The Allahabad High Court while rejecting the bail application said that if responsible members do not take cognizance of this menace, a day will come soon that Arya Samaj Mandir will become a place for solemnizing illegal marriage and their prestige will be in doom.
A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc bail Application filed by Pappu.
The Applicant has approached the Court by way of filing th Criminal Misc Bail Application under Section 439 Cr.P.C in Case under Sections 363, 366, 376(3) I.P.C and 3/4 of POCSO Act, Police Station- Kokhraj, District – Kaushambi after rejection of his Bail Application vide order dated 05.12.2022 passed by Special Judge (POCSO Act), Kaushambi.
Informant (Mother of victim) has lodged an F.I.R that her daughter (D.O.B. 01.01.2009) went to attend nature’s call on 21.08.2022, however, when she did not return, a rigorous search was undertaken but she could not be found and, therefore, on 24.08.2022, she lodged the F.I.R against unknown person under Section 363 I.P.C.
Counsel for the applicant submitted that delay of three days in lodging F.I.R remained unexplained. It appears that the victim was recovered alone on 15.11.2022, thereafter, she gave her statement under Sections 161 and 164 Cr.P.C that she along with the applicant ran away and got married, however, later on they were apprehended.
Counsel further submitted that victim has taken contrary stand in her statement before Magistrate that applicant has enticed her and forcefully kidnapped and took her to Prayagraj for marriage. She forcefully remained with the applicant, who made physical relationship against her will.
Counsel also submitted that according to radiological examination, age of victim is opined between 17 to 18 years. It was a case of a consensual relationship and the victim had a love affair with the applicant. They got married and lived together as husband and wife.
The above submissions are opposed by A.G.A-I for State that according to the educational document, age of victim on the date of occurrence was about 15 years and 8 months, therefore, she was a minor girl and as such her consent, if any, was immaterial. She has specifically stated in her statement recorded under Section 164 Cr.P.C that applicant not only enticed her, but forced her to marry and made physical relationship against her will.
A.G.A-I referred to a certificate of marriage issued by Arya Samaj, Krishna Nagar, Prayagraj and has submitted that they have solemnized marriage of a minor girl, which is an illegal act and for that this Court may issue an appropriate direction.
“In the case, according to educational document, age of victim on the date of occurrence was about 15 years and 8 months and according to her medical examination also, age is opined between 17 to 18 years, therefore, victim is a minor girl and accordingly, there is merit in argument of the A.G.A-I that consent of a minor girl is immaterial. Victim has specifically stated in her statement recorded under Section 161 Cr.P.C that she was not only forcefully kidnapped but forcefully married also and applicant has made physical relationship against her will and since the statement of victim has not been recorded till date during trial, therefore, there is a possibility that in case of bail, applicant will try to influence her”, the Court observed.
Accordingly, the Court rejected the bail application, however, the Trial Court is directed to record the statement of victim expeditiously, preferably within a period of three months. Thereafter the applicant will have liberty to file a fresh bail application.
Before parting with judgment, the Court took serious note that Arya Samaj, Krishna Nagar, Prayagraj has issued a marriage certificate of applicant with victim, a copy of same is on record. Marriage certificate does not indicate how the age of the victim is verified i.e above 18 years.
The Court further observed that,
It was the duty of Arya Samaj Krishna Nagar, Prayagraj that before solemnizing marriage, it should be carefully verified whether they are solemnizing a marriage between two adult persons or not. It amounts to a child marriage which was opposed by Swami Dayanand Saraswati Ji.
Vivah Sanskar has always been a sacred and pious process for a bride and groom before they enter into their Grihastha Ashram. According to Arya Samaj’s ritual, it includes Varmala & Swagat, Vidhi Madhuparkaa, Yagna & Kanyadaan, Havan & Godan, Pani Grahan Sanskar, Shilarohan, Lajahom, Phere or Parikrama, Kesh Mochan, Saptapadi & Hriday Sparsh Mantra, Sindoor & Mangalsutra and Surya Darshan. They at the time of Vivah Sanskar odour to be Arya Samajist and they devout the rituals with all sincerity and devotion, therefore, it become a duty of responsible office bearers of Arya Samaj to stop their pious efforts to propagate teachings of Swami Dayanand Ji including to curb ‘child marriage’ to be misused by persons, who indulge them in solemnising such marriage which may not be legalised. For example a marriage of minor as the case in hand, which would also in direct conflict of one of the mottos of Swami Dayanand, to stop ‘child marriage’.
Therefore, the Court issued some directions:-
1. A check list of essential documents be prepared and a mechanism be developed to cross check veracity and genuineness of documents to verify age of proposed couple and in case of any doubt, marriage may not be solemnized.
2. A mechanism be developed to ascertain whether any criminal proceedings are initiated against the groom or bride and whether any age of boy or girl is disclosed therein or not.
3. A counselling be proposed to couples so that they may not enter into any criminal act i.e solemnizing a marriage before reaching marriageable age.
4. Format of marriage certificate be modified to include details of parentage, details of proof of age and details of witnesses with their ID proof. They may be required to file an affidavit also.
5. Or any other measure, which would be appropriate to stop child marriage.