In a criminal revision challenging custody separation, the High Court allowed the appeal, holding the victim was major and adamant to reunite with her husband, rendering trial on abduction charges futile.
The present revision stands allowed based on the victim's major age and willingness to live with the husband.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 67
Case :- CRIMINAL REVISION No. - 372 of 2019
Revisionist :- Vishesh Joshi Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Amit Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Vakalatnama as well as Counter affidavit filed by Sri Mithilesh Kumar Ojha, Advocate on behalf of opposite party no. 2 today in the Court is taken on record.
Pursuant to the earlier order of this Court dated 29.01.2019, Ms. Meena Gangwar is present in the Court.
I have perused her statement recorded under Section 161 Cr.P.C. in which she, in no uncertain terms, has submitted that she is acquainted with the revisionist-Vishesh Joshi for 4-5 years and on her own volition, she has joined the company of revisionist and no one has enticed her away. It is further contended that both of them have got married in Arya Samaj, Bareilly on 15.02.2017 and prior to the passing of the impugned order dated 12.11.2018, she was peacefully residing with her husband-Vishesh Joshi.
The revisionist is challenging the order dated 12.11.2018 by which the custody of the girl was illegally given in favour of her parent. The next contention is that as per medical report, the girl is major and in her statement recorded under Section 164 Cr.P.C., she has given a vivid picture of her willingness. As per the medical report, her age comes around 19+ years.
Today, the girl is present before the Court and this Court has got an opportunity to have conversation with the girl pursuant to the earlier order of this Court dated 29.01.2019.
A questionnaire was given to corpus-Ms. Meena Gangwar and after questioning the context of the questionnaire, she on her own will, filled up the whole questionnaire.
It also transpires that prior to this, the couple has come before this Court and co-ordinate Bench of this Court by means of Civil Misc. Writ Petition No.22781 of 2017 has protected the interest of the revisionist vide order dated 23.05.2017(Annexure-2) and thereafter, after lodging of the FIR again by means of Criminal Misc. Writ Petition No.10331 of
2017, coordinate Bench of this Court vide order dated 06.06.2017 has protected the interest of the couple till submission of the report under Section 173(2) Cr.P.C.
Learned counsel for the revisionist has relied upon the judgment of Hon'ble the Apex Court in the case of Suhani and another v. State of U.P. and others decided on 26th April, 2018 passed in Civil Appeal No. 4532 of 2018 (arising out of SLP (C) No. 8001 of 2018 and Sachin Powar and another Vs. State of U.P. and others in Criminal Appeal No.1142 of 2013 decided on 02.08.2013 to buttress his contention.
Keeping in view the above factors and the case law in support of the contention advanced by learned counsel for the revisionist, it would be futile exercise to carry out the trial, where the victim herself who is major and adamant to join the company of her husband, the revisionist. She understands the gravity of the situation and far reaching repercussion of her stand taken by her. Moreover, her statement and conduct shows that the essential ingredients of Sections 363, 366 IPC and Section 3/4 POCSO Act is completely vanished.
With the aforesaid observations, the present revision stands allowed.
Order Date :- 6.3.2019 Sumit S
2 issues framed by the court
Whether the revision allowing separation from the spouse despite custody order stands allowed given the victim is major and willing.
Whether the essential ingredients of Sections 363, 366 IPC and Section 3/4 POCSO Act are present given the victim's age and willingness.
Colour shows how this judgement treated each authority
Suhani and another v. State of U.P. and othersRelied on¶13
Suhani and another v. State of U.P. and others decided on 26th April, 2018 passed in Civil Appeal No. 4532 of 2018 (arising out of SLP (C) No. 8001 of 2018
Sachin Powar and another Vs. State of U.P. and othersRelied on¶13
Sachin Powar and another Vs. State of U.P. and others in Criminal Appeal No.1142 of 2013 decided on 02.08.2013
3 provisions across 2 enactments
Vishesh Joshi
State Of U.P.
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
