The Allahabad High Court has discovered that a grownup lady above the age of 18 years has the proper to stay and marry any person of her will.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Shamim Ahmed exceeded this order, whilst listening to a petition filed through Pratiksha Singh and another.
The plea sought quashing of the First Information Report in case underneath Sections 363 and 366 IPC, Police Station Khandwa, district Chandauli, as per which the daughter of the informant used to be enticed away by way of the accused and he apprehended that both she has been bought or killed. The prayer was once made to inn an FIR and proceed with an investigation following the law.
The FIR was once challenged on the floor that the sufferer and the 2d petitioner have fallen in love and have solemnised their marriage and are, therefore, residing together. A specific statement has been made in that regard in the writ petition and a marriage settlement has additionally been positioned earlier than the Court.
The Court noted, “A counter affidavit has been filed by using the informant in which the sole floor advised to oppose the prayer is that the marriage itself is no longer legal because the bridegroom has no longer carried out the age of 21 years at the time of marriage. It is referred to that since marriage itself is illegal, therefore, marriage claimed via the petitioner is opposite to regulation and the FIR ought no longer to be quashed.”
Section 5 (iii) of the Hindu Marriage Act, 1955 offers for the minimum age of bride and bridegroom as 18 years and 21 years, respectively. In the data of the case on the date of alleged marriage, the sufferer is proven to be above 18 years and the sole floor is that the bridegroom is beneath 21 years.
In the information of the case, each of the petitioners is proven to have married every different out of their volition and are residing collectively for the ultimate extra than two years due to the fact of their marriage.
“The legality of the marriage is no longer below venture earlier than us. Even otherwise, any violation of Section 5 (iii) of the Act would now not render the marriage void. Section eleven of the Act offers for void marriages, whilst Section 12 of the Act gives for voidable marriages.
“While defining void marriages, the legislature has mainly ignored to point out Clause (iii) of Section 5 as one of the grounds for violation of which the marriage itself is rendered void. Similarly, Section 12 additionally does no longer specify that any violation of Clause 5 (iii) would render the marriage voidable,” cited the Bench.
The Court stated that in such circumstances, the mere reality that the 2d petitioner used to be no longer above 21 years would now not render the marriage void.
At best, any violation of Section 5 (iii) would render the man or woman accountable for punishment in phrases of Section 18 of the Act. However, the marriage itself would no longer be questionable on such grounds. On the date when the depend is being heard, the 2nd petitioner in any other case is above 21 years of age. Necessary substances to entice an offence below Section 363 and 366 would then no longer be made out, as soon as it is proven that the sufferer has joined the organisation of the accused out of her free will and she has neither been kidnapped nor kidnapped or enticed to compel into the marriage.
Section 363 also would now not be attracted since it in simple terms gives for punishment for kidnapping from lawful guardianship. Kidnapping from lawful guardianship is described in Section 361 IPC, as per which any man or woman who takes or entices any minor below sixteen years of age if a male, or beneath 18 years of age if a female, solely then an offence can be stated to have been committed. Here the alleged sufferer is above 18 years of age, as per her High School Certificate and she has definitely referred to in the writ petition that she has long past with the 2nd petitioner out of her will and has additionally married the 2d petitioner.
“The statement made in that regard has now not been denied in the counter affidavit, as soon as that be so, we locate those integral elements to invoke the provisions of Section 363 and 366 IPC are honestly determined missing in the information of the case and the offence, as alleged, is no longer proven to have been committed. It is in any other case nicely settled that it is proper of a fundamental to stay with anyone out of his/her will.
In the statistics of the case, the sufferer admittedly is above 18 years of age and as soon as she had joined the business enterprise of a 2d petitioner, voluntarily, the offences disclosed in the First Information Report are genuinely now not proven to have been made out”, the Court discovered whilst permitting the writ petition.
The First Information Report bearing Case beneath Section 363 and 366 IPC, Police Station Khandwa, District Chandauli, is hereby quashed, the Court ordered.