriage, there had been misunderstanding between the Petitioner's mother and her brothers, in which there were wordy exchanges. 4/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 At one point of time, the younger brother of the Petitioner's mother came rushing towards the Petitioner's mother attempting to attack her. Therefore, seeing that his mother is likely to be attacked, the Petitioner out of love and affection for the mother, to save her from being attacked by her younger brother, the Petitioner's youngest maternal uncle, the second Respondent's paternal uncle, who is serving as Police Constable at Illupur Police Station, Pudukottai District, the Petitioner slapped his uncle's face. He felt annoyed and ashamed by the attack at the hands of the Petitioner. At that point of time, he challenged the mother and the son that they will not breath fresh air and see the light of the day and he instigated a false complaint with the help of the second Respondent, as though the mother and the son had committed the offence under POCSO Act and Prohibition of Child Marriage Act, 2006. At his instance only, the marriage was performed and at his instance only, the present family dispute arose.
7.Due to the actions of the Police Constable, the Petitioner lost his job in Dubai. He was unable to go back to Dubai after the marriage. After the case was registered, the Petitioner came to know that the second Respondent had not at all completed her +2 and her parents and one of the paternal uncles of the second Respondent, who is serving as Police 5/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 Constable, had misrepresented to the Petitioner that she had completed +2 and had studied college II year. Under the belief that she had completed 18 years, the Petitioner had married her. But only after registration of the case, he came to know that they had misrepresented falsely and implicated the Petitioner and his mother in a criminal case misusing the provisions of POCSO Act and Prohibition of Child Marriage Act, 2006.
8.By the conduct of the second Respondent's father and uncles, that is the Petitioner's maternal uncles, the Petitioner and his mother had suffered miserably. The Petitioner is an M.Tech Graduate in Civil Engineering and he was working in Dubai as an Engineer in a construction Company. Only considering his economic status and educational status, the maternal uncles wanted the Petitioner to marry the second Respondent and forced the marriage. Subsequently, there had been misunderstanding between the sister and brothers, the mother of the Petitioner, father of the second Respondent and uncles of the second Respondent, in which there were wordy exchanges, which resulted in the Police Constable attempted to attack the Petitioner's mother. No son will remain silent at that circumstances. Therefore, he attacked the Police Constable, who is none other than his 6/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 maternal uncle and the second Respondent's paternal uncle.
