Allowed

Sumit Kumar Bharti and Another v. State of U.P. and 4 Others

Allahabad HC15 Nov 2018CRLP/16869/2018

Case brief

AI extract

What is this about?

This High Court bench allowed a Criminal Writ Petition to quash an FIR under Section 366 IPC. The court held that since thePetitioner-Girl and her spouse were majors who married voluntarily, the FIR was unsustainable, dismissed the FIR, and issued protection after relying on Supreme Court precedents regarding major daughters' marriage choices.

What did the court decide?

Quashing of FIR No. 162 of 2018 under Section 366 IPC and protection against arrest for petitioners.

Sumit Kumar Bharti and Another Vs State of U.P… — Matrimonial and Divorce | Allahabad HC (2018)

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Court No. - 4

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Case :- CRIMINAL MISC. WRIT PETITION No. - 16869 of 2018

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Petitioner :- Sumit Kumar Bharti And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shashi Kumar Dwivedi Counsel for Respondent :- G.A.

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Joshi,J.

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Heard learned counsel for the petitioners, learned AGA for the State and perused the Office Reports dated 31.10.2018, 26.09.2018 and 14.11.2018. Service of notice upon respondent no. 5 is deemed to be sufficient in view of the provisions of Chapter VIII Rule 12 of the Allahabad High Court Rules.

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Following order was passed in this case by another coordinate Bench of this Court on 28.06.2018:-

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" This writ petition has been filed challenging the First Information Report dated 7.5.2018 registered as F.I.R. No. 162 of 2018, under section 366 IPC, Police Station Kakadev, district Kanpur Nagar.

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Petitioner no. 1- Sumit Kumar Bharti and petitioner no. 2- Karishma Giri, identified by their counsel, are present in Court.

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During course of the arguments, learned counsel for the petitioner has produced a xerox copy of the statement of marks of High School Examination -2007 in respect of petitioner no. 2- Karishma Giri, wherein her date of birth is recorded as 31.3.1993. The said copy of statement of marks, is taken on record.

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Relying upon a number of decisions of the Supreme Court and this Court, contention of the learned counsel for the petitioners is that both the petitioners are major and after marriage they are living as husband and wife but the respondent no. 5, who is the father of petitioner no. 2-girl, has lodged the impugned F.I.R.. It is further contended family members of the petitioner no. 2 are threatening the petitioners of dire consequences and police is also harassing them on the basis of the impugned F.I.R. Copy of the marriage certificate and marriage registration certificate, have also been appended as annexure 4 and 5 to the writ petition.

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We have heard learned counsel for the petitioners and learned A.G.A.

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The Supreme Court in the long line of decisions has held that if a girl is a major, she can live with a person of her choice and wishes and even her relatives cannot put any obstruction. Reference in this regard may be

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made to the judgment of Supreme Court in the case of Gian Devi v. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234; Lata Singh v. State of U.P. and another, (2006) 5 SCC 475; and, Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396.

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This Court also in the case of Deepika and another v. State of U.P. and others, 2013 (9) ADJ 534 has considered this issue elaborately in detail. Recently, the Supreme Court in the case of Suhani & Anr. v. State of U.P. & Ors (Civil Appeal No. 4532 of 2018) has taken the same view and set aside the order of the High Court sending the girl to Nari Niketan.

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Issue notice to respondent no. 5 returnable on 20.8.2018, indicating that he may file counter affidavit by the next date fixed.

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Learned A.G.A. appearing for respondent no. 1 to 4, may also file counter affidavit within the same period.

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List this case on 28.8.2018 before the appropriate Bench.

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Having regard to the fact that both the petitioners appear to be major and they claim to be residing as husband and wife after marriage as well as the settled legal position, in our considered view, the petitioners are entitled for interim protection.

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Accordingly, until further orders, the petitioners shall not be arrested pursuant to the impugned F.I.R. dated 7.5.2018 registered as F.I.R. No. 162 of 2018, under section 366 IPC, Police Station Kakadev, district Kanpur Nagar. "

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In paragraph eight of the writ petition, it is categorically stated that both the petitioners are major and they have performed their marriage at Arya Samaj Mandir Shastri Nagar, Ghaziabad on 06.05.2018. True copy of the marriage certificate has been appended as Annexure No. 4 to the writ petition.

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In paragraph nine of the writ petition, it has further been averred that the marriage between the petitioners has been registered before the Marriage Registration Officer, Ghaziabad on 07.05.2018 and true copy of their Marriage Registration Certificate has been placed on record as Annexure No. 5 to the writ petition.

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In paragraph ten, it has further been stated that both the petitioners got married as per Hindu Rites and Rituals also on 06.05.2018.

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No counter affidavit has been filed by any of the respondent in this case and hence, we are left with no option but to accept the averments made in the writ petition.

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Since, both the petitioners are major and petitioner no. 2

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has solemnized marriage with petitioner no. 1 voluntarily after leaving her parental home on her own accord therefore, it cannot be said that the petitioner no. 1 has committed any cognizable offence.

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Writ petition succeeds and is, accordingly, allowed .

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The impugned FIR as well as all subsequent proceedings pursuant to the impugned FIR, are hereby quashed.

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There shall be no order as to costs.

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Order Date :- 15.11.2018 Arun/-

Sumit Kumar Bharti and Another v. State of U.P. and 4 Others

Case brief

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Sumit Kumar Bharti and Another v. State of U.P. and 4 Others

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