Shaheen Parveen left her parents’ home with Mohd. Sarfaraj a few months before turning 18. They got married soon after. Shaheen’s mother initiated a successful criminal proceeding claiming Mohd Sarfaraj had abducted her daughter and forced her into marriage. The couple filed this petition seeking to quash the criminal proceedings, as their marriage was consensual and there was no evidence of coercion. The Court ruled in favor of the couple and quashed the criminal proceedings against Sarfaraj.
1. Shaheen Parveen and Mohd. Sarfaraj have approached this Court to seek a writ … to quash First Information Report bearing Case Crime No.-121 of 2014.
2. Case set up by the petitioners is that the petitioners having attained marriageable age got married. Marriage, however, is not being accepted by … the mother of petitioner No.1. Under the circumstances, aggrieved by the fact that the petitioner No.1 got married of her own accord, impugned criminal proceedings have been initiated.
4. [A]t the point in time when the prosecutrix went in the company of petitioner no.-2, she was less than 18 years of age. … [I]t has been admitted that the prosecutrix/victim did not support the prosecution case in her statement. … The Investigating Agency, however, is concluding that offence has been committed, on the ground that at the point in time when the prosecutrix went in the company of petitioner no.-2, she was less than 18 years of age.
6. Petitioner no.-2 is accused of committing an offence under Sections 363/366 of the Indian Penal Code.
7. Section 363 of the Indian Penal Code inheres that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision.
8. “Kidnapping from lawful guardianship” has been defined under Section 361 of the Indian Penal Code. The provision when extracted reads as under:-
9. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision.
12. Documents placed collectively as Annexure SCA-2 indicate that the victim has been found to be above 18 years of age. The document further makes it evident that the victim is having pregnancy of 31 weeks gestation on 7.5.2015.
13. Annexure SCA-3 is the statement of the victim recorded under Section 164 CrPC on 8.5.2015. When translated, statement reads as under :
14. The Investigating Agency is concluding that at the point in time when the victim left in the company of the accused, she was a few months less than 18 years, which is the relevant age mentioned in Section 361 of the Indian Penal Code, above extracted. Clearly, the Investigating Agency is taking a hypertechnical view of the issue. The other relevant facts and circumstances of the case are being ignored.
16. If the statement of the prosecutrix, above noted, is taken into account, it becomes evident that ingredients of the offence under Sections 363/366 of the Indian Penal Code in regard to coercion, kidnapping or abduction allegedly committed by Sarfaraj, are not satisfied. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code. So as to satisfy the ingredients of Section 361 of the Indian Penal Code, it has to be established by the prosecuting agency that the accused/Sarfaraj took or enticed the prosecutrix out of the keeping of the lawful guardian of the prosecutrix, without the consent of the guardian/respondent no. 4. … Element of coercion and enticement by Sarfaraj is absent, although consent of the guardian had not been taken.
21. We have also taken into account the fact that in case the petitioner No.2 is allowed to be prosecuted, the matrimonial life of petitioner No.1/the alleged victim would be disrupted. Her husband would be incarcerated and there would be no one to take care of her child, who is yet-to-be-born.
22. If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc and without any offer or promise from the accused, no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing. … In case the victim/ prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father’s house or even of telling her not to accompany him.
23. A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement, … In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation.
26. Petitioner No.1, the victim in her statement recorded under Section 164 CrPC has clearly demonstrated that it was she who went of her free will … and got married to [Sarfaraj] willingly. It is a consensual act on the part of petitioner No.1 … Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. … The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj.
28. [T]he Court is convinced that the impugned proceedings have been initiated in abuse of process of the Court and process of the law. A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their discretion.
29. The stand of the Prosecuting Agency that the victim was a few months below age of majority when she joined the company of the accused/petitioner No.2, and therefore offence has been committed, cannot be accepted if ground reality is taken into account. … In the considered opinion of the Court, substantial justice cannot be sacrificed at the altar of technicality, as is being concluded by the Investigating Agency.
32. The writ petition is allowed. Accordingly, First Information Report lodged as Case Crime No.-121 of 2014 under Sections 363/366 of the Indian Penal Code, Police Station Madiyawan, District Lucknow and all consequent proceedings are hereby quashed.”
A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement. … In such circumstances, desire of the girl/victim is required to be seen.
[T]he Court is convinced that the impugned proceedings have been initiated in abuse of process of the Court and process of the law. A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their discretion.