9.The Petitioner/Party-in-person would further submit that he felt sorry for the same, but he is helpless, when he saw that his mother was attempted to be attacked by the younger brother of the mother and that is the motive. The same person, who had arranged for the marriage, prevailed upon the mother of the Petitioner that she should not seek a bride outside the relationship and after the marriage, due to misunderstanding by the very same person, who had instigated the case, the Petitioner suffered loss of employment.
10.Also, he would submit that he was made to believe that she had studied plus two and she is likely to complete her degree course. Believing his own uncles, he had married the second Respondent on the request of the second Respondent’s father as well as her uncles. The Petitioner invited the attention of this Court to the 161 statement of the defacto complainant, which reads as under:-
“......khkh kw;Wk; vd; neUq;fpa cwtpdh;fs; Kd;dpiyapy;7/31
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 rptrpjk;guk; vd; fOj;jpy; jhyp fl;bdhh;. vd; cwtpdh;fSf;F vd; taJ gw;wpa tpguk; njhpahJ. vd; mj;ijAk; khkhTk; mioj;jJk; vq;f fy;ahzj;jpw;F te;jhh;fs; vd; mj;ijAk; khkhTk; kpul;bajhy;jhd; vd; ngw;Nwhh;fNs jpUkzj;jpw;F rk;kjpj;jhh;fs; vd; rpj;jg;gh uhkre;jpuDf;F vd; mj;ijapd; %j;j kfs; kfhny\;kpia jpUkzk; nra;J nfhz;ljhy;> vd;id rptrpjk;guj;jpw;F jpUkzk; nra;J nfhLf;ftpy;iy vd;why; mth;fs; tho;f;if ghohfptpLNkh vd;W gae;J tpl;lhh;fs;. mjd;gpwF md;Nw vd;id tpuhypkiyapy; cs;s mth;fs; tPl;bw;F mioj;Jr; nrd;Wtpl;lhh;fs;. ehd; gbf;f Ntz;Lk; vd;W nrhd;djw;Fk; vd; fzth; rptrpjk;guk; eP gbj;jJ vy;yhk; NghJk; vd;W $wptpl;lhh;. gpd;G md;W ,uNt vd; fzthpd; tPl;by; vq;fSf;F KjypuT Vw;ghL nra;jhh;fs;. vdf;F tpUg;gkpy;iy vd;W $wpAk; vd;id fl;lhag;gLj;jp tYf;fl;lhakhf vd; fzth; vd;Dld; clYwT nfhz;lhh;. gpd;G vd; jha; jfg;gid mioj;J jpUkzj;jpw;F xU rPh;thpirAk; nra;atpy;iy rPht ; hpir nfhLq;f vd;W 30 gTd; eifAk;> fl;by;> nkj;ij> gPNuh kw;Wk; tPl;L cgNahfg; nghUl;fs; thq;fpf; nfhz;lhh;fs;. vd; ngw;Nwhh;fs; f\;lg;gl;L vdf;F Nghl;l Muk; 5 gTd; nef;y];> 2 gTd; nrapd; xd;W> 10 gTd; fy;Yitj;j nrapd; 7> gTd; rhjhnrapd; 1 gTd; nkhj;jk; 27 ½ gTidAk;
vd; mj;ij re;jpuh ehd; gj;jpukh itj;jpUf;fpNwd; vd;W nrhy;yp midj;J eiffisAk; thq;fp itj;Jf; nfhz;lhh;. vd;Dila xU N[hb nfhYirAk; thq;fp itj;Jf;nfhz;lhh; vd;id Rkhh; 20 ehl;fshf ahUlDk; Ngr tplhkYk; ntspNa nry;y tplhkYk; tPlb ; NyNa milj;J itj;J vd; tpUg;gj;jpw;F kPwp rptrpjk;guk; vd;Dld; clYwT nfhz;lhh;. mjd; gpd;G ehd; khh;r; khjk; Kjy; thuj;jpy; xU ehs; mth;fSf;F njhpahky; 8/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 tPli ; ltpl;L ntspNawp vd; ngw;Nwhh; tPlb ; w;F te;J tpl;Nld;.
gpd;G vd; ngw;Nwhh;fs; tPl;bw;F rptrpjk;guk; khh;r; khjk; 14-k;
Njjp thf;fpy; te;jhh;. vd;id tPlb
; w;F th Nghyhk; vd;W
$g;gpl;lhh;. ehd; tuKbahJ vd;W nrhd;Ndd;. mnjy;yhk;
KbahJ vd;Ndhl eP FLk;gk; elj;jDk; th vd;W tw;GWj;jpdhh;.
