Mohd. Kallo @ Mohd.Jubeel vs State & Ors.

Virendra Saran, J.—Petitioner, Mohd. Kallo alias Mohd. Jubeel, is involved in crime No. 124 of 1999 under Section 363/366, I.P.C. of P.S. Kotwali District Lakhimpur Kheri.

A case was registered against the petitioner on the strength of F.I.R. dated 2721999 lodged by Maiku Lal stating therein that on 2421999 his daughter, Km. Renu (minor), was at his house. She eloped with the petitioner on account of some inducement "KISI BAHANEY SE BAHALA PUSHLA KAR MERILADKI Km. RENU KO LE GAYA". The F.I.R. further mentions that while leaving the house Renu took away her clothes and ornaments.

It is alleged in the writ pet i lion lhai Km. Renu and the petitioner loved each other. The writ petition goes on to state that Renu, who was 19 years of age, after embracing Islam married the petitioner on 531999. She also changed her name as Reshma. The marriage was performed by a Qazi in Bareilly District. Copy of the Nikahnama has been filed as Annexure2 to the writ petilion. Annexure3 is a copy of an affidavit sworn by Renu before Notary (Sri Gyanendra Kumar, Advocate, Bareilly) stating thai she was 19 years of age and thai she has lo her own freewill without any concern changed her religion. On the affidavit, photograph of Renu is to be found and she has described herself as wife of the pelilioner. The wril pciition is founded on the ground lhai Km. Renu, who is a major has voluntarily, of her own free will entered into marriage with the petitioner and in view of this no offence under Seetion 363, I.P.C. or under Seetion 366, I. P. C. is spelled out against the petitioner. On 1231999 this Court directed that Renu should present herself before the Chief Medical Officer, Lucknow, for ascertaining whether she is a major. The report of the Chief Medical Officer, Lucknow dated 1831999 is on the iCfTd which shows that the age of Rcnu is 18 years. On 1251999, Rcshma (maiden name Renu) appeared before us. Informant Maiku Lal was also personally, present. Maiku Lal was also allowed to have conversation with his daughter. Reshma told us that she has entered into marriage with the petitioner of her own free will and added that her real date of birth is 1st January. 1981. She further stated that even though her father was ready to take her back, but he was not ready to accept petitioner, Mohd. Kallu, as his soninlaw. We directed her to appear before the Chief Judicial Magistrate, Lucknow, for recording her statement under Section 164, Cr. P.C. and her statement was recorded by the learned Chief Judicial Magistrate, Lucknow. In her statement, she reiterated that her actual date of birth is 1st January, 1981. She stated that she has entered into marriage with the petitioner out of her own free will and was residing with the petitioner as his wife. She also stated that she wanted to reside with her husband. She specifically stated that she was not induced or misled in any manner by any one (MUJHE KISI NE BHI BAHLAYA, PHUSLAYA YA BARGALAYA NAHIN HAI). She also stated that she does not want to go to her father''s place because his father would commit her and her husband''s murder.

On behalf of informant, Maiku Lal, a counter affidavit has been filed. In the counter affidavit it is mentioned that Renu is a minor. Annexure CA1 to the counteraffidavit is photocopy of school certificate of Bhagwandin Arya Kanya Inter College, LakhimpurKhcri, in which the date of birth of Renu has been given 111983. It is neither mentioned in the counter affidavit that Renu had given affidavit before the Notary under some pressure. Rejoinder affidavit of Reshma (Renu) has also been filed. In the rejoinder affidavit she has specifically stated that she is a major. In Para 4 of the rejoinder affidavit it is mentioned that she had started going to school at a later stage of age as she remained ill for about three years when she was a child and thereafter she was going to school, i.e. Mishri Devi Shishu Vidyalaya, where she studied upto Class V. It is further mentioned that initially her father had given her date of birth as 111981 inMishrfDevi Shishu Vidyalaya, but, subsequently, changed the year of her date of birth from 1981 to 1983, even though, by her looks, Renu appeared to be elder. She has reiterated in the rejoinder affidavit that she had fallen in love with the petitioner and married him out of her own free will. We may note here that even in the school certificate filed with the counter affidavit, the last institution attended by Renu is mentioned as Mishri Devi Shishu Vidyalaya, LakhimpurKhen and therefore, the allegations in the rejoinder affidavit that Renu had studied in Mishri Devi Shishu Vidyalaya is obviously correct.

We have heard learned counsel lor the petitioner, learned counsel lor the respondent. Maiku Lal and the learned Government Advocate and have also perused the material placed on the record of the writ petition.

