Gulab Din And Ors vs State And Anr

Through the medium of the instant petition, the petitioners have challenged F.I.R No. 182/2016 registered with Police Station, Surankote for offence

under Sections 366/109 RPC.

Briefly stated the facts of the case are that one Mohd. Razaq, who happens to be nephew of petitioner No. 1, the son of petitioner Nos. 2 and 5,

brother of petitioner No. 3 and cousin of petitioner No. 4, contracted marriage with one lady Ms. Nayeem Fatima. According to the petitioners, the

aforesaid Ms. Nayeem Fatima entered into wedlock with Mohd. Razaq out of her free will and volition. It is alleged that father and brother of Ms.

Nayeem Fatima were not happy with this marriage and they threatened to finish off her husband namely Mohd. Razaq. On account of this, the

respondent No. 2, who happens to be the brother of Ms. Nayeem Fatima, lodged the impugned F.I.R against Mohd. Razaq and his close relatives, the

petitioners herein. It is averred that Mohd. Razaq and Ms. Nayeem Fatima, both had attained the age of majority at the time, when they entered into

wedlock and that they are presently happily living as husband and wife. The petitioners have placed on record a copy of the marriage agreement, a

copy of the Nikah Nama and a copy of the statement made by Ms. Nayeem Fatima before the Court of Chief Judicial Magistrate, Rajouri. In the said

statement, she has made it clear that she has, out of her free will, entered into wedlock with Mohd. Razaq and that her relatives are not happy with

this marriage, as a result of which, they are harassing her. On the basis of the aforesaid averments and the material placed on record, the petitioners

have contended that the allegations of kidnapping made in the F.I.R against them are absolutely false and concocted.

I have heard learned counsel for the parties and perused the material on record.

As per the contents of the impugned F.I.R, which has been lodged by brother of the girl namely Nayeem Fatima, on 26.09.2016, the girl is stated to

have gone missing from her house regarding which a missing report was lodged with the police on 28.09.2016. It is recorded in the F.I.R that the

complainant, after making inquiries, came into know that his sister has been kidnapped by the petitioners and one Mohd. Razaq. The F.I.R has been

registered for commission of offences under Sections 366/109 RPC.

The material on record produced by the petitioners, which has remained unrebutted, shows that Mohd. Razaq and Nayeem Fatima are both major

and they have entered into a wedlock out of their free will. This gets strength from the statement of the girl that has been recorded by learned Chief

Judicial Magistrate, Rajouri on 28.09.2016. The marriage, as per Nikah Nama, has taken place on 12.09.2016, i.e. prior to the date of lodging of the

impugned F.I.R.

In the backdrop of the aforesaid facts, let us see whether, the offence for which petitioners have been booked, is made out. The petitioners as

already noted, have been booked for offence under Sections 366/109 RPC. Section 366 RPC reads as under:-

Kidnapping or abducting any woman to compel her marriage, etc.-Whoever kidnaps or abducts any woman with intent that she may be

compelled or knowing it to be likely that she will be compelled, to marry any person against her will, 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, shall be punished with

imprisonment or either description for a term which may extend to ten years, and shall also be liable to fine; [and, whoever, by means of

criminal intimidation as defined in this Code, or of abuse of authority, or any other method of compulsion, induces any woman to go from

any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person,

shall also be punishable as aforesaid.]

From the above, it appears that the following are the essential ingredients of offence under Section 366 RPC.

(i) Kidnapping or abducting any women,

(ii) Such kidnapping or abducting must be,

(a) With intent to compel the women or knowing it to be likely that she will be compelled to marry any person against her will,

(b) Or that she may be forced or seduced to illicit intercourse, Second part of the section requires-

(i) Criminal intimidation or abuse of authority or any other method of compulsion,

(a) To induce any women to go from any place,

(b) With intention or knowingly,

(c) To force or to seduce the women to illicit intercourse with another person.

Thus, in order to make out an offence under Section 366 IPC, the kidnapping has to be with an intention to compel the women to marry any person

against her will.

In the instant case, the statement of the girl Nayeem Fatima recorded by learned Chief Judicial Magistrate, Rajouri shows that she has entered into

wedlock with Mohd. Razaq out of her free will and at the relevant time, she was aged 19 years. Thus, from her statement, it becomes clear that she

was not kidnapped but she had accompanied Mohd. Razaq out of her own will and volition.

The Supreme Court, in Shafin Jahan Vs. Asokan K.M, AIR 2018 SC 1933 has, while emphasizing the liberty of a major girl to stay with an

individual of her choice, observed as under:-

“78. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several

decisions of the Court. In Gian Devi v Superintendent, Nari Niketan, Delhi31, a three-judge Bench observed that where an individual is

over eighteen years of age, no fetters could be placed on her choice on where to reside or about the person with whom she could stay:

“…Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the

petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed

regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for

that of the petitioner in such a matter.â€​

Again in Lata Singh Vs. State of U.P, AIR 2006 SC 2522, the Supreme Court took judicial notice of the harassment, threat and violence meted out

to young women and men, who marry against the wishes of their families, and observed as under:-

This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or

girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the

daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-

religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a

major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to

threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to

task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

From a perusal of the ratio laid down in the aforesaid judgments of the Supreme Court, it is clear that liberty of an individual to choose his/her

partner when such an individual has attained the age of majority, has to be respected.

In the instant case, the petitioner was major as on the date of the occurrence and she had voluntarily solemnized marriage with Mohd. Razaq on

28.09.2016, i.e. before the lodging of the instant F.I.R. The company of Nayeem Fatima with Mohd Razaq in these circumstances cannot be stated to

be illegal. Thus, no offence under Section 366 RPC is made out in the instant case.

For the foregoing discussion, it is clear that the allegations made in the impugned F.I.R in the light of the other material on record do not disclose

commission of any offence and make out a case against the accused. Thus, this Court would be well within its jurisdiction to quash the impugned F.I.R

and the proceedings emanating therefrom to secure the ends of justice.

Accordingly, the petition is allowed and the impugned F.I.R as well as the proceedings emanating therefrom are quashed.