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GUJARAT HIGH COURT
J.B. Pardiwala, J.
Mujamil Abdulsattar Mansuri —Applicant
versus
State of Gujarat & Anr. —Respondents
Misc. Criminal Application (For quashing and set aisde F.I.R/Order) No.19811 of 2013
Decided on 1.12.2014
For the Applicant:Vijay Patel, H.L. Patel, Advocates
For the Respondent No.1: Mr A.N. Shah, A.P.P.
For the Respondent No.2:Mr Sanjay Prajapati, Advocate
IMPORTANT POINT:
Under the Mohammedan Law, for the purpose of contracting marriage, a person is considered to be major when he or she attains puberty and such person can contract marriage even without the consent of the guardian.
Headnote:Indian Penal Code, 1860 — Sections 361, 363 and 366 — Mohammedan Law — Articles 251 and 348 — Majority Act, 1875 — Sections 2(a) and 3 — Kidnapping — Muslim girl — Capacity for marriage — Age of majority under the Mohammedan Law — When a person has attained puberty, when he or she has willingly contracted the marriage, it is a valid marriage under the Mohammedan Law — Applicant accused and a muslim girl aged 17 years, residing in the same locality — According to the statement of the girl, she had accompanied with the applicant on her own free will and volition and there was no enticement or promise of any sort given by the applicant — They both decided to get married and went to Ajmer Sharif, where nikah was performed by the Kajisaheb — FIR was registered for offence u/ss 363 and 366 IPC — Applicant filed petition u/s 482 CrPC for quashing the prosecution — Whether offence u/s 363 IPC was constituted in the instant case — No — There was no kidnapping of the victim girl.
Held: I am of the view that so far as the offence under the Indian Penal Code is concerned i.e. of the offence under Section 361, the girl could be termed as a minor, although under the Mohammedan Law she may have a right to contract the marriage on attaining 15 years of age or puberty, as the case may be, without the consent of her parents. To take the view that the parties would be solely governed by the provisions of the personal law ignoring the provisions of the Majority Act would be extremely dangerous. In a given case, a muslim girl might attain puberty even at the age of 12 or 13, in such circumstances, it cannot be said that she is a major and, therefore, no offence of kidnapping as defined under Section 361 of the Indian Penal Code is committed.
Section 363 of the Indian Penal Code contemplates two kinds of kidnapping–(a) kidnapping from India and
(b) kidnapping from lawful guardianship. We are not concerned with the offence of kidnapping from India. Section 361 defines kidnapping from the lawful guardianship. It provides as follows: “Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. “some observations would not be out of place. In order to come within the mischief of that section the accused must have either taken away the minor girl or must have enticed the minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions “taking” and “enticing” evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful custody of her guardians. Neither of the Sections would have any application if the girl has, of her own accord, come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place. To illustrate, the accused may go to the house of the girl and may lift her from her house. He no doubt commits the act of kidnapping. But if the girl is of the age of understanding and has left her parental home of her own accord and meets some person and requests him to accompany her to some place for her safety, the person accompanying the girl is not guilty of kidnapping her. There may be cases in which the girl might leave the custody of her guardian and might in fact go to a third person and prevail upon him to take her to some distant place. In such cases even if the person knew that the girl is a minor girl and knew the names of her parents, still if he has not initiated the girl’s coming out of the house, mere passive acquiescence on his part evidenced by his accompanying the girl to places would not necessarily spell the offence of kidnapping on his part. It cannot be said in such cases that it is the accused who has “taken” away the girl from out of her parents’ custody. If any authority is necessary for this proposition the same is to be found in the judgment of the Supreme Court in the case of S. Varadarajan v. State of Madras, AIR 1965 SC 942: (1965(2)Cri. LJ 33). In that case the girl who had reached the state of understanding had candidly admitted that on the morning of October 1st she herself telephoned to the accused 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. This is what the Supreme Court held further in that case in this context at page 36 of Cri LJ;”???...
“Further, Savitri has stated that she had decided to 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 side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her put 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 he 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.....”
