Punjab-Haryana High Court
Mohinder Kumar @ Raghbir Singh & Anr vs State Of Haryana & Anr on 23 October, 2008
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.13492-M of 2008 (O&M)
DATE OF DECISION : OCTOBER 23, 2008
MOHINDER KUMAR @ RAGHBIR SINGH & ANR. ... PETITIONER(S)
VERSUS
STATE OF HARYANA & ANR. ... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Naresh Kaushik, Advocate, for the petitioner(s).
Mr. Sidarath Sarup, AAG, Haryana.
Mr. Madan Sandhu, Advocate, for respondent No.2.
AJAI LAMBA, J. (Oral)
This petition under Section 482, Code of Criminal Procedure, seeks quashing of FIR No.3 dated 5.1.2001 under Sections 363/366-A, Indian Penal Code, Police Station, Jhansa, District Kurukshetra (Annexure P-1) and subsequent proceedings.
Learned counsel for the petitioners has pointed out that petitioner No.2-Rani Devi had a liking for petitioner No.1 and they both got married on 14.12.2000, however, without the consent and blessings of complainant-respondent No.2/Bhagat Ram, father of Rani Devi. As at that point in time, Rani Devi was 17-1/2 years of age and also for the reason that the marriage was not accepted by respondent No.2, the FIR came to be lodged.
Criminal Misc.13492-M of 2008 (O&M) 2
Notice of motion was issued.
Reply has been filed on behalf of respondent No.2. It has been clearly stated that the marriage has, now, been accepted and respondent No.2 has no objection to quashing of the FIR and subsequent proceedings.
I have considered the contentions raised on behalf of the parties and have also gone through the available record.
The petitioners, as identified by their counsel Shri Naresh Kaushik, Advocate, are present in court. I find that they have been blessed with two children and are living together in peace and harmony. In such circumstances, continuance of proceedings shall not only disturb their matrimonial life but would also disturb peace and harmony in the respective families of the petitioners. The marriage of the petitioners has been accepted by respondent No.2, who has clearly stated that he would have no objection to the quashing of the FIR.
Learned counsel for the respondent-State has also stated that in view of the development that has taken place that the complainant has not opposed the petition, the State would have no objection to the quashing of the FIR and the proceedings.
Reference in the context of the facts of the present case may be made to para-8 (relevant portion) of a judgment of the Delhi High Court in Bhagwan Singh and others v. State and another, 2007(1) RCR (Criminal) 347. The same reads as under:-
"8. ........ The prosecutrix present in court appears to be a grown up girl and to me she appears to be more than 18 years old. This court cannot ignore the fact that the petitioner is on Criminal Misc.13492-M of 2008 (O&M) 3 her family way and is carrying pregnancy of three months from petitioner No.1 against whom FIR of kidnapping is lodged by the prosecutrix's father. In Ravi Kumar v. State & Anr. Reported as 2006(1) RCR (Crl.) 41 : 2005 (4) RCR (Civil) 831 (Delhi : 2005 VIII AD (Delhi) 1 : 124 (2005) DLT 1, a Division Bench of this court has ruled that the minority of the spouse cannot be a ground to declare their marriage illegal. As per this judgment, the marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but over 15 years of age. I feel myself bound by the Division Bench judgment of this court in Ravi Kumar's case (supra)."
Reference may also be made to paras 13, 19 and 20 of a judgment of the Division Bench of Delhi High Court in Ravi Kumar v. The State and another, 2006(1) RCR (Criminal) 41. The same read as under:-
"13. We, accordingly, hold that the marriage was neither void nor illegal on account of the spouse being less than 18 years of age and being over 15 years of age. The question of contravention under Section 18 is not before us. We further hold that the minor girl cannot, in these circumstances, be directed to be detained in a Remand Home against her wises."
"19. It would be seen that in both the cases notices had been issued to the complainant and they have been heard on the question of continuance of criminal proceedings. Reference may be made to the judgment of the Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 Supreme Court
942. The Court in the cited case held, taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. It was further observed as under:-
""But when the girl (who though a minor had attained Criminal Misc.13492-M of 2008 (O&M) 4 the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
The Court noting the distinction between taking and allowing a minor to accompany a person, held that no case of kidnapping was made out."
"20. Applying the ratio of the aforesaid judgment to the cases in hand, it would be seen that there was no taking or enticing away. The essential ingredients of the offence of kidnapping are missing in these cases. The girls having reached the age of discretion had of their own volition accompanied the men Criminal Misc.13492-M of 2008 (O&M) 5 of their choice. Rather, it has come in evidence that the initiative came from them and they got married of their own according and are desirous of living with their respective husbands."
When the facts of the present case are considered in the context of the law, of which notice has been taken hereinabove, it becomes evident that petitioner No.2 (wife) consciously and willingly got married to petitioner No.1. The marriage alliance continues till date. The petitioners have two issues. In the facts and circumstances of the case, offences under Sections 363/366-A, Indian Penal Code, cannot be said to have been committed. Respondent No.2-complainant i.e. father of the girl, has not only endorsed the marriage but has also supported the prayer for quashing of the FIR and the proceedings.
Accordingly, the petition is allowed. FIR No.3 dated 5.1.2001 under Sections 363/366-A, Indian Penal Code, Police Station, Jhansa, District Kurukshetra (Annexure P-1) and subsequent proceedings are quashed.
October 23, 2008 ( AJAI LAMBA ) Kang JUDGE