The central legal point established in the judgment is that the marriage of a minor under the Prohibition of Child Marriage Act, 2006, is voidable at the option of the contracting party who was a child at the time of the marriage, and the minor cannot be permitted to stay in a matrimonial relationship where the marriage would be void under the Act.

JUDGMENT :

1. This petition under Article 227 of the Constitution has been filed seeking to set aside an order of the learned Judicial Magistrate-I, Hapur, dated 24.11.2020, passed in Case Crime No. 516 of 2020, under Section 363 IPC, P.S. Pilakhuwa, District Hapur, directing that the prosecutrix Km. Shivani be permitted to go along with her husband, the accused Pintoo son of Omvir.

2. A counter affidavit has been filed on behalf of the second opposite party by Mr. Rama Shankar Mishra, Advocate, which is taken on record. The petitioner has filed a rejoinder.

3. Admit.

4. Heard forthwith.

5. Heard Mr. Sudhir Mehrotra, learned counsel for the petitioners, Mr. Rama Shankar Mishra, learned counsel for opposite party no.2 and Mr. S.S. Tiwari, learned AGA appearing on behalf of the State.

6. The submission of Mr. Sudhir Mehrotra, learned counsel for the petitioners, briefly said, is to the effect that the date of birth of the prosecutrix, according to her High School Examination Certificate issued by the U.P. Board of High School and Intermediate Education, is 04.11.2004. She is, thus, a minor, aged 16 years and 2 months approximately. She would attain majority on 05.11.2022. Mr. Mehrotra submits that the Magistrate has erred in permitting the prosecutrix to accompany her husband, an accused in the crime, going by the marriage acknowledged by the parties to be solemnized on 21.09.2020 at the Pandav Kalin Neeli Chhatri Mandir Sanatan Dharam Vivah Padti Trust, Yamuna Bazar, Delhi. Mr. Mehrotra submits that the prosecutrix, being a minor, cannot be permitted to stay in a matrimonial relationship, where the marriage would be void under Section 12 of the Prohibition of Child Marriage Act, 2006 (for short, ''the Act of 2006'). He submits that in any case the prosecutrix, who is not a major, cannot be permitted to stay with her husband and ought not to be allowed to accompany him. Doing so, would be permitting statutory rape and also an offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.

7. Mr. Rama Shankar Mishra, on the other hand, submits that the prosecutrix in her stand before the Magistrate has made it clear that she has married the accused Pintoo of her free will and wishes to stay with him. He emphasizes that the parties' marriage has been registered under the U.P. Marriage Registration Rules, 2017 by the Marriage Registration Officer, Ghaziabad on 21.09.2020. He has drawn the attention of this Court towards a certificate of the registration of marriage, dated 21.09.2020.

8. This Court has perused the impugned order and considered the entire facts and circumstances. The prosecutrix is a little over 16 years of age. The Magistrate has been swayed to permit the prosecutrix to go along with the accused, her husband on ground that the father of the prosecutrix made an application that he would not take her back home and that he had lodged an FIR, out of social embarrassment. The Magistrate has relied upon the decisions of this Court in Smt. Rajkumari vs. Superintendent, Nari Niketan, 1998 Cr.L.J 654 (All) and Smt. Ramsati @ Syamsati vs. State of U.P., Habeas Corpus Writ Petition No. 245 of 2015, decided on 07.09.2005 to hold that upon marriage of a minor according to her wishes, she could be left free to live her life.

9. The law has changed much course since the decisions above referred were rendered. In Independent Thought vs. Union of India and another, (2017) 10 SCC 800, it has been held:

"Rape or penetrative sexual assault

67. Whether sexual intercourse that a husband has with his wife who is between 15 and 18 years of age is described as rape (not an offence under Exception 2 to Section 375 IPC) or aggravated penetrative sexual assault [an offence under Section 5(n) of the Pocso Act and punishable under Section 6 of the Pocso Act] the fact is that it is rape as conventionally understood, though Parliament in its wisdom has chosen to not recognise it as rape for the purposes of IPC. That it is a heinous cr