The Allahabad High Court while allowing the petition said that once the age of the victim girl is not in dispute, then the petitioners cannot be accused of committing offence under Sections 363, 366 IPC as the victim had left her home in order to live with her husband.
The Division Bench of Justice Mahesh Chandra Tripathi and Justice Prakash Padia passed this order while hearing a petition filed by Smt Rekha and 4 Others.
The petition has been filed for quashing the F.I.R dated 24.5.2023 arising out of Case under Section 363, 366 IPC at P.S Madnapur, District Shahjahanpur. Further prayer has been made not to arrest the petitioners in the aforesaid case.
The Court noted that it is reported in the ossification test that the petitioner is about 19-year-old. In her statement under Section 161 and 164 CrPC, she has contested the prosecution version and submitted that she has married with petitioner no 1 on her own free will and is also residing with him. She has also stated that she studied up to Class VIII.
Counsel for the petitioners submitted that no offence under the aforesaid Sections is made out against the petitioners as both the petitioner nos 1 and 2 are major. The entire criminal case lodged by the respondent no 3 is nothing but an abuse of the process of the law.
Counsel for the petitioners has further contended that in view of the aforesaid facts and circumstances, the impugned FIR is liable to be quashed in view of the Supreme Court’s judgment in Kavita Chandrakant Lakhani vs State of Maharashtra & Anr reported in AIR 2018 SC 2099, wherein it was held that to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction.
Mere abduction does not bring an accused under the ambit of this penal section.
So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC. As regards the age of the victim girl, as indicated in the report of ossification test, the petitioner no 1 is aged about 19 years. No dispute has been raised by the AGA.
The Court further noted that It is, thus, clear that both the petitioners are major. The fact that the petition has been filed with the declaration by the victim girl that she is living voluntarily in the company of the petitioner no 2, is supported with the signature of the victim girl on the Vakalatnama.
A joint affidavit has also been filed by petitioner nos 1 and 2 in support of the writ petition. Once the age of the victim girl is not in dispute, then the petitioners cannot be accused of committing offence under Sections 363, 366 IPC as the victim had left her home in order to live with the petitioner no 2.
The Court made it clear that the question in the petition is not about the validity of marriage of two individuals i.e petitioners no 1 & 2. Rather, the issue is about the life and liberty of two individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live.
“In view of the above discussion, we are of the considered view that from the first information report no offence under Section 363, 366 IPC is made out, inasmuch as, both the petitioners are major and the petitioner no 1 has come up with the categorical stand that she had left her home with the petitioner no 2 willingly and is living with him as a married woman”, the Court observed while allowing the petition.
“The F.I.R dated 24.5.2023 arising out of case under Section 363, 366 IPC at PS Madnapur, District Shahjahanpur as well as all consequential proceedings are hereby quashed”, the Court ordered.