The legal point established is that the marriage of a girl below 18 years of age is prohibited under the Hindu Marriage Act, 1955, and the Prohibition of Child Marriage Act, 2006, but such a marriage is not declared void and can be made voidable at the instance of the person below the marriageable age.

G.P. MITTAL, J.

1. This is a Petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr. P.C.) preferred by the Petitioner for quashing of FIR No.90/2012, under Sections 363/376 IPC, registered at Police Station Uttam Nagar and consequential proceedings arising out of the same.

2. FIR No.90/2012 was registered on the complaint of Smt. Shanta Rani Bhatia (mother of Sanchi Rani Bhatia, Respondent No.2). Smt. Shanta Rani Bhatia informed the police that her daughter (Sanchi Rani Bhatia) had left the house on 20.02.2012 at 12:30 noon and had not returned. She suspected Petitioner Rahul Verma to be behind luring the Respondent No.2 away and kidnapping her from her lawful guardians. Thus, the FIR No.90/2012 under Section 363 IPC was registered. During the course of investigation, an offence under Section 376 IPC was also added.

3. By virtue of this Petition, the Petitioner prays for quashing of the FIR and the proceedings emanating from the same on the ground that the Petitioner and the Respondent No.2 were friends and were having an affair. Their family members were against the marriage. On 20.02.2012, the Petitioner and the Respondent No.2 left their respective houses, resulting in registration of the FIR in question. It is stated that on 13.03.2013, marriage between the Petitioner and the Respondent No.2 was solemnized at Arya Samaj Mandir, Jamuna Bazar, Delhi. The parties have also been blessed with a female child.

4. Section 5(iii) of Hindu Marriage Act, 1955 and Section 2(a) of Prohibition of Child Marriage Act, 2006 (PCM Act) prohibits marriage of a girl less than 18 years of age. At the same time, Section 3 of Prohibition of Child Marriage Act, 2006 states such a marriage is not declared to be void and has been made only voidable at the instance of the person who was below the marriageable age at the time of marriage. In S. Varadarajan v. State of Madras, AIR 1965 SC 942, a girl below 18 years had asked her boyfriend (the accused) to come to a particular place and the accused had agreed to accompany the girl. The Supreme Court held that where a minor leaves her father’s protection knowing and having capacity to know the full import of what she is doing voluntarily joins the accused, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Para 9 of the report is extracted hereunder:

“9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.”

5. In Bholu Khan v. State of NCT of Delhi & Ors., (W.P. (Crl)1442/2012) decided on 01.02.2013, a Division Bench of this Court held that if the girl is more than 16 years and voluntarily and of her own will accompanies a person the proceedings under Section 363 or 376 IPC can be quashed. Para 51 of the report is extracted hereunder:

“51. 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 Court will be within its power to quash the proceedings under Section 363 or 37