The judgment emphasized the need for a meaningful reading of Exception 2 of Section 375 IPC to protect the rights of married girl children.

Dharam Chand Chaudhary, J.

In this writ petition following relief’s has been sought to be granted:-

“a. That respondents No.1 to 5 be directed to produce Pariksha Thakur, daughter of the petitioner, in this Hon’ble Court.

b. That the custody of the minor daughter of the petitioner be restored to the petitioner and his wife."

2. The order passed in this writ petition on the previous date, i.e. 27.03.2018, reads as follows:-

“Consequent upon the orders passed on the previous date, learned Additional Advocate General has placed on record the status report. As per this report, the investigation is still in progress. Respondent No. 6 (accused in FIR No. 4 of 2018), though was neither traceable nor available to the police, however, he is present in person along with the daughter of the petitioner. Mr. H.S. Rakhra, Advocate learned counsel representing respondent No. 6 submits that they both have solemnized marriage in a temple at Panchkula. Also that a petition, registered as CRM-M-11896-2018 has also been filed by both of them in Punjab and Haryana High Court for seeking police protection. Certified copy of the order passed in this petition has also been placed on record. Pariksha, the daughter of the petitioner has disclosed her age as 18 years in the petition, she filed along with respondent No.6 in the Punjab and Haryana High Court. They seem to have solemnized the marriage and residing in the company of each other as husband and wife. Since they are present in person, therefore, the petition, so far as the relief for production of Pariksha in this Court is concerned, has turned infructuous. In case she has solemnized marriage with respondent No.6, whether the petitioner is entitled to her custody, has to be seen in the light of the legal provisions and also the judgment of this Court in Cr. MMO NO. 338 of 2016 titled Shishu Pal vs. State of H.P. decided on 10.8.2017 and its connected petition Cr.MMO No.110 of 2017 titled Inder Singh versus State of H.P.

2. Learned counsel representing the petitioner seeks time to have instructions in the matter and also to make further submissions. Allowed. List on 3rd April, 2018. Respondent No.6 is directed to attend this Court in person on the next date along with Pariksha. The police of Police Station, Dehra, however, shall not arrest respondent No. 6, who is an accused in FIR No. 4 of 2018, registered in the said Police Station. The custody of Pariksha shall also remain with respondent No.6 in the meanwhile.”

3. Mr. N.S. Chandel, Advocate, representing the petitioner, while citing the judgment of the Apex Court, in Independent Thought versus Union of India and Another, (2017) 10 SCC 800, has made an effort to persuade us that even if Pariksha has solemnized marriage with respondent No.6, being minor below 18 years of age, she cannot live in the company of the said respondent. The ratio of the judgement cited by Mr. Chandel is that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. Exception 2 of Section 375 IPC as per this judgment creates an unnecessary and artificial distinction between a married girl child and unmarried girl child having no rational nexus nor any object sought to be achieved. Exception 2 of Section 375 IPC needs meaningful reading, i.e. “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape”. Also that it is reading of Exception 2 in this manner that social justice to a married girl child and the constitutional vision of the framers of our Constitution, can be preserved and protected. Such, however, is not the situation before us in the present case.

4. On the other hand, Smt. Suman Rani, the mother of Pariksha and complainant in FIR No. 4 of 2018, dated 04.01.2018, registered under Sections 363 & 366-A IPC, in Police Station, Dehra, District Kangra, H.P., against respondent No. 6 and her father Shri Rajender Singh, are present in person and seem to be