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GUJARAT HIGH COURT
J.B.Pardiwala, J.
Yunusbhai Usmanbhai Shaikh—Applicant
versus
State of Gujarat & Anr.—Respondents
Criminal Misc.Application (For Quashing & Set Aside FIR/Order) No.8290 of 2015
Decided on 23.9.2015
Held: Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following three questions fall for my consideration:
(1)Whether the decision of this Court in the case of Mujamil (supra) lays down the correct proposition of law so far as the right of a Muslim girl to get married at the age of 15 or having attained puberty is concerned visàvis the provisions of the P.C.M. Act, 2006.
(2)Whether the Muslim Personal Law (Shariat) Application Act, 1937 would prevail over the P.C.M. Act, 2006.
(3)Even if the Muslim girl is a consenting party whether the offence could be said to have been committed under the P.C.M. Act, 2006, if she gets married being a minor in terms of the P.C.M. Act, 2006.
The argument before me and accepted in the case of Mujamil (supra) is that the prescription of the marriageable age has no application for the girls belonging to the Mohammedan community, as they are governed by the Muslim Personal Law (Shariat) Application Act, 1937, the provisions of which, are extracted herein above.
I find a lot of merit and substance in the arguments of Mr. Pandya, the learned Additional Public Prosecutor that a statute can always extinguish the customary law and the customary rights.
Thus, having given my thoughtful consideration to the issue in hand, I have no doubt in my mind that the proposition of law explained in the case of Mujamil (supra) to the extent it takes the view that a Muslim girl having attained the age of 15 or having attained the puberty has a right to marry even without the consent of her parents is not a correct statement of law or legal proposition.
Thus, in my view, the arguments of the learned counsel appearing for the applicant accused that the Personal Law would prevail over the P.C.M. Act, 2006 cannot be countenanced and is rejected. To that extent, the dictum of law laid down in Mujamil (supra) is not a good law.
The last question that falls for my consideration is whether the applicant could be said to have been committed any offence of kidnapping punishable under Sections 363 and 366 of the IPC including Section 18 of the POCSO Act.
At the cost of repetition, I may state that the marriage of the applicant with Namira is not in dispute. The first informant as father of Namira seems to have resigned to the fact that he has lost his daughter. This is the reason perhaps why he has not thought fit to appear before the Court and say something as regards this application filed by the applicant for quashing of the F.I.R. The father would definitely be feeling very bad as his feelings are hurt. The father must have toiled day and night to take care of his family, more particularly, his two minor daughters. One day, the father finds that the daughter has left the parental home and has got married with a man who is 12 years elder to her. This, in my view, is nothing, but the lack of maturity, understanding and education on the part of the girl. Sixteen years is not an age for a girl to get married. At this age, probably, a girl would not even clear her S.S.C. Exam. At times, I fail to understand that how she would be able to go ahead in life. Most of the time, unfortunately, this type of marriages fail, and one day, the girl would come back to her parents. By that time, it is too late in her life to realize her mistake as it would be very difficulty for the parents to get her again settled in life.
Keeping the above in mind, it can be said that those who have not allowed to change the Muslim Personal Law have done a great disservice to the community. At the same time, it is also true that as the social condition in the Nation and through out the world continues to change, the reality of life is, that even without a code on personal law of Muslim insofar as the marriage is concerned, the child marriage is going into oblivion. Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years.
As observed by the Full Bench of the Delhi High Court, noted above, that if the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and the Court would be within its power to quash the proceedings of the offence punishable under Sections 363 or 376 of the I.P.C.
Section 363 of the Indian Penal Code contemplates two kinds of kidnapping(a) kidnapping from India and (b) kidnapping from lawful guardianship. I am 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.
The position in the instant case is not materially different. In the instant case, Namira 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.
