Allowed¶25

Smt. Laxmi Sharma and 3 Others v. State of U P and 3 Others

Allahabad HC27 Mar 2023CRLP/2540/2023

Case brief

AI extract

What is this about?

Quashing of FIR under Section 366 IPC; major girl left paternal home willingly and married of sweet will; right to choose partner; life and liberty; writ petition allowed; FIR Case Crime No. 0107 of 2023, PS Firozabad North, District Firozabad; follows Smt. Juli Kumari, Criminal Misc. Writ Petition No. 17046 of 2022 (order dated 5.12.2022); Kavita Chandrakant Lakhani AIR 2018 SC 2099 cited within quoted order; protection from arrest; validity of marriage left open.

What did the court decide?

Quashing of the FIR dated 5.2.2023 registered as Case Crime No. 0107 of 2023 under Section 366 IPC, PS Firozabad North, District Firozabad, together with all consequential proceedings. ¶25

Smt. Laxmi Sharma and 3 Others Vs State of U P and 3 Others — Allahabad HC (2023) — LawSathi Research

What the court decided

AI extract

Outcome

Quashing of the FIR dated 5.2.2023 registered as Case Crime No. 0107 of 2023 under Section 366 IPC, PS Firozabad North, District Firozabad, together with all consequential proceedings.

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Issue for consideration

Whether any offence under Section 366 IPC is made out against petitioners nos. 1 and 2, who assert they are majors and married of their own sweet will, the criminal case being an abuse of the process of law. +1 more

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Court's answer

From the first information report no offence under Section 366 IPC is made out, inasmuch as petitioners nos. 1 and 2 are major and petitioner no. 1 has come up with the categorical stand that she left her home with petitioner no. 2 willingly and is living with him as a married woman.

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Ratio / Principle

The writ petition succeeds and is allowed; the FIR dated 5.2.2023 registered as Case Crime No. 0107 of 2023 under Section 366 IPC, PS Firozabad North, District Firozabad, as well as all consequential proceedings, are quashed.

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Key takeaways

Clarified that while deciding the present petition the Court has not looked into the validity of the marriage of the petitioners.obiter¶26

Detailed headnote1 paragraphs

Allahabad High Court (Hon'ble Vivek Kumar Birla, J. and Hon'ble Surendra Singh-I, J.; order dated 27.3.2023) allowed Criminal Misc. Writ Petition No. 2540 of 2023 and quashed the FIR dated 5.2.2023, registered as Case Crime No. 0107 of 2023 under Section 366 IPC, PS Firozabad North, District Firozabad, along with all consequential proceedings. Counsel submitted that petitioner no.1 (Laxmi Sharma, date of birth 4.1.2005 per High School certificate-cum-marks sheet) and petitioner no.2 (Sachin Yadav @ Chandra Mohan, date of birth 1.1.2001 per PAN Card) were majors on the date of incident, had married of their own sweet will, and had applied online for registration of the marriage; the learned AGA, though opposing, could not dispute these facts. Following its own earlier order dated 5.12.2022 in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others), which was quoted in extenso, the Court held that from the first information report no offence under Section 366 IPC is made out. The Court clarified that it had not looked into the validity of the marriage of the petitioners. (Within the quoted earlier order, reference appears to Kavita Chandrakant Lakhani vs. State of Maharashtra & Anr, AIR 2018 SC 2099.)

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Court No. - 45

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Case :- CRIMINAL MISC. WRIT PETITION No. - 2540 of 2023

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Petitioner :- Smt. Laxmi Sharma And 3 Others Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Brajesh Kumar Singh Counsel for Respondent :- G.A.,Santosh Kumar Shukla

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Hon'ble Vivek Kumar Birla,J. Hon'ble Surendra Singh-I,J.

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Supplementary affidavit placing on record the certified copy of the FIR filed today is taken on record.

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Heard Sri Brajesh Kumar Singh, learned counsel for the petitioners and learned AGA for the respondents and Sri Santosh Kumar Shukla, learned counsel for the informant and perused the record.

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The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 5.2.2023, registered as Case Crime No. 0107 of 2023, under Section 366 IPC, PS Firozabad North, District Firozabad and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

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Learned counsel for the petitioners submitted that no offence under Section 366 IPC is made out as the petitioner no.1 is a major girl and the entire criminal case lodged by the informant is nothing but an abuse of the process of the law. It is further submitted that as per High School certificate-cummarks sheet, date of birth of petitioner no.1- Laxmi Sharma is 4.1.2005 and as per PAN Card the date of birth of petitioner no. 2-Sachin Yadav @ Chandra Mohan is 1.1.2001 and as such, the petitioners no. 1 and 2 are major on the date of incident and they have married on their sweet will and no offence has been committed. By drawing attention to Annexure-4 to the petition, it is submitted that they have applied online for registration of their marriage. Reliance has been placed on a judgement and order dated 5.12.2022 passed by this Court in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) to submit that under identical circumstances the petition was allowed and FIR therein was quashed.

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The aforesaid order dated 5.12.2022 passed in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others) is quoted as under:

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"Heard learned counsel for the petitioners and learned AGA.

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Present writ petition has been preferred for quashing the FIR dated 25.10.2022 being Case Crime No.0475 of 2022 under Section 366 IPC, P.S. Saurikh, Distt. Kannauj and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.

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Placing reliance on the Aadhar Card of the victim girl showing her date of

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birth as 1.1.2004, it is submitted by the learned counsel for the petitioners that the petitioner no.1 is a major girl aged about more than 18 years on the date of incident.

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The present petition has been filed with the declaration, jointly by both the petitioners no.1 & 2 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.

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The present petition, however, has been filed on the assertion that no offence under Section 366 IPC is made out 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 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 Aadhar Card 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 and 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, 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

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up with the categorical stand that she had left her home with 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 FIR dated 25.10.2022 being Case Crime No.0475 of 2022 under Section 366 IPC, P.S. Saurikh, Distt. Kannauj 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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Per contra, learned AGA though has opposed the petition, however, could not dispute the aforesaid fact.

¶24

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, the petitioners no. 1 and 2 are major and the petitioner no. 1 has come up with the categorical stand that she had left her home with 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 First Information Report dated 5.2.2023, registered as Case Crime No. 0107 of 2023, under Section 366 IPC, PS Firozabad North, District Firozabad 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 :- 27.3.2023 Abhishek

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Digitally signed by :- ABHISHEK AGRAHARI High Court of Judicature at Allahabad

Smt. Laxmi Sharma and 3 Others v. State of U P and 3 Others

Case brief

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Smt. Laxmi Sharma and 3 Others v. State of U P and 3 Others

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