The position in the instant case is not materially different. In the instant case, Reshambanu is admitting in so many words that she had accompanied the applicant on her own free will and volition and since she was in love with the applicant and the applicant also loved her, they decided to get married and, accordingly, got married at the Ajmer Sharif.
In my view no case is made out to even prima facie show that Reshambanu had received a promise or assurance or any tempting offer from the applicant by virtue of which she was forced to leave her parental home. There is, thus, nothing to even prima facie show to the Court the “taking” of the girl by the accused, the evidence about his “enticing” her away is equally absent. If this is so, there is no kidnapping of the girl and hence the question for application of Section 363 of the Indian Penal Code does not arise.
In my view, when no offence is constituted, the Police should not be allowed to continue with the investigation. As on today, Reshambanu is happily residing at her matrimonial home with her husband i.e. the accused before me. (Paras 26, 28, 29, 30, 31)
Result: Application Allowed.
JUDGMENT
J.B. Pardiwala, J.—By this application under Section 482 of the Code of Criminal Procedure, 1973, the petitioner original accused seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being C.R. No. I20 of 2013 registered with the Dholka Police Station, dated 1st Feburary, 2013, of the offence punishable under Sections 363 and 366 of the Indian Penal Code.
2. The facts giving rise to this application may be summarized as under:
(a) The respondent no.2 is a resident of Dholka, District Ahmedabad. He is earning his livelihood by plying an autorickshaw. He has one son, namely, Sohil, aged 19 years and two daughters, namely, Reshambanu, aged 17 years and Sabnam, aged 10 years respectively.
(b) On 1st February, 2013, the respondent no.2 lodged the First Information Report stating that in the morning he had left his house to ply the rickshaw, and in the afternoon, when he returned home, his wife informed him that Reshambanu had gone away somewhere since 11.00 O’clock in the morning. Thereafter, the first informant started searching for his daughter Reshambanu at the house of his relatives and friends. Despite frantic efforts, Reshambanu could not be traced. In such circumstances, the first informant suspected that the applicant herein probably might have enticed Reshambanu and she might have ran away with the applicant herein. The wife of the first informant, therefore, went at the house of the applicant and inquired with the parents of the applicant and the parents of the applicant, in turn, informed the wife of the first informant that their son i.e. the applicant herein was also not to be seen at the house since morning. The parents of the applicant informed the wife of the first informant that they were trying to contact the applicant on his mobile but the mobile had been switched of. In such circumstances, the first informant and his wife reached to a conclusion that their daughter Reshambanu had been perhaps kidnapped by the applicant herein. The first informant, as the father of Reshambanu, thereafter thought fit to inform the Police about the same and the Police recorded the First Information Report.
3. It appears from the materials on record that the first informant herein i.e. the father of Reshambanu also thought fit to file a habeas corpus petition being Special Criminal Application No. 910 of 2013.
4. The habeas corpus petition was not entertained by a Division Bench of this Court since the petitioner, as the father of the girl, had already lodged a report before the Dholka Police Station. The Division Bench observed that the Police would take appropriate action in the matter in accordance with law.
5. The picture that emerges from the materials on record is that the applicant herein and Reshambanu both fell in love with each other as both were residing in the same locality. They both decided to get married and, accordingly, went to Ajmer Sharif, where Nikah was performed by the Kajisaheb of the Ajmer Sharif on 2nd February, 2013. A certificate to that effect has been produced at Annexure ‘A’. At the time when Nikah was performed, the age of Reshambanu was 17 years and odd.
6. Mr. Vijay Patel, the learned advocate appearing on behalf of the applicant vehemently submitted that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute the offence of kidnapping are spelt out. Mr. Patel submits that it is not in dispute that when Reshambanu left her parental home along with applicant she was aged around 17 years and few months. Mr. Patel submits that the parties belong to the Muslim community. They are governed by their personal law i.e. the Mohammedan Law. He submits that a muslim girl, who is above 15 years of age or has attained puberty, is at liberty to marry even if there is no consent from the parents. Mr. Patel has placed reliance on some of the provisions of the Mohammedan Law. Mr. Patel further submits that ev
