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1999 Supreme(All) 1326
HIGH COURT OF ALLAHABAD
Virendra Saran, S.K.Agarwal
MOHD KALLO ALIAS MOHD JUBEEL
Versus
STATE
Decided On : 02 September 1999
Writ Petition No. 979 (M/b) of 1999;
Hari Prasad Gupta, RAJEEV DUBEY,
The main legal point established in this judgment is that the age of consent is a crucial factor in determining the legality of a marriage and the offense of kidnapping a minor. The court emphasizes the need to preserve the marriage and considers the individual's free will and consent in such cases.
Headnote:
Age of Consent - Indian Penal Code, Section 363/366 - The court examines the provisions of Section 363/366 of the Indian Penal Code, which pertain to kidnapping a minor. The court determines that the girl is not a minor and therefore the offense cannot be established.
Fact of the Case:
The petitioner is accused of kidnapping a minor girl who eloped with him and married him after converting to Islam. The petitioner argues that the girl is not a minor and entered into the marriage willingly. The court examines the evidence, including the girl's affidavit and medical report, and concludes that she is above 18 years of age. The court emphasizes the importance of preserving the marriage and decides to quash the proceedings against the petitioner.
Finding of the Court:
The court analyzes the evidence presented, including the girl's affidavit, medical report, and school certificate. The court concludes that the girl is above 18 years of age and that the offense of kidnapping a minor cannot be established. The court emphasizes the need to preserve the marriage and cites a precedent to support this principle. The court also considers the potential complications and harm that could arise if the girl is returned to her parents.
Ratio Decidendi: The court determines that the girl is a major and entered into the marriage willingly. The court quashes the proceedings against the petitioner and emphasizes the importance of preserving the marriage.
Result: The writ petition is allowed, and the proceedings arising from the FIR are quashed.
Petitioner, Mohd. Kallo alias Mohd. Jubeel, is involved in crime No. 124 of 1999 under Section 363/366, I. P. C. of P. S. Kotwali Dis trict Lakhimpur Kheri.
2. A case was registered against the petitioner on the strength of F. I. R. dated 27-2-1999 lodged by Maiku Lal stating therein that on 24-2-1999 his daughter, Km. Renu (minor), was at his house. She eloped with the petitioner on account of some inducement "kisi BAHANEY SE BAHALA PUSHLA KAR MERILADKI Km.
RENU KO LE GAYA". The F. I. R. further mentions that while leaving the house Renu took away her clothes and ornaments.
3. It is alleged in the writ pet i lion lhai Km. Renu and the petitioner loved each other. The writ petition goes on to state that Renu, who was 19 years of age, after embracing Islam married the petitioner on 5- 3-1999. She also changed her name as Reshma. The marriage was performed by a Qazi in Bareilly District. Copy of the Nikahnama has been filed as Annexure-2 to the writ petilion. Annexure-3 is a copy of an affidavit sworn by Renu before Notary (Sri Gyanendra Kumar, Advocate, Bareilly) stating thai she was 19 years of age and thai she has lo her own free-will without any concern changed her religion. On the affidavit, photograph of Renu is to be found and she has described herself as wife of the pelilioner. The wril pciition is founded on the ground lhai Km. Renu, who is a major has voluntarily, of her own free will entered into marriage with the petitioner and in view of this no offence under Seetion 363, I. P. C. or under Seetion 366, I. P. C. is spelled out against the petitioner. On 12-3-1999 this Court directed that Renu should present herself before the Chief Medical Officer, Luck-now, for ascertaining whether she is a major. The report of the Chief Medical Officer, Lucknow dated 18-3-1999 is on the icftd which shows that the age of Rcnu is 18 years. On 12-5-1999, Rcshma (maiden name Renu) appeared before us. Informant Maiku Lal was also personally, present. Maiku Lal was also allowed to have conversation with his daughter. Reshma told us that she has entered into marriage with the petitioner of her own free will and added that her real date of birth is 1st January. 1981. She further stated that even though her father was ready to take her back, but he was not ready to accept petitioner, Mohd. Kallu, as his son-in-law. We directed her to appear before the Chief Judicial Magistrate, Lucknow, for recording her statement under Section 164, Cr. P. C. and her state ment was recorded by the learned Chief Judicial Magistrate, Lucknow. In her statement, she reiterated that her actual date of birth is 1st January, 1981. She stated that she has entered into marriage with the petitioner out of her own free will and was residing with the petitioner as his wife. She also stated that she wanted to reside with her husband. She specifically stated that she was not induced or misled in any manner by any one (MUJHE KISI NE BHI BAHLAYA, PHUSLAYA YA BARGALAYA NAHIN HAI ). She also stated that she does not want to go to her fathers place because his father would commit her and her husbands murder.
4. On behalf of informant, Maiku Lal, a counter affidavit has been filed. In the counter affidavit it is mentioned that Renu is a minor. Annexure CA-1 to the counter-affidavit is photocopy of school certificate of Bhagwandin Arya Kanya Inter College, Lakhimpur-Khcri, in which the date of birth of Renu has been given 1-1-1983. It is neither mentioned in the counter affidavit that Renu had given affidavit before the Notary under some pressure. Rejoinder affidavit of Reshma (Renu) has also been filed. In the rejoinder affidavit she has specifically stated that she is a major. In Para 4 of the rejoinder affidavit it is men tioned that she had started going to school at a later stage of age as she remained ill for about three years when she was a child and thereafter she was going to school, i. e. Mishri Devi Shishu Vidyalaya, where she studied upto Class V.
