Allowed

Abdulla v. the State of Kerala

Kerala HC28 Nov 2022Crl.MC/1778/2018

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings alleging child marriage under Section 188 IPC and the Child Marriage Prohibition Act. Finding that marriage certificates and witness statements proved the ceremony occurred on 23.6.2017 when the victim was 18, the Court held no Contravention occurred.

What did the court decide?

All further proceedings in C.C. No. 387/2017 on the file of the Judicial First Class Magistrate Court II, Perinthalmanna are quashed.

Abdulla Vs the State of Kerala — Child Custody and Guardianship | Kerala HC (2022)

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CRL.MC NO. 1778 OF 2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 28^TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944

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CRL.MC NO. 1778 OF 2018

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CRIME NO.82/2017 OF Wandoor Police Station, Malappuram

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CC 387/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERINTHALMANNA

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PETITIONERS/ACCUSED:

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1 ABDULLA, S/O. KAMMU, THORAPPA HOUSE, VEETHANASSERY, CHATHANGOTTUPURAM, MALAPPURAM DISTRICT.

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2 SIRAJUDHEEN, S/O. ABDULLA, THORAPPA HOUSE, VEETHANASSERY, CHATHANGOTTUPURAM, MALAPPURAM DISTRICT.

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3 JAMSHEER, S/O. HAMZA, KINATTINGAL PATTANI HOUSE, MATTAKKULAM, VANIYAMBALAM, MALAPPURAM DISTRICT.

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4 FATHIMA, D/O. ABDULLA, THORAPPA HOUSE, VEETHANASSERY, CHATHANGOTTUPURAM, MALAPPURAM DISTRICT.

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5 HAMZA, S/O. KUNHIMUHAMMED, KINATTINGAL PATTANI HOUSE, THORAPPA HOUSE, VEETHANASSERY, CHATHANGOTTUPURAM, MALAPPURAM DISTRICT.

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6 JAMEELA, W/O. HAMZA, THORAPPA HOUSE, VEETHANASSERY, CHATHANGOTTUPURAM, MALAPPURAM DISTRICT.

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BY ADV SRI.K.RAKESH

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RESPONDENT:

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THE STATE OF KERALA

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REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682 031 - FOR THE
SUB INSPECTOR OF POLICE, WANDOOR POLICE STATION,
MALAPPURAM DISTRICT.

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BY SRI.P.G.MANU-SR.PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 1778 OF 2018

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O R D E R

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This Crl.M.C has been filed to quash all further proceedings in C.C.No.387/2017 on the file of the Judicial First Class Magistrate

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Court II, Perinthalmanna.

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The petitioners are the accused Nos.1 to 6. The offences alleged against the petitioners are punishable under Section 188 of

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IPC and Sections 10 & 11 of the Child Marriage Prohibition Act, 2006.

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The prosecution case in short is that the accused Nos.1 to

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6 in contravention of the provisions contained in the Child Marriage Prohibition Act conducted the marriage of the minor daughter of accused Nos.5 and 6, namely Shahina with the 3^rd accused on 5.1.2017 at Veethanassery and thus committed the offence.

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I have heard Sri.Rakesh.K, the learned counsel for the petitioners and Sri.P.G.Manu, the learned Senior Public Prosecutor.

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The learned counsel for the petitioners submitted that in

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CRL.MC NO. 1778 OF 2018

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fact the marriage of the daughter of the 5^th and 6^th accused was solemnized with the 3^rd accused on 23.6.2017 and not on 5.1.2017 as alleged by the prosecution. The counsel further submitted that on

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23.6.2017 the victim had attained the age of 18 years and, thus, there is no contravention of the provisions of the Child Marriage Prohibition Act, 2006.

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Annexure D is the birth certificate of the victim girl

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Shahina. It would show that her date of birth is 7.6.1999.

