IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

BAIL APPLICATION NO.214 OF 2021

Arif Raheman Khatik,

Age 27 years, Occupation Labour,

R/o Dahiwad Tq. Amalner

District Jalgaon.

...Applicant

(Orig.Accused No.5)

VERSUS

The State of Maharashtra

Through Police Station, Amalner

Taluka Amalner District Jalgaon.

...Respondent

…..

Advocate for Applicant : Mr. H. F. Pawar

APP for Respondent-State : Mr. A. M. Phule.

…..

CORAM : SMT.VIBHA KANKANWADI, J.

DATE :

15-03-2021.

ORDER :

1.

Present applicant has been arrested in connection with Crime

No.505 of 2020, registered with Amalner Police Station, Amalner

District Jalgaon, for the offences punishable under Section 9, 10 and

11 of Prohibition of Child Marriage Act and under Section 5 (j) (ii), 5

(l), 6 of The Protection of Children from Sexual Offences (POCSO) Act.

He has filed present application under Section 439 of Code of Criminal

Procedure.

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2.

Before considering the application, a hard reality is required to

be placed. Though there is prohibition of child marriages, yet in the

rural areas we still experience such child marriages. The girl child is

still in this century also seen as a responsibility by the parents and

they would be interested in giving the daughter in marriage as early

as possible. This is one of such case.

3.

The First Information Report has been lodged by Rahul Ajinath

Labde who is serving as Police Sub-Inspector with Amalner Police

Station. He was investigating Crime No.476 of 2020, registered with

his police station for the offences punishable under Section 376(h),

354-A, 452, 506 of Indian Penal Code and Section 4, 8, 12 of The

Protection of Children from Sexual Offences (POCSO) Act. That First

Information Report came to be lodged on the basis of information

lodged by the victim / prosecutrix on 20-07-2020. In fact, Police

Inspector Ambadas More is investigating that matter and the present

informant is assisting him. When at the time of collecting evidence

in that matter, they came across the birth certificate of the victim

which was taken from Surat Municipal Corporation, at that time it

was revealed that her birth date is 04-12-2003. That means, at the

time when offence was committed, in that case she was 16 years 07

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months old. However in her First Information Report itself she had

stated that she got married with present applicant in December

2019 and she was pregnant of five to six months from the present

applicant. It has been then contended in the First Information

Report that in spite of having knowledge about the fact that the

victim is minor, yet the marriage has been performed and then she

is pregnant from the present applicant. The offence has been

registered on behalf of State.

4.

Heard learned Advocate Mr. H. F. Pawar for applicant and

learned Additional Public Prosecutor Mr. A. M. Phule for respondent-

State.

5.

It has been submitted on behalf of the applicant that the

applicant is a labour and a illiterate man. In fact, as per the Indian

Majority (Amendment) Act 1999 is read in correct perspective then

the marriage of the present applicant which is as per the Muslim

Law, cannot be considered as marriage with a child. In fact, as per

the Muslim Personal Law, after the girl attains puberty she is ready

for contracting a marriage. The victim who has married to the

present applicant has not made any kind of complaint. She had

made complaint against a third person about ravishing her and,

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therefore, the present applicant deserves to be released on bail.

6.

Per contra, the learned Additional Public Prosecutor strongly

opposed the applicant and submitted that a person cannot disobey

the provisions of law under ignorance. All the citizens of the country

should know the law as ignorance of law is no excuse. When

specifically the legislature has passed the Act of The Child Marriage

Restrains Act,