vd; ngw;Nwhh;fs; ,g;Ngh eP Ngh gh gpd;dhb ehq;f
rkhjhdg;gLj;jp mDg;GNwhk; vd;W nrhd;djw;F> mnjy;yhk;
KbahJ vd;W nrhy;yp rptrpjk;guk; vd; fOj;jpy; ,Ue;j
jhypia mWj;Jr; nrd;Wtpl;lhh;. kPz;Lk; kPz;Lk; vd;id
fl;lhag;gLj;jp tho th vd;W vd; mj;ijAk; khkhTk;
rptrpjk;guKk; vd;dplKk; vd; ngw;Nwhh;fsplKk; gpur;rid
nra;fpwhh;fs;. vdf;F mth;fSld; nrd;W tho tpUg;gk; ,y;iy. vd; mk;kh mg;ghtplk; ehd; fPuD}h; kfsph; fhty; epiyak; nrd;W vd; mj;ij> khkh< vd; fzth; rptrpjk;guk; Nky Gfhh; nfhLf;fyhk;d;D nrhd;Ndd;. vd; ngw;Nwhh;fs; mnjy;yhk; Ntzh Gfhh; vy;yhk; nfhLf;f Ntz;lhk;d;D nrhy;ypl;lhq;f. MdhYk; rptrpjk;guKk; mTq;f mk;kh mg;ghTk; njhlh;e;J vq;ffpl;l gpur;rid gz;zhq;f. cd;dhy vd;d gz;zKbAk;
cdf;F ahuhtJ cjtp gz;zhq;fd;dh cd;idAk;
mTq;fisAk; Rk;kh tpl khl;Nld; vd;W kpul;bdhh;fs;. mjdhy
ehd; vd; mg;ghap ,sQ;rpak; vd; rpj;jg;gh uhkre;jpud;
MfpNahh;fsplk; vd; taJ MfpNahh;fsplk; vd; taJ tpguk; gw;wp nrhy;ypAk; gpur;ridfis vLj;Jr; nrhy;ypAk; mONjd;. gpwF vdf;F Mwjy; nrhd;dhh;fs;. gpwF 16.11.2021-k; Njjp ehd; fPuD}h; midj;J kfsph; fhty; epiyak; te;J vd; mj;jh> khkh> vd; fzth; rptrpjk;guk; kPJ eltbf;if vLf;FkhW Gfhh; nfhLj;Njd;. ,e;epiyapy; vd; mg;gh rptf;Fkhh; vd; tho;fi ; f ,g;gb Mfptpl;lNj vd;W kdNtjidapy; vypNg];l;
9/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 rhg;gpl;L 14.12.2021-k; Njjp ,we;Jtpl;lhh; ,J rk;ke;jkhf jhq;fs; vd;id kWgbAk; tprhhpf;f elg;ig nrhd;Ndd;.”
11.The Petitioner invited the attention of this Court to the statement of the Doctor, wherein she herself had stated that the second Respondent had sexual intercourse on her consent. Also, the Headmistress of the school had given certificate stating that she had discontinued her studies at the 11th std. The Doctor, Abilasha, who had examined the victim, stated as follows:-
“Patient examined with her consent and bystander. C/O.Nil Cycle:5/30 days, LMP:25/10/21 O/E.Patient afebrile.No.Pallor. No pedal edema BP: 110/80mmhg. PR:90/min SPO2-99% CVS-S1S2(+) RS-NVBS(+) Abd. Soft, not tender. No organomeegaly. Both breasts normally developed.
No external injuries.
External genitalia : No external injuries or evidence of previous injuries seen.
Hymen not intact.
1. No. Hymen not intact (could be torn due to various reasons)
2. No. She is not pregnant. Urine pregnancy test-Negative.
3. No. There is no evidence of internal or external injuries in genitalia.” 10/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022
12.The Headmistress, Vijayalakshmi, of the school, where the second Respondent had studied, had stated as follows:-
Jh;fhNjtp 11k; tFg;G gapd;W gbg;ig njhluhky;
ghjpapy; ,ilepWj;jk; nra;J 05.02.2021 k; Njjp khw;W
rhd;wpjo; ngw;W tpl;lhh; vd;Wk; Jh;fhNjtpapd; gpwe;j Njjp
11.06.2004 vd ,Ue;jJ gw;wpAk; rhd;W toq;fpNdd; jw;NghJ fPuD}h; midj;J kfsph; fhty; Ma;thsh; Mfpa jhq;fs;
vd;id tprhhpf;f elg;ig nrhd;Ndd;.
13.The statement of the Headmistress of the School that the second Respondent obtained 'Transfer Certificate' in February 2021 is found justified that the girl studying at Seva Sangam Girls Higher Secondary School at +1 was given in marriage by the parents of the girl to the Petitioner herein in January, 2021. As per the Headmistress's statement, the student obtained 'Transfer Certificate' at 11th std., in February 2021, that is after the marriage. Therefore, the age of the girl/victim is 16+. The age of the Petitioner on the date of the marriage is 30.
