Allowed

Smt.Kamini Yadav and Another v. State of U.P. and 2 Others

Allahabad HC9 Dec 2022CRLP/18984/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an FIR under Section 366 IPC filed against two major individuals who married each other. The court held that no offence was made out as the female petitioner left her home voluntarily and was over the age of majority.

What did the court decide?

The FIR dated 11.8.2022 arising out of Case Crime No.351 of 2022 under Section 366 IPC and all consequential proceedings are quashed.

Smt.Kamini Yadav and Another Vs State of U.P. and… — Matrimonial and Divorce | Allahabad HC (2022)

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Court No. - 47

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Case :- CRIMINAL MISC. WRIT PETITION No. - 18984 of 2022 Petitioner :- Smt.Kamini Yadav and another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Laxmi Narayan Rathour Counsel for Respondent :- G.A.

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Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Narendra Kumar Johari,J.

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Heard Sri Laxmi Narayan Rathour, learned counsel for the petitioners and Shri Jai Narain, learned A.G.A.-I for State respondents.

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This petition has been filed for quashing the F.I.R dated 11.8.2022 arising out of Case Crime No.351 of 2022, under Section 366 IPC, P.S. Nawabad, District Jhansi. Further prayer has been made not to arrest the petitioners in the aforesaid case.

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Learned counsel for the petitioners submits that as per High School mark-sheet-2017 the date of birth of the petitioner no.1 namely Kamini Yadav is 15.05.2022 and she is more than 20 years' old. As per Aadhar Card, the petitioner no.2 is aged about 35 years' old. Both the petitioners are major and they have solemnized their marriage with each other with free will, according to Hindu Rites and Custom on 31.08.2022. They have also got their marriage registered with the Registrar of Marriages on 09.9.2022. The marriage registration certificate has been brought on record as Annexure No.4 to the writ petition. The present petition has been filed jointly by both the petitioners no.1 & 2 stating that the petitioner no.1 had left her paternal home out of her own sweet will and being a major girl, she is free to take her choice to perform marriage with the petitioner no.2. It is submitted that no offence under Section 366 IPC is made out against the petitioner no.2 as the petitioner no.1 is a major girl. The entire criminal case lodged by the respondent no.3 is nothing but an abuse of the process of the law.

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Learned 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

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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.

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As regards the age of the victim girl, as indicated in the Junior High School mark-sheet, which is appended as Annexure No.2 to the writ petition, no dispute has been raised by learned AGA. It is, thus, clear that both the petitioners are major. The fact, that the present writ 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. Once the age of the victim girl is not in dispute, then the petitioners no.1 & 2 cannot be made accused for committing offence under Section 366 IPC as victim had left her home in order to live with the petitioner no.2.

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We make it clear that the question in the present 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.

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In view of the above discussion, we are of the considered view that from the first information report no offence under Section 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

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the petitioner no.2 willingly and is living with him as a married woman.

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In view of the above, the writ petition succeeds and is allowed. The F.I.R dated 11.8.2022 arising out of Case Crime No.351 of 2022, under Section 366 IPC, P.S. Nawabad, District Jhansi as well as all consequential proceedings are hereby quashed.

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We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners.

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Order Date :- 9.12.2022 RKP

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Digitally signed by RAKESH KUMAR PATEL Date: 2022.12.09 16:11:44 IST Reason: Location: High Court of Judicature at Allahabad

Smt.Kamini Yadav and Another v. State of U.P. and 2 Others

Case brief

What is this about?

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Smt.Kamini Yadav and Another v. State of U.P. and 2 Others

Case brief

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