Rahul and Another vs State of U.P. and Others

Vinod Prasad, J.—Rahul and Pratibha Dhiman, the two Petitioners have filed the present writ petition with the prayer that F.I.R. of Crime No. 14 of 2008, under Sections 363 and 366, I.P.C. Police Station Khatauli, district Muzaffar Nagar be quashed. The ancillary prayer is for stay of arrest.

In brief the impugned F.I.R. was lodged by Raj Kumar Dhiman, father of Petitioner No. 2, Pratibha Dhiman, with the allegations that in the night of 28.12.2007 at 8.00 p.m. his daughter Petitioner No. 2 Pratibha Dhiman was cleaning utensils when Petitioner No. 1 Rahul alongwith one more companion armed with countrymade pistol came to the house of the informant and forcibly abducted Pratibha Dhiman. Informant Raj Kumar Dhiman raised hue and cry and he alongwith his son Mukesh attempted to get Pratibha Dhiman rescued but they were threatened and Pratibha Dhiman was abducted. Police gave assurances to act and recover Pratibha Dhiman but did not recover her and therefore, informant moved an application before D.I.G. on the basis of which the impugned F.I.R. was registered as Crime No. 14 of 2008, under Sections 363 and 366, I.P.C. at Police Station Khatauli, district Muzaffar Nagar, which F.I.R. is being sought to be quashed by the two Petitioners.

On the said facts we have heard Sri Vinod Kumar Sahu, learned Counsel for the Petitioners as well as Sri Amit Daga, learned Counsel for Respondent No. 4 Raj Kumar Dhiman, who is the informant of the impugned F.I.R. and father of Petitioner No. 2 as well as learned A.G.A. in opposition.

Counter-affidavit has been filed by Respondent No. 4 informant Raj Kumar Dhiman to which a rejoinder-affidavit has also been filed by the Petitioners.

Learned Counsel for the Petitioners contended that both the Petitioners, namely, Rahul and Pratibha Dhiman are major and they have solemnized their marriage on their own volition without any threat or coercion because they were in love with each other and therefore, the impugned F.I.R. be quashed. Both the Petitioners are co-villagers and they knew each other very well. They have solemnized the marriage under Hindu Marriage Act, 1955 and also got it registered on 10.1.2008 vide Annexure-4 to this affidavit. It is further contended, on the basis of Annexrues-2 and 3, which are the age certificate issued from the office from C.M.O., Dehradun, both dated 9.1.2008, that Pratibha Dhiman is aged about 18 years and Rahul Kumar is of 22 years of age. The marriage registration certificate is Annexure-4 to the writ petition. Learned Counsel for the Petitioners contended that since both the Petitioners have married, the impugned F.I.R. be quashed.

Contrarily Sri Amit Daga, learned Counsel for Respondent No. 4, basing his argument on the counter-affidavit submitted that Petitioner No. 2 is a minor and the marriage solemnized by her is void being contrary to Section 5 of Hindu Marriage Act. In the counter-affidavit informant has denied the fact that Petitioner No. 2 Pratibha Dhiman is a major. He has filed school leaving certificate wherein date of birth of Pratilbha Dhiman is recorded as 1.6.1995. The said certificate CA-1 has been issued by the Principal Primary School, Antwar, district Muzaffarnagar. Vide Annexure CA-2 informant has filed the photocopy of the Ration Card of his family members wherein age of Petitioner No. 2 is recorded as 13 years. Vide Annexure-CA-3 to the counter-affidavit the horoscope and the leep has been filed wherein also the date of birth of Petitioner No. 2 is recorded as 1.6.1995.

In the rejoinder-affidavit there is absolutely no documentary evidence filed to rebut the aforesaid Annexures-CA-1 to CA-3 and the emphasis has been laid only on the medical certificate issued by C.M.O., Dehradun.

We have considered the arguments raised by both the sides. The mooted question for our determination is as to whether Petitioner No. 2 is a major or not? In support of her proof of age Petitioners have relied upon the certificate of C.M.O., Dehradun as against the school leaving certificate, photocopy of Ration Card and the leep filed by Respondent No. 4 her father. Respondent No. 4 Raj Kumar Dhiman being the father of Petitioner No. 2 is the best witness to depose regarding date of birth of the Petitioner No. 2. In the counter-affidavit he has clearly averred that Petitioner No. 2 is a minor and in support of his said contention he has filed the aforesaid three documents mentioned hereinbefore. There can be an error of two years either side in the radiological age recorded by the doctor. There are decisions of the Apex Court that in respect of age the evidence of the parents and that of the school register and the leep are the best evidences and they should be preferred. Since Petitioners have failed to contradict the aforesaid three documents filed by informant Respondent No. 4 Raj Kumar Dhiman, we have no hesitation in holding that Petitioner No. 2 is a minor less than 18 years of age.

Since we have held that Petitioner No. 2 is a minor below 18 years of age, she could not have solemnized the marriage on her own will with Petitioner No. 1. u/s 5 of the Hindu Marriage Act the minimum age to solemnize the marriage by a female is statutorily prescribed as 18 years. Thus, the contention of learned Counsel for the Petitioner that Petitioner No. 2 has solemnized the marriage is contrary to Section 5 of the Hindu Marriage Act and such their marriage is void. We are not impressed by the argument of learned Counsel for the Petitioner that Pratibha Dhiman was forced to solemnize her marriage because Respondent No. 4 was forcing her to marry with one Dheeraj after taking Rs. 30,000. The father appeared before us and specifically denied the said allegation. In the interest of justice we also got the mother of Petitioner No. 2, namely, Smt. Santosh got summoned. She also appeared before us and vehemently denied the wild allegations levelled by Pratibha Dhiman. She is no uncertain terms stated before us that Pratibha Dhiman was abducted on gunpoint and it is absolutely false to say that she was being forced to marry with Dheeraj after taking Rs. 30,000. Against infatuated allegations without any basis and no foundation being laid in the writ petition we have no hesitation in accepting the version of the parents which is most natural and acceptable. Had the fact of taking Rs. 30,000 and forcing Petitioner No. 2 to marriage Dheeraj would have been correct the same would certainly have been stated as a fact in the writ petition, which averments is conspicuously silent in the whole of the writ petition. Even in the rejoinder-affidavit we have not been able to find anything with support the said argument raised by learned Counsel for the Petitioner. In our view, the statement by Petitioner No. 2 that she was forced to solemnize marriage after taking Rs. 30,000 implanted on her parents, is a temerity and is a patently false statement. Therefore, we reject the said contention of learned Counsel for the Petitioners.

In view of the above discussion, we find no merit in this writ petition as the impugned F.I.R. of abduction and kidnapping under Sections 363 and 366, I.P.C., vide Crime No. 14 of 2008 registered at Police Station Khatauli, district Muzaffarnagar cannot be quashed. This writ petition, therefore, is meritless and is hereby dismissed.

Interim order dated 19.2.2008 stands vacated.