14.The earlier marriage proposal could not proceed at the final stage, as the bride's family demanded the Petitioner that he will not go abroad after 11/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 the marriage, for which the Petitioner refused. Since the Petitioner was also interested in getting the Government job, he had applied for the post of Architectural Assistant/Planning Assistant included in the Tamil Nadu Town and Country Planning Subordinate Service through the Tamil Nadu Public Service Commission, for which he had enclosed a copy of the hall- ticket.
15.It is the further contention of the Petitioner/Party-in-person that due to the conduct of the youngest brother of the mother of the Petitioner, who is serving as Police Constable, he had married the second Respondent and he was instrumental in arranging the marriage. Since he caused trouble to the Petitioner and his mother and attempted to attack the Petitioner's mother, who is also his eldest sister and mother-in-law, as the Petitioner's sister was married to the Police Constable, the son/the Petitioner herein cannot remain mute spectator, when the Police Constable attempted to attack the mother of the Petitioner. Therefore, the Petitioner had assaulted, for which the maternal uncle of the Petitioner, who is also the brother-in- law of the Petitioner could have himself lodged the complaint, as though the Petitioner had assaulted him. Instead, he had misused the second 12/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 Respondent to file a complaint against the Petitioner.
16.As such, there is no matrimonial discord between the Petitioner and the second Respondent. If the second Respondent had really objected to the marriage and had stated the facts as such, the Petitioner would not have gone for the marriage with a minor girl. But the facts were hidden from the Petitioner by the second Respondent’s father and uncle, the Police Constable.
17.Only when the investigation proceeded, the Petitioner came to know that the second Respondent was not at all interested with this relationship and she wanted to get away from the relationship. The Petitioner is willing to consider her request. But the matrimonial dispute had been converted into a criminal case under the provisions of POCSO Act and thereby victimizing the Petitioner, thereby he lost his job in foreign country and he is the victim of the circumstances. When the maternal uncles represented to him that the relationship is more important, he should not get married outside seeking bride from outside. They themselves prevented the arranged marriage with the bride, who was fixed for the marriage by the 13/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 parents of the Petitioner earlier. The Petitioner is unable to disobey the words of the mother’s younger brothers, the maternal uncles. Therefore, he agreed for the marriage. But after the marriage, when there was dispute between the mother of the Petitioner and her younger brothers, there was wordy quarrel, due to which, the Petitioner attacked his brother-in-law, the Petitioner's elder sister's husband, Ramachandran, working as Police Constable, Illupur Police Station, who is the paternal uncle of the defacto complainant.
18.If really the Investigation Officer had conducted the investigation fairly, he should have implicated and arrayed the Police Constable also as an accused and the parents of the girl/second Respondent also as an accused. But only the mother and the son were arrayed as accused and they had created a false story stating that when the marriage with the bride outside the family was arranged and it was stopped for the reasons best known to the mother and son, the mother and son went to the house of the second Respondent and threatened her parents that they will kidnap the girl. There is no such necessity for the Petitioner or his mother for that, because the Petitioner is better qualified as an M.Tech in Civil Engineering and is 14/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 working in Dubai. He will get bride of his choice outside the family. But that was prevented by the maternal uncles of the Petitioner and now, he had lost his job in Dubai because of this criminal case. Therefore, he sought the extraordinary powers of this Court to save him and his mother from the unwanted evil design of a Police Constable.
