High Court quashed kidnapping FIR and rape charges where the girl went with the accused on her own volition and was above 16. Custody denied as the minor expressed desire to stay with parents and marriage validity was disputed.
FIR under C.R. No.114 of 2004 and charge under Section 376 IPC quashed; custody of girl not granted to petitioner.
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.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1613 OF 2004
Hafiz Aziz Choudhary
V/s
The State of Maharashtra & ors... Respondents
Mr. N.B. Pawaskar for the Petitioner.
Ms. P.H. Kantharia, A.P.P. for Respondents Nos.1 and 2.
Mr. Sayaji Nangre for Respondent No.3.
CORAM : H.L. GOKHALE &
Smt.V.K. Tahilramani, JJ.
DATE : 17TH AUGUST 2004
P.C.:
Rule. Heard Mr. Pawaskar in support of thispetition. Ms.Kantharia, A.P.P. appears for Respondents
Nos.1 and 2. Mr.Nangre appears for Respondent No.3.
2.This petition is filed by a young man of 24 years
contending that he has married the daughter of Respondent
No.3 by name Lubna, and that in spite of that a charge of
kidnapping has come to be registered against him under C.R.
No.114 of 2004 at the Mumbra Police Station. He, in fact,
seeks a registration of an offence against Respondent No.3,
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father of the girl Lubna, for wrongful detention of Lubna,
and then through prayer (c) he seeks a direction to the
Senior Inspector of Police, Mumbra Police Station and
Respondent No.3 to produce the girl before the Court.
3.The Respondent No.3 has filed a reply and has placed
on record his version of the relationship between the
Petitioner and his daughter.
As far as the Petitioner is concerned, it is his case that he and this Lubna were got attracted to each other and on two earlier occasions went out of Mumbai on their own volition. This happened on 19th March 2004 and then again on 14th April 2004. On both these occasions, Lubna accompanied the Petitioner on her own and came back. It is the case of the Petitioner that in fact the Petitioner and Lubna were to be married, but for some reason or the other because of the pressure brought from the family of Respondent No.3 that the marriage could not take place. It is his further case that ultimately a nikah was performed on 27th June 2004 and that is how thereafter they had gone out of Mumbai and had stayed together. In the meanwhile, a C.R. has come to be registered against him for kidnapping Lubna. It is his case that she had come with him on her own volition and had got married and also that she is a major in age and for that purpose relies upon3
a medical certificate given by the Civil Hospital at Thane.
He, therefore, submits that the C.R. registered against him
be quashed and set aside and Lubna, whom he claims to be
his wife, be restored to him.
5.The Respondent No.3 has filed a reply and has
contended that Lubna is a minor. She is born on 1st July
1988. He has relied upon the school certificates given
from various schools wherein she studied in Muradabad, U.P.
As also a bonafide certificate given by the Junior College
where she has been studying in Mumbra. It is his case that
she has been kidnapped by the Petitioner and, therefore,
the charge was correctly registered against the Petitioner.
As against that, the Petitioner submits that all these
certificates are of recent date and therefore they should
not be relied upon. Therefore, in our view, it would be
advisable to rely on the medical opinion only, both of
which clearly place her age in any case above 17 years.
6.Since this is a case of a young boy and still
younger girl, we asked Respondent No.3 to keep his daughter
present in Court. We interviewed her as also the
Petitioner in our chamber. The daughter of Respondent No.3
Lubna has disputed her marriage with the Petitioner. She
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however did not dispute that she had gone with him on three
different occasions on her own volition. She has expressed
her desire to continue to remain with her parents only.
This being the position, in our view, there is no occasion to maintain the charge of kidnapping against the Petitioner. Mr.Pawaskar for the Petitioner has relied upon a judgment of the Apex Court in S. Varadarajan v. State ofMadras – AIR 1965 SC 942, where a girl on her own volition
goes with another boy even though she may be a minor, it is
held that it will not constitute kidnapping. This is of
course provided she must be in a position to form her own
opinion and she must have attained the age of discretion.
In the present case, the facts are similar. It is very
clear that the daughter of Respondent No.3 had gone on her
own volition with the Petitioner. This being the position,
the case for kidnapping is not made out. We, therefore,
grant prayer (a) and quash the F.I.R. under C.R. No.114 of
2004 registered with Mumbra Police Station. The police
will, therefore, take no action against the Petitioner any
more.
8.There is one more facet of this matter. The police
have added the charge under section 376 of IPC
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subsequently. As far as this charge is concerned, even
according to the police record and the medical examination
conducted by the police, her age is 17+. In her own
deposition given to the police on 3rd July 2004, she has
given her age as 19. In that she has stated that she had
fallen in love with the Petitioner and then married with
the Petitioner. In a situation like this, when her age is
above 16 years as per the medical record and according to
her own statement and when on her own volition she stayed
with the Petitioner, a charge under section 376 IPC is not
sustainable. The same is also quashed.
9.As far as restoring the custody of Lubna to the
Petitioner is concerned, there is a dispute about the
marriage between the two. Lubna has also stated that she
would like to remain with her parents. That being so, no
order can be passed against her wishes. There is a
disputed question of fact as to whether such a marriage did
take place. This being the position, we cannot grant the
other prayer in this petition, namely that the custody of
Lubna be handed over to the Petitioner.
10.Rule made absolute in part as above.
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11.Authenticated copy of this order be made available
to the parties.
(H.L. GOKHALE, J.)
(SMT. V.K. TAHILRAMANI, J.)
3 issues framed by the court
Whether an FIR for kidnapping can be quashed when the girl accompanied the petitioner on her own volition and is above the age of discretion.
Whether a charge under section 376 IPC is sustainable when the victim is above 16 years and accompanied the accused on her own volition.
Whether custody can be granted to the petitioner against the expressed wishes of the minor girl to remain with her parents.
Colour shows how this judgement treated each authority
S. Varadarajan v. State of MadrasApplied¶25
S. Varadarajan v. State of Madras – AIR 1965 SC 942 · Who else cites this
Hafiz Aziz Choudhary
The State of Maharashtra
Respondent No.3
H.L. Gokhale
V.K. Tahilramani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court