The fact that Renu has left her parental house and joined the company of the petitioner is not an issue in the present writ petition. The recital in the F.I.R. that Renu had taken away her jewellery and clothes clearly show that she had gone away of herself. The case of the petitioner as weil as the statement of Renu are to the effect that Renu had entered into marriage with the petitioner and both arc living as husband and wife. The anchor sheet of the argument of the learned counsel for the complainant is that Renu is a minor. Renu''s stand throughout has been that she was born in 1981, but her father reduced her age by two years by making a mention that she was born in 1983. In her rejoinder affidavit, Renu has mentioned that in her childhood she remained ill for about three years and for this reason her schooling started late and initially she had studied in another school, namely Mishri Devi Shishu Vidyalaya. These assertions in the rejoinder affidavit of Renu appear to be correct, under orders of this Court, the Chief Medical Officer, Lucknow had examined Renu and opined that she is about 18 years of age. Renu was in Court before us and appeared to be sufficiently grown and a major. In view of the assertions made by Renu, the medical report of the Chief Medical Officer and our observation, we arc unable to attach much importance to the school certificate filed along with the counter. If the schooling of Renu had started late, it was quite natural for her father to mention her age by reducing it by a couple of years. It is common knowledge that while describing the date of birth parents sometimes get reduced ages recorded in the schools for the purpose of employment, marriage and the like. We are of the view that Renu was not a minor and her age was above 18 years. Hence the offence of kidnapping a minor from lawful guardianship can by no means be brought home to the petitioner. We have already observed above that Renu has entered into marriage with Mohd. Kallu alias Mohd. Jubcel and she has embraced Islam and both are living as husband and wife. We are also of the view that if Renu, who has taken a decision to marry the petitioner and has gone to the extent of changing her religion, is reverted back to her parents by whatever means, it will create unforeseen complications in the lives of both Renu and the petitioner who initially belonged to different communities. Caste and communal barriers in our country play their own role. We may observe here that efforts should be to preserve the marriage rather than to destroy the same. In the social background of our country, if Renu is married to someone else and the husband comes to know of her previous affair with petitioner atleast the lives of Renu and her husband maybe ruined. While emphasising the need to preserve the marriage, in somewhat similar circumstances the Supreme Court in the case ofSangita Rani (Smt.) alias Mahnaz Jahan v. State of Uttar Pradesh and another, 1992 Supp (1) SCC 715, observed:

"........nothing should be allowed to happen which would affect that position."

It may further be emphasis that the continuance of proceedings arising out of the F.I.R. in the instant case are not likely to be fruitful and will simply result in the waste of public time and money.

We are conscious of the circumstances giving rise to this petition. The circumstances, as indicated by the papers filed on record as well as perusal of the petition, counter and rejoinder affidavits, are: (a) that the petitioner, Mohd. Kalloo alias Mohd. Jubeel, is the person who has married Km. Renu Srivastava, (b) that Renu Srivastava embraced Islam and entered in the nuptial bond. She thereafter assumed a second name Reshma, (c) that from the F.I.R. as well as from the allegations and counter allegations it appears clearly to us a case of elopement for marriage as the two were in love, (d) that she had emphatically asserted that she was born on 111981 and (e) that the incident giving rise to the offence under Section 361, 306I.P.C., had occurred on 2421999, are clearly indicative of the fact that on that date she had crossed the age of 18 years. This fact she had stated in the affidavit filed by her in support of the petition of the petitioner. The father, who is the respondent, has challenged this fact by filing an affidavit and appending therewith a school leaving certificate as Annexiure "CA1", which shows her date of birth as 111983. This school leaving certificate so filed by the father was issued by the Principal, Bhagwandin Arya Kanya Inter College, LakhimpurKheri. This further shows that she got her early education, before timing (sic) this school in Class VI on 3131993, in Mishri Devi Shishu Vidyalaya, LakhimpurKheri, Smt. Reshma has very categorically stated in the.rejoinder affidavit that her date of birth in Mishri Devi Shishu Vidyalaya was shown by her father as 111981, but, because of her ailments during the early age, while admitting her in Bhagwandin Arya Kanya Inter College on 313 1993, her age was shown as 111983. Although she has not filed any documentary evidence in support of her contention, but we find a ring of the truth in her assertion made in paragraph No. 4 of her rejoinder affidavit and this assertion was not challenged in any manner by her father by filing any supplementary counter affidavit or even orally. As has already been stated by us in this order, the father of the girl, Km. Renu, did appear before us and had not raised any such questions during the hearing of this petition. One thing further is clear from the two affidavits (counter and rejoinder) that the date of birth and the month of birth are common, i.e. 1st January. The dispute raised is only with regard to the year. Km. Renu Srivastava alias Reshama''s assertion is that she was born, according to the entry in Mishri Devi Shishu Vidyalaya, on 111981. We are inclined to accept this assertion of her made in paragraph No. 2 of the affidavit and paragraph No. 4 of the rejoinder affidavit. In view of this, we discard the transfer certificate filed by the father along with the counter affidavit as Annexure CA1 with regard to the year of birth. This discussion clearly leads to an inference that on the date when she eloped with the petitioner she was above 18 years of age, Le. a major. In arriving at this conclusion we are fortified also by opinion of the Medical Officer. Provisions of Section 361, I.P.C. makes the age for kidnapping from lawful guardianship with regard to a female under 18 years of age. The F.I.R. shows Km. Renu Srivastava to be a minor. Whereas we find clearly that she was not a minor but a major, above 18 years and it is not a case of kidnapping or enticing away any minor girl from the lawful guardianship of her parents, in the circumstances of the case but a clear case of elopement, which culminated finally into her marriage with the petitioner after embracing Islam. From the above circumstances it is clear and we cannot shut our eyes to her statement that if she is sent back to her father, she may be killed. Taking the above circumstances in its totality, we have no hestitation in coming to the conclusion that Km. Reshma being a major was free to act in accordance with her volition and we do not find any merit in the arguments advanced by the learned counsel for the respondent. We also do not see justification in continuing the proceedings arising out of the F.I.R. in the instant case any further, as in our opinion it is not likely to beat any fruits. It will be sheer wastage of public time and money as well as permitting harassment to the petitioner and his wife, the deponent, in this case.

In the result, this wrt petition is allowed. The entire proceedings animating fiom the F.I.R. dated 2721999 lodged by Maiku Lal relating to Crime No. 124 of 1999, under Section 363/366, I.P.C. of PS. Kotwali District, LaknimpurKheri is hereby quashed.

Judgment pronounced under Chapter XII, Rule 1 of the Rules of Court, since Hon''ble S.K. Agarwal, J. is sitting at Allahabad. Petition allowed