19.The statement of one Ilanchiyam, who is the Petitioner’s maternal grandfather and the second Respondent’s paternal grandfather, is as follows:-
“......kiyf;fz;zd; mth;fspd; kfdhd rptrpjk;guk;
gbj;J Kbj;J tpl;L Jghapy; Ntiy nra;J tUfpwhd;. rptrpjk;guj;jpd; mf;fhTk; vdJ Ngj;jpAkhd kfhnyl;Rkpia vd; filrp kfd; uhkre;jpuf;F jpUkzk; nra;Js;Nsd;. vd; kfs; re;jpuhtpd; ,uz;lhtJ kfs; Rkpe;jpuhTf;Fk; jpUkzk; Mfp ngq;fShpy; trpj;J tUfpwhh;. ,e;epiyapy; rptrpjk;guj;jpw;F Jghapy; Ntiy nra;j NghNj ngz; ghh;j;J uh[hspg;gl;biar; Nrh;e;j uhN[e;jpud; nrl;bahhpd; kfs; gtpj;uhtpw;F jpUkzk; nra;a 25.01.2021-k; Njjp jpUkzk; nra;a KbT nra;J gj;jphpf;if mbj;J jpUkz Vw;ghL nra;jpUe;jhh;fs;. Mdhy; mth;fSf;Fs; Vw;gl;l fUj;J NtWghL fhuzkhf jpUkzk; epw;Fk; mstpw;F NghdJ. gpd;G ehDk; vq;fs; cwtpdh;fSk; ngz; tPl;lhhplk; Ngrp vd;d gpur;rid vd;W Nfl;Nlhk;. khg;gps;is Jghapw;F Ntiyf;F Nghff;$lhJ Nghdhy; ehq;f jpUkzj;ij epWj;jptpLNthk; vd;W nrhd;dhh;fs;. gpd;G rptrpjk;guj;jplk;15/31
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 Nfl;ljw;F ehd; Jgha;fF ; Ntiyf;F NghNtd; vd;W nrhd;djhy;
jpUkzj;jpw;F 5 ehl;fs; Kd;G ngz; tPl;lhh;fs; jpUkzj;ij epWj;jp tpl;lhh;fs;. jpBnud;W vd; kfs; re;jpuh Nghd; gz;zp jk;gp rptf;Fkhh; kfs; Jh;f;fhNjtpia rptrpjk;guj;jpw;F jpUkzk; nra;a Ngrp Kbr;Rl;Nlhk;. fy;ahzk; 27.01.2021-k; Njjp jpUr;rp gioa rkaGuk; Nfhtpypy; fhiy 09.30 Kjy; 10.30 kzpf;Fs;
elf;FJ eP thk;khD nrhd;dh. ehd; clNd vd; kfd; rptf;Fkhhplk; Nfl;lg;g mtd; rypg;gh Mkhk;kh mf;fhTk; khkhTk; te;J vq;fs;l;l vd; Gs;isNahl fy;ahzk; epd;DNghr;R eP jhd;
cd; nghz;iz vd; Gs;isf;F fl;b Flj;jhfDk;D
fl;lhag;gLj;Jr;R. ehd; KbahJD nrhd;Ndd; Mdh tPl;y xNu
gpur;rid gz;zpl;lhq;f Ntw top ,y;yhk ,e;j fy;ahzj;Jf;F xj;Jf;fpl;Nld;D nrhd;dhd;...........”
20.The Petitioner/Party-in-person had also cited the rulings of this Court in Crl.A.No.490 of 2018 (Sabari @ Sabarinathan @ Sabarivasan Vs. The Inspector of Police, Belukurichi Police Station, Namakkal District and others) dated 26.04.2019 and the case of Crl.O.P.No.21414 of 2019 (N.Chandramohan Vs. The Inspector of Police, W-6, All Women Police Station, Kilpauk, Chennai and other) dated 20.08.2019.
21.The learned Additional Public Prosecutor for the first Respondent would submit that this is the clear case of POCSO and invited the attention 16/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 of this Court to the certificate issued by the Headmistress to the Investigation Officer that the date of birth of the second Respondent as per the school certificate is 11.06.2004. The date of marriage, as per the complainant's statement, is 27.01.2021.
22.The learned Additional Public Prosecutor also invited the attention of this Court to the said 161 statement, which is also reflected by the defacto complainant in her 164 statement. He would also invited the attention of this Court to the potency test by the Investigation Officer through the Doctor, S.Valliappan, Department of Forensic Medicine and Toxicology, GMCH, Pudukkottai, regarding the Petitioner herein and the medical test report on the victim by the woman Doctor, wherein the age of the victim is given as 17 years on 17.11.2021. The Doctor has clearly stated as follows:-
“Nfs;tp 1: ghjpf;fg;gl;l rpWkp fd;dp jd;ik cilatuh? gjp;y; 1 : No Nfs;tp 2: ghjpf;fg;gl;l rpWkp fh;g;gkhf cs;suh? ,y;iyah? fh;gg ; khf ,Ue;jhy; vdpy; vj;jid khjk;> gjpy; 2: No vd gjpy; mspj;J rhd;W toq;fpNdd;.