In my view no case is made out to even prima facie show that Namira 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 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 view of the above, no case is made out so far as the offence under Sections 363 and 376 of the I.P.C., including Section 18 of the POCSO Act, 2012 is concerned. To that extent, the F.I.R. could be quashed and is hereby ordered to be quashed. However, the police shall look into the matter from the point of view of the provisions of the Prohibition of Child Marriage Act, 2006 and file an appropriate report before the trial Court to add the provisions of the P.C.M. Act, 2006 in the F.I.R. After filing such report, the police shall proceed further in accordance with law and complete the investigation. The police, while investigating the F.I.R. shall keep in mind Sections 10 and 11 of the P.C.M. Act, 2006. In the course of the investigation, if it is found out that a particular person had performed, conducted, directed or abetted the marriage (Nikah) of Namira, then according to Section 10, such person would be an accused.(Paras 12, 20, 21, 29, 35, 38 to 41, 43 & 44 to 46)
Result: Petition disposed of.
JUDGMENT
J.B.Pardiwala, J.—Rule. Mr. K.L. Pandya, the learned Additional Public Prosecutor waived the service of notice of rule for and on behalf of the respondent No.1. The respondent No.2 the original first informant although served with the notice issued by this Court dated 23.06.2015 yet has chosen not to appear before this Court and oppose this application either in person or through an advocate.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant the original accused seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report bearing C.R. No.138 of 2014 registered with the Gayakwad Haveli Police Station, District: Ahmedabad for the offence punishable under Sections 363 and 366 of the Indian Penal Code (for short, ‘the I.P.C.’) and also for the offence punishable under Section 18 of the Prevention of Children from Sexual Offences Act (for short, ‘the POCSO Act’).
3. The facts giving rise to this petition may be summarized as under:
3.1 The respondent No.2 is a resident of Ahmedabad. He has two daughters, namely, Namira aged 16 years and 4 months, and Tahejib aged 10 years. At the time when the First Information Report was lodged, the elder daughter of the first informant, namely, Namira was studying in standard 11th. In the First Information Report, it has been stated that his daughter Namira was in love with the applicant herein. It is further stated that the family members used to persuade Namira to discontinue the relations with the applicant accused. It is further stated that friends and relatives had also tried to persuade Namira not to keep any relations with the applicant accused. It has been alleged in the F.I.R. that on 17.04.2015 in the night hours, the applicant accused enticed the daughter of the first informant, namely, Namira and kidnapped her from the lawful guardianship of the first informant. It is alleged that on the date of the lodging of the F.I.R., Namira was a minor.
4. The applicant accused has come up with this application, praying for quashing of the F.I.R., mainly on the following grounds:
(1)The first informant, as father of Namira, has admitted in so many words in the First Information Report that his daughter was in love with the applicant accused.
(2)The first informant has also declared the age of his daughter as 16 years and 4 months on the date when the offence is alleged to have been committed.
(3)According to the applicant accused, Namira had left her parental home on her own free will and volition and decided to get married with the applicant accused. Accordingly, the Nikah was performed, and as on today, the applicant accused and Namira are residing together as lawful wedded husband and wife.
(4)The applicant accused and Namira are governed by their Personal Law i.e. the Mohammedan Law. 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.
(5)Article 251 of the Mohammedan Law deals with the capacity for marriage.
(6)Article 348 deals with the age of majority.
(7)According to the applicant accused, no offence could be said to have been committed in view of the decision of this Court in the case of Mujamil Abdulsattar Mansuri vs. State of Gujarat (Criminal Miscellaneous Application No.19811 of 2013 decided on 01.12.2014).
(8)Mr. Soeb R. Bhoharia, the learned counsel appearing for the applicant accused 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.
(9)He submitted relying on the decision of this Court in the case of Mujamil (supra) that the continuation of the investigation by the police would be nothing, but an abuse of the process of law.
5. On the other hand, this application has been vehemently opposed by Mr. Pandya, the learned Additional Public Prosecutor appearing for the respondent – State of Gujara
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