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According to the prosecution, her marriage with the 3^rd accused was solemnized on 5.1.2017 and according to the petitioners, the date of marriage was on 23.6.2017. If the marriage was on 5.1.2017 as alleged by the prosecution, definitely it would contravene the provisions of the Child Marriage Prohibition Act in asmuchas the victim did not attain 18 years of age at that time. But the crucial question is whether there is any legal evidence to show that the marriage was solemnized on 5.1.2017.

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The parties are Muslims. Among Muslims the form of

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CRL.MC NO. 1778 OF 2018

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customary marriage is Nikah. After the solemnisation of the Nikah, it is the usual practice that it would be entered in the register of Mahal committee where the Nikah was solemnized. Thereafter, the factum of marriage would be entered in the register maintained by the local authorities on the basis of the certificate issued by the mosque committee.

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I have perused the case diary. The Secretary of the Veethanassery Juma Masjid Committee has issued the marriage certificate. It is stated in the said document that the marriage

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between the victim and the 3^rd accused was solemnized on 23.6.2017 at the Veethanassery Juma Masjid as per the Muslim religious rites. The certificate issued by the Secretary of

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Veethanassery Juma Masjid Committee has also been questioned by the police and he has stated that the Nikah was on 23.6.2017. On the basis of the marriage certificate issued by the Veethanassery Juma Masjid Committee, the entry has been made in the marriage register kept in the Porur Grama Panchayat office. Annexure C is

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CRL.MC NO. 1778 OF 2018

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the true copy of the certificate of marriage issued by the Registrar

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of Marriages, Porur Grama Panchayat. It would also show that the marriage was solemnized on 23.6.2017. One Akbar Ali, Vaniyabalam Juma Masjid who allegedly performed the Nikah of the victim and the 3^rd accused on 5.1.2017 was questioned by the police. He stated that he did not solemnize such a Nikah.

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Except the statement of the few neighbours who stated to

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have been participated in the marriage of the victim and the 3^rd accused on 5.1.2017, there is absolutely no material to show that their marriage was solemnized on 5.1.2017. It is pertinent to note that admittedly the marriage of the brother of the victim was taken place on 5.1.2017. The victim as well as her father gave statement

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that in fact on that day the engagement ceremony of the victim and the 3^rd accused was taken place. Thus, there is every possibility that the neighbours who participated in the marriage of the brother of the victim might have misunderstood the engagement ceremony of the victim as Nikah. Since the materials on record would show

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CRL.MC NO. 1778 OF 2018

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that the marriage was on 23.6.2017, the provisions of the Child Marriage Prohibition Act would not apply. Hence, I am of the

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view that no purpose will be served in proceeding further against the petitioners. Accordingly, all further proceedings in C.C.No.387/2017 on the file of the Judicial First Class Magistrate Court II, Perinthalmanna is hereby quashed.

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The Crl.M.C is allowed.

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Sd/-

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DR. KAUSER EDAPPAGATH JUDGE

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CRL.MC NO. 1778 OF 2018

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APPENDIX OF CRL.MC 1778/2018

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PETITIONER ANNEXURES

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ANNEXURE ATRUE COPY OF THE F.I.R IN CRIME NO.
82/2017 OF THE WANDOOR POLICE STATION
DATED, 26.04.2017.
ANNEXURE BTRUE COPY OF THE MEMORANDUM OF EVIDENCE
AND CHARGE IN CRIME NO. 82/17 OF WANDOOR
POLICE STATION.
ANNEXURE CTRUE COPY OF THE CERTIFICATE OF MARRIAGE
ISSUED BY THE REGISTRAR OF MARRIAGES
(COMMON), PORUR GRAMA PANCHAYATH DATED,
10.08.2017.
ANNEXURE DTRUE COPY OF THE EXTRACT OF THE BIRTH
CERTIFICATE OF SHAHINA MAINTAINED AT
PORUR GRAMA PANCHAYATH.

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RESPONDENTS ANNEXURES: NIL

Abdulla v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Abdulla v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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