jw;NghJ fPuD}h; midj;J kfsp; fhty; Ma;thsuhfpa jhq;fs; vd;id tprhhpf;f elg;ig nrhd;Ndd;.” 17/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022
23.The learned Additional Public Prosecutor for the first Respondent relied on the ruling of the Hon'ble Supreme Court in Crl.A.No.680 of 2020 (Ganesan Vs. the Inspector of Police) dated 14.10.2020, which was filed against the judgment of this Court dated 29.04.2018 passed in Crl.A.No.844 of 2018. The appeal by the original accused against the judgment of the Fast Track Mahila Court, Dharmapuri for the offence under Sections 7 and 8 of POCSO Act. In the said judgment, the Hon'ble Supreme Court had held as follows:-
“On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. ”
24.The learned Counsel for the second Respondent vehemently objected to the same stating that the Petitioner is the paternal aunt's son of the second Respondent/defacto complainant. The defacto complainant was undergoing her studies as a Higher Secondary School student, +1. When the marriage with the Petitioner was arranged with another bride, due to the demand of dowry and other related talks, the marriage was stopped. In a 18/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 hurry, the parents of the Petitioner and the Petitioner forced the maternal uncles to get their daughter, the second Respondent herein married to the Petitioner. It was all arranged in a short notice only at the force and threat of the Petitioner and his parents. The arguments of the Petitioner/Party-in-
person cannot at all be accepted by this Court exercising the extraordinary powers under Section 482 Cr.P.C.
25.The learned Counsel for the second Respondent also invited the attention of this Court to the statements of the Headmistress as well as the Doctor and submitted that it is a fit case for proceeding under POCSO Act. What are all submitted by the Petitioner/Party-in-person can be considered only during trial.
26.From the facts and circumstances of the case, it is found that the Petitioner is an M.Tech Graduate working in Dubai. When he came to India on holidays and when his parents made arrangement for marriage, the marriage talks could not proceed as the bride's family wanted the Petitioner to remain in India and get a job in India, for which the Petitioner was not amenable. The FIR was registered on 16.11.2021, almost 1 year after the 19/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 date of the marriage.
27.Therefore, as stated by the Party-in-person, he is an educated person having studied M.Tech and is working as Civil Engineer in Dubai. It is found that if the parents of the second Respondent were not willing, they should have avoided giving their daughter in marriage. For an arranged marriage, the Petitioner and his mother alone are made accused. With criminal intent, the complaint had been given. Considering the fact that the Petitioner and the second Respondent are relatives and the status of the Petitioner as an Engineer working abroad, the attempt of the mother of the Petitioner seeking matrimonial alliances outside the relationship, is also found justified. Considering the fact that the Petitioner is aged 30, whereas the uncle's daughter is aged 16, the maternal uncles wanted the Petitioner to marry the second Respondent without waiting for her to complete her education and Interested Persons (instigators) were none other than the parents of the second Respondent. As per 161 statement also, the second Respondent states that her relatives do not know her actual age.
28.While so, the submission of the Party-in-person/the Petitioner that 20/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 if he had known that the second Respondent was undergoing +2 education, he would not have consented for the marriage is found justified considering his age and the age of the second Respondent. The person, who arranged the marriage is also the brother-in-law of the Petitioner and the youngest brother of the mother of the Petitioner and the youngest brother of the father of the second Respondent.
29.In the course of the argument, the learned Counsel for the second Respondent would submit that because of this dispute, the father of the second Respondent committed suicide (the same had not been stated anywhere in the statement of the witnesses). It was submitted only in the course of argument that his daughter’s life was spoiled. It is presumed that the mother and son were interested in getting marriage outside the relatives, because the educated foreign employed bridegrooms get more dowry, may be the reason, but that is not stated anywhere in the complaint.
