Advocates:
['SURFARAJ KHAN', '', 'Deepali Dubey', 'RISHI SAHU', 'A G']

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

M.CR.C. No. 4653 of 2020

Mohd. Rahman Taj, S/o. Samsuddin, aged about 27 years, R/o. Village-

Devnagar, Tehsil- Ramanujnagar, P.S. and District- Surajpur, Chhattisgarh.

---- Applicant

Versus

State of Chhattisgarh, Through - Station House Officer, Surajpur, District-

Surajpur, Chhattisgarh.

---- Respondent

For Applicant

: Mr. Surfaraj Khan, Advocate

For Respondent/State

: Mr. Adil Minhaj, G.A.

Hon'ble Shri Justice

Rajendra Chandra Singh Samant

Order On Board

27/01/2021

1.

This is the first bail application filed under Section 439 of the Code of

Criminal Procedure, 1973 for grant of regular bail to the applicant, who

has been arrested in connection with Crime No.363/2019, registered at

Police Station –Surajpur, District – Surajpur (C.G.) for the offence

punishable under Section 498-A/34, 376 (2) (n), 376 (2) (i), 465, 468 of

the Indian Penal Code and Sections 9 & 11 of the Child Marriage

Restraint Act and Section 6 of the Protection of Children from Sexual

Offences Act, 2012.

2.

It is submitted by the learned counsel for the applicant that the

applicant has been falsely implicated in this case. The allegation of

offence under Section 498-A of I.P.C. is misconceived. As regards the

other allegation about performing marriage with a minor girl of age 13

years, the same is permitted under Shariat law. The applicant and the

prosecutrix both are Mohammadan by religion and according to the

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Shariat law a girl, who attains puberty can be married. The marriage of

the applicant with the prosecutrix had been an arranged marriage with

consent of the parents of the prosecutrix. Subsequently, the

prosecutrix has re-married and is now residing with present husband. It

is submitted that same question has been dealt with in case of Mohd.

Samim Vs. State of Haryana & Ors., in Criminal Writ Petition

No.532 of 2018 on 26 September, 2018, before the Court of Punjab &

Haryana, in which marriage of the minor girl with the petitioner under

Muslim law was held to be lawful. The applicant is in jail since

08.11.2019. Hence, it is prayed that the applicant may be enlarged on

bail.

3.

On the other hand, learned counsel for the State opposes the bail

application and the submissions made in this respect. It is submitted

that the age of the prosecutrix was only about 13 years at the time,

when her marriage was performed with the applicant. The mother of

the prosecutrix has also been made an accused in this case. It is

submitted that provisions of Penal Code and the POCSO Act do not

give any relief in this kind of marriage on the ground of Shariat law, as

these enactments do not speak of any exception. There is clear

statement of the prosecutrix under Section 164 of Cr.P.C. and the diary

statement of the other witnesses, therefore, no case is made out for

grant of bail to the applicant.

4.

Complainant – Manoj Jaiswal, District Child Protection Officer, Surajpur

is present in person before this Court on notice. He has stated that he

has strong objection in grant of bail to the applicant.

5.

I have heard the learned counsel for both the parties and perused the

case diary.

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6.

Case of the prosecution is this that the minor prosecutrix of age 13

years was married by her mother to this applicant according to Muslim

customs. The applicant was already married, his previous wife and the

applicant both harassed and tortured the minor prosecutrix and she

was driven out of her matrimonial home by the applicant after uttering

the word Talak. The prosecutrix was then admitted in Children Home,

Ambikapur. The District Children Protection Officer then made a

complaint to the police on the basis of which, the offences have been

registered against this applicant and other accused persons.

7.

Considered on the submissions. The ground taken by the applicant

regarding application of Shariat law in this particular case will be

considered and answered