No Offence of Kidnapping u/s 363 IPC if Girl was just few days short of attaining Majority at the time of Marriage

  

The Delhi High Court in one its recent rulings has held that a minor on the verge of attaining majority is capable of making conscious decisions.

Quashing an FIR against the accused under Section-363 of IPC (kidnapping), the single-judge Bench of Justice Subramonium Prasad noted that the girl was on the verge of attaining majority and it cannot be said that she was incapable of knowing as to what is good and what is bad for her. 

The accused-petitioner had married a girl aged 17 years 11 months & 12 days i.e. one month before attaining the age of majority. The mother of the girl filed the complaint, however she claimed to have married out of her own wish.

"She desired to get married to the petitioner and went to the petitioner and expressed her desire and persuaded the petitioner to take her with him and get married. Therefore, in the facts of this case, there was no inducement by the petitioner,"  the Court noted.

The Learned Counsel of the petitioner contended that the petitioner had not induced the girl and had not taken her out of lawful guardianship of her parents. He stated that it was the girl herself who went to the petitioner and asked him to take her away from her parents. He, therefore, further contended that the offence of kidnapping from the lawful guardianship of the parents of girl is not made out against the petitioner. Reliance was placed on the SC judgment in S. Varadarajan v. State of Madras, 1964 Latest Caselaw 191 SC.

The Court accepted the contention and noted that it was choice made by the girl without any coercion and she was fully capable to make that decision.

"The girl was 17 years 11 months & 12 days old at the time of marriage which is less than one month below the age of majority. She live in a Metropolitan city and has studied till 11th standard. She has categorically stated in her statement under Section 164 Cr.P.C that she was in love with the petitioner herein and her parents used to object to their relationship. The facts also reveal that it was her who went to the petitioner and virtually forced him to take her away from her parents. The petitioner has married the girl and is living happily with him. It, therefore, cannot be said that there was any kind of inducement by the petitioner and as stated by te girl in her statement under Section 164 Cr.P.C, there was no active participation by the petitioner in the alleged offence of kidnapping."

 Stressing that the purpose of the Section 482 Cr.P.C is to prevent the abuse of the process of law and more particularly, to secure the ends of justice.

"The opening words of Section 482 Cr.P.C "nothing in this Code" shows that Section 482 Cr.P.C is an over-riding provision. These words indicate that none of the provisions of the Code limits or restricts the inherent powers of Section 482 Cr.P.C"

The Court cited SC Ruling in Gian Singh vs. State of Punjab, 2012 Latest Caselaw 527 SC and Rajiv Thapar v. Madan Lal Kapoor, 2013 Latest Caselaw 74 SC to clarify on the role of Section 482 Cr.P.C and description of powers vested in High Courts via this.

In view of the above, the Court quahsed the FIR accordingly.

Read Order Here:

 

 

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