30.In similar circumstances, it is found that in Tamil Nadu, the system of getting married to close relatives, like sister’s daughter, like maternal uncle's son, maternal uncle’s daughter is prevalent as a custom among 21/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 Hindus, which is accepted in Hindu Law. Therefore, instead of allowing the Petitioner to get married outside the relationship, the Petitioner's maternal uncles had prevented the Petitioner from proceeding with the marriage that was almost settled by the parents of the Petitioner with the bride of his choice. Further, the Petitioner herein having lost his matrimonial relationship, also had lost his job in foreign country because of the elders in the family. This is a case in exemption to the general perception of POCSO and Child Marriage Act. The educated youth full of dreams, who had gone abroad to earn his livelihood in a decent manner, had been spoiled by the relatives. As per the statement of Ilanchiyam, the grandfather of both the second Respondent and the Petitioner, there was dispute regarding misunderstanding between the elder sister and brothers.
31.The statement recorded under Section 161 Cr.P.C of the second Respondent also states that the marriage of the Petitioner with another bride was fixed, but for the reasons not known, it was stopped. The reasons mentioned by the Petitioner is found justified as his own maternal’s grandfather had clearly stated that the bride's family did not want him to go abroad for his livelihood. The same is found acceptable in the fact that the 22/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 hall-ticket for writing the exam by the Petitioner had been filed along with the typed set of papers for the post of Architectural Assistant/Planning Assistant included in the Tamil Nadu Town and Country Planning Subordinate Service through the Tamil Nadu Public Service Commission.
32.If what had been mentioned in the 164 statement is to be taken for granted, the parents of the second Respondent should have instituted the complaint against the Petitioner and his parents instead of marrying the daughter to the Petitioner. The Petitioner had furnished the marriage invitation, wherein it had been mentioned that the second Respondent had studied B.B.A.
33.On consideration of the rival submissions and on perusal of the rulings cited by both the parties, the rulings relied on by the learned Additional Public Prosecutor are facts relating to POCSO offences. In Nawabuddin Vs. State of Uttarakhand reported in 2022 LiveLaw (SC) 142, the victims are minors, where the appellant before the Hon'ble Supreme Court was sentenced to undergo life imprisonment. By that time, he approached the Hon’ble Supreme Court that he is suffering from 23/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 tuberculosis. Therefore, he sought reduction of his sentence, which was considered by the Hon'ble Supreme Court allowing the appeal partly.
34.In Crl.A.No.680 of 2020 (Ganesan Vs. the Inspector of Police) dated 14.10.2020, the Hon'ble Supreme Court had upheld the conviction. The appellant having agitated his right of appeal stating that the conviction based on the sole testimony of the victim, P.W3 cannot be sustained was rejected by the Hon'ble Supreme Court.
35.Here, as per the 164 statement of the second Respondent, it is an arranged marriage. As per the 161 statement recorded from the grandfather of both the Petitioner and the second Respondent, it is an arranged marriage. The grandfather fairly concedes that the grandson, the Petitioner herein fixed the marriage with the bride outside the family, which was stopped at the last stage due to the condition imposed by the bride's family that the Petitioner shall not go abroad, after the marriage, which was not amenable to the Petitioner herein.
36.The allegation that the Petitioner and his parents threatened the 24/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 second Respondent's parents cannot at all be accepted, considering the fact that the Petitioner is employed in foreign country as a Civil Engineer. In the invitation card, it is stated that the second Respondent had completed B.B.A, whereas the complainant herself in her 164 statement states that her actual age was not known to her relatives.
37.None of the witnesses were examined by the Investigation Officer claims that they were aware that the Petitioner and his mother kidnapped the minor girl and married her forcibly to the Petitioner. They had stated that there had been dispute after the marriage, based on which criminal case was given. That much only is available.
