Allowed

Smt. Richa and Another v. State of U.P. and 2 Others

Allahabad HC18 Feb 2021CRLP/17138/2020

Case brief

AI extract

What is this about?

A division bench quashed an FIR under Section 366 I.P.C. challenging a marriage between two adults. Relying on Supreme Court precedents regarding marital privacy, the court held that consensual marriages of adults cannot be subject to criminal prosecution as it infringes upon individual dignity and choice.

What did the court decide?

The impugned First Information Report No.0252/2020 dating 22.11.2020 under Section 366 I.P.C. is quashed. The writ petition is allowed.

Smt. Richa and Another Vs State of U.P. and 2 Others — Matrimonial and Divorce | Allahabad HC (2021)

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Court No. - 48

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Case :- CRIMINAL MISC. WRIT PETITION No. - 17138 of 2020

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Petitioner :- Smt. Richa And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vijay Singh Sengar Counsel for Respondent :- G.A.,Yadavendra Dwivedi

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Shamim Ahmed,J.

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Heard Sri Ajay Singh Senger, holding brief of Sri Vijay Singh Senger, learned counsel for the petitioners, Smt. Manju Thakhur, learned A.G.A. for the Staterespondent nos.1 and 2 and Sri Yadavendra Dwivedi, learned counsel for the respondent no.3.

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On 28.1.2021 this Court passed the following order:

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“Heard learned counsel for the petitioners and learned A.G.A. for the State respondents.

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This writ petition has been filed praying for the following reliefs:-

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a) to issue a writ, order or direction in the nature of mandamus directing the respondent no.2 not to arrest the petitioners in pursuance of F.I.R. dated 22.1certiorari quashing the impugned F.I.R. dated 22.11.2020, in case crime No.252/2020, under Section 366 I.P.C. , Police Station Bah, District Agra (Annexure No.1 to this writ petition).

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b) to issue a writ, order or direction in the nature of mandamus directing the respondent No.2 not to arrest the petitioners in pursuance of F.I.R. dated 22.11.2020 in case crime No.252/2020, Under Section 366 I.P.C., Police Station Bah, District Agra (Annexure No.1 to this writ petition).

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As per copy of High School certificates of the petitioners filed with writ petition, the date of birth of petitioner No.1 is 28.10.2002 and date of birth of the petitioner No.2 is 10.9.1999. Thus, both the petitioners are major. In paragraphs 6, 7 and 10 of the writ petition, it has been statd that the petitioners are major and have married with each other out of their own free will on 18.11.2020.

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Considering the facts and circumstances of the case, as briefly noted above, we direct the petitioner no.1 to appear before the Chief Judicial Magistrate, Agra on 8.2.2021 at 11-

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00 A.M. who shall record statement of petitioner No.1 under Section 164 Cr.P.C. and shall send a copy of thereof on or before the next date fixed in a sealed cover.

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Put up in the additional cause list on 18.2.2021.

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Till the next date of fixed, no coercive action shall be taken against the petitioners.”

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Pursuant to the aforesaid order, it appears that the petitioner no.1 has appeared before the Judicial Magistrate Ist, Agra on 8.2.2021 and her statement under Section 164 Cr.P.C. was recorded. A copy of the statement of the petitioner no.1 dated 8.2.2021 under Section 164 Cr.P.C. has been sent to this Court by the Chief Judicial Magistrate, Agra vide letter No.765/V dated 15.2.2021, which is taken on record.

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As per High School certificate, the date of birth of the petitioner no.1 is 28.10.2002, the date of birth of the petitioner no.2 is 10.9.1995. Both the petitioners are major.

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Learned counsel for the petitioners and the learned counsel for the informant-respondent no.3 jointly state that both the petitioners have married with each other out of their own free will. The statement of the petitioner no.1 recorded by the Judicial Magistrate Ist, Agra, as aforementioned, also reflects that the petitioner no.1 has married with the petitioner no.2 out of her own free will and she wants to live with him.

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In the case of Laxmibai Chandaragi B and another vs. State of Karnataka and others, 2021 Law Suit (SC) 84 (Criminal Misc. Writ Petition No.359/2020 dated 8.2.2021), the Hon’ble Supreme Court has observed in paragraph 10, 11 and 14 as under:

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“10. We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy. (Shakti Vahini v. Union of India (2018) 7 SCC 192) It is in that context it was further observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”(Asha Ranjan v. State of Bihar, 2017 4 SCC 397).

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In Shafin Jahan v. Asokan K M & Ors. 2018 16 SCC 408, this Court noticed that the society was emerging through a crucial transformational period. (Lata Singh v. State of U.P. 2006 5 SCC 475) Intimacies of marriage lie within a core zone of privacy, which is inviolable and even matters of faith would have the least effect on them. The right to marry a person of choice was held to be integral Article 21 of the Constitution of India. In this behalf, the judgment of the nine Judges Bench in Justice K.S. Puttaswamy v. Union of India 2017 10 SCC 1 may also be referred to where the autonomy of an individual inter alia in relation to family and marriage were held to be integral to the dignity of the individual.

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Insofar as the present case is concerned, the petitioners having filed the present petition, no further statement is really required to be recorded and thus, the proceedings in pursuance to the FIR No.226/2020 dated 15.10.2020 registered at Murgod Police Station, Belagavi District, Karnataka are quashed with the hope that the parents of petitioner No.1 will have a better sense to accept the marriage and re-establish social interaction not only with petitioner No.1 but even with petitioner No.2. That, in our view, is the only way forward. Under the garb of caste and community to alienate the child and the son-in-law will hardly be a desirable social exercise. In the words of Dr. B.R. Ambedkar “Annihilation of Caste:

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“I am convinced that the real remedy is intermarriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling—the feeling of being aliens—created by Caste will not vanish. Where society is already well-knit by other ties, marriage is an ordinary incident of life. But where society is cut asunder, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking caste is inter-marriage. Nothing else will serve as the solvent of caste.”

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Considering the facts and circumstances of the case, as afore-mentioned and the law laid down by the Hon’ble Supreme Court in Laxmibai Chandaragi B and another (supra), Shakti Vahini vs. Union of India, (2018) 7 SCC 192, Shafian Jahan vs. Ashokan K.M. And others, (2018) 16 SCC 408, Lata Singh vs. State of U.P. and another, (2006) 5 SCC 475 and Justice K.S.Puttaswamy vs. Union of India, (2017) 10 SCC 1, we are of the view that the impugned First Information Report No.0252/2020 dated 22.11.2020 under Section 366 I.P.C., Police Station Bah, District Agra, deserves to be quashed and is hereby quashed.

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The writ petition is allowed.

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Order Date :- 18.2.2021 SP

Smt. Richa and Another v. State of U.P. and 2 Others

Case brief

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Smt. Richa and Another v. State of U.P. and 2 Others

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