38.In the light of such developments, it is found that the arguments of the Petitioner/Party-in-person that his life was spoiled because of his own maternal uncles' evil design, who had arranged the marriage of the Petitioner with the second Respondent and who himself was instrumental in registration of POCSO case against the Petitioner misusing the age of the victim girl/second Respondent, is found acceptable. This is the specific case of misusing the provisions of POCSO Act. The age of the victim is 25/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 accepted. If the age of the victim is to be accepted, then the Investigation Officer ought to have arrayed the parents of the victim girl also as co- accused and also the Police Constable (the brother-in-law of the Petitioner) serving at Illupur Police Station. They had not done so. It is not a fair investigation. At best, if the girl was not interested in living with the Petitioner, the second Respondent's family members ought to have filed a suit for declaration that the marriage is null and void on behalf of the victim girl. Thus a civil case had been converted into a criminal case because of the ulterior motive of the relatives. The brothers of the mother of the Petitioner who had become inimical towards her (may be due to the reasons of less dowry) had foisted this case.
39.If the facts as stated by the victim in her 164 statement are to be accepted in its totality, the victim/the second Respondent's parents and uncles ought to have been arrayed as co-accused. Without that, merely proceeding against the Petitioner, his mother and his father amounts to misuse of the provisions of POCSO Act. If the second Respondent's parents and uncle, the Police Constable by name, Ramachandran had been arrayed as accused, he would have lost his job as Police Constable. He is nowhere in 26/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 the picture. He is the brother-in-law of the Petitioner, Party-in-person, maternal uncle of the Petitioner and his sister's husband and paternal uncle of the second Respondent. He is the prime accused in this case. The prime accused had been let off by the Investigation Officer.
40.In the ruling cited by the Petitioner/Party-in-person in Crl.A.No. 490 of 2018 (Sabari @ Sabarinathan @ Sabarivasan Vs. The Inspector of Police, Belukurichi Police Station, Namakkal District and others) dated 26.04.2019, the victim was aged 17 years. As per the evidence of the victim, she had voluntarily gone along with the accused. They were in a relationship. The evidence of the victim did not support to the prosecution case. Still, the POCSO Courts, Trial Courts convicted the accused. Therefore, the accused had preferred an appeal and the same was allowed.
41.Here, the statement recorded under Section 164 Cr.P.C. of the victim herself states that it is an arranged marriage. If that is so, the victim's parents also ought to have been included as an accused. Without including them for the alleged offences, the prosecution against the Petitioner and his parents alone for the design by the family of the second Respondent will not 27/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 hold good.
42.As per the reported ruling of the Hon'ble Supreme Court in MANU/SC/0792/2022 [K.Dhandapani -vs- The State] it is observed as follows:-
“7. In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the Appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court. This Court cannot shut its eyes to the ground reality and disturb the happy family life of the Appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle.
8. For the aforesaid mentioned reasons, the conviction and sentence of the Appellant is set aside in the peculiar facts of the case and shall not be treated as a precedent. The appeal is accordingly, disposed of. Pending application(s), if any, shall stand disposed of.”
43.In the light of the reported judgment of the Hon'ble Supreme Court in K.Dhandapani -vs- The State [MANU/SC/0792/2022] and in the light of the order passed by this Court in Crl.A.No.490 of 2018 (Sabari @ Sabarinathan @ Sabarivasan Vs. The Inspector of Police, Belukurichi Police Station, Namakkal District and others) dated 26.04.2019, which was 28/31 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.15999 of 2022 relied on by the Petitioner/Party-in-person, this Criminal Original Petition is allowed.
In the result, this Criminal Original Petition is allowed. The Charge Sheet in Spl.S.C.No.16 of 2022 on the file of the learned Sessions Judge, Mahila Court, Pudukkottai is quashed. Consequently, connected Miscellaneous Petitions are closed.
Internet :Yes./No 02.12.2022
Index :Yes/No
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Crl.O.P.(MD) No.15999 of 2022
To
1.The Sessions Judge,
Mahila Court,
Pudukkottai.
2.The Inspector of Police,
Keeranur All Women Police Station,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD) No.15999 of 2022
SATHI KUMAR SUKUMARA KURUP, J.
mm
Order made in
CRL.O.P (MD) No.15999 of 2022
02.12.2022
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