Judgment:
S.N. Aggarwal, J.
1. This is a writ petition filed by five persons for quashing of criminal case under Section 363/366/120B/34 IPC registered against them on the complaint of respondent No. 2 vide FIR No. 642/2006 with Police Station Uttam Nagar, New Delhi.
2. The respondent No. 2 is the father of the prosecutrix. He lodged a complaint with police of Police Station Uttam Nagar on 26.07.2006 and alleged kidnapping of the prosecutrix by the petitioners. The prosecutrix is present in court. The case of the petitioners and that of the prosecutrix is that the prosecutrix had married petitioner No. 1 Bhagwan Singh of her own free will as per Hindu rites in Arya Samaj Vedic Marriage Mandal, Yamuna Bazar, Delhi on 15.07.2006. The prosecutrix was a muslim girl prior to her marriage with petitioner No. 1. Before her marriage with petitioner No. 1 she converted from Islam to Hinduism.
3. In response to notice of this writ petition, status report has been filed on behalf of respondent No. 1 and the same has been perused by me. A perusal of the status report reveals that the Investigating Officer during investigation of the case has collected the proof of age of the prosecutrix and got it verified from her school `Sarvodaya Kanya Vidyalaya, Uttam Nagar' last attended by her according to which her date of birth is 04.03.1987 and the date of birth of the prosecutrix's younger sister is 27.02.1988. The Investigating Officer also collected the proof of age of the prosecutrix from Nagar Palika Arsad, Amroha, UP according to which her date of birth is 25.04.1989. The status report further reveals that the Investigating Officer has also verified the fact of marriage of the prosecutrix with petitioner No. 1 and this has been found to be correct. The prosecutrix present in court says that she is carrying a three months' old pregnancy from petitioner No. 1. She further says that she has married petitioner No. 1 voluntarily and of her own free will without there being any pressure on her from anybody whomsoever.
4. On the last date i.e. 30.10.2006, respondent No. 2 Along with his counsel Mr. P.K. Anand, Advocate was present in court and on that date, he had opposed the quashing of the aforementioned FIR registered against the petitioners. His objection to the quashing was that the petitioner No. 1 who allegedly married the prosecutrix is a 42 years old person whereas the prosecutrix according to him is less than 18 years of age. He had further contended that the prosecutrix being under 18 years of age could not have legally converted from Islam to Hinduism. However, he could not place any material in support of his said contention and had taken adjournment to satisfy this Court about his contention relating to conversion. Today nobody is present on behalf of respondent No. 2 for reasons best known to him. The learned Counsel appearing on behalf of the petitioners as also the learned Counsel appearing on behalf of respondent No. 1 have submitted that there is no law which prevent conversion of the prosecutrix even if she is under 18 years of age. I do not wish to express any opinion on this contention and the same left open to be considered in some other case when it is raised and contested.
5. The FIR sought to be quashed was registered against the petitioners under Section 363 & 366 of the Indian Penal Code. As far as Section 366 IPC is concerned, a plain reading of the contents of the FIR would show that the essential ingredients of the said offence do not exist. The offence under Section 366 IPC on the face of it is not made out against the petitioners.
6. In relation to offence under Section 363 IPC for which aforementioned FIR was registered against the petitioners, it would be appropriate to refer to a judgment of the Hon'ble Apex Court in S. Varadarajan v. State of Madras reported as : 1965CriLJ33 wherein it was held by the Hon'ble Supreme Court as under:
But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have `taken' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.
7. In the aforementioned case, the court noting the distinction between taking and allowing a minor to accompany a person held that no case of kidnapping was made out.
8. In the present case, we have two dates of birth of the prosecutrix before us. One is from her school certificate and the second is from her birth certificate purported to has been issued by the municipality. The law on this aspect is well settled that the court shall prefer the date of birth as mentioned in the municipality certificate in preference to the age mentioned in the school certificate. At present there is no cogent proof before this Court whether the birth certificate collected by the Investigating Officer from the municipality is genuine or not as the opportunity to challenge the same has not been given to the person affected by the age mentioned in the said certificate. As per school certificate, the date of birth of the prosecutrix is 04.03.1987 and thus her age was 19 years 4 months on the date of her marriage with petitioner No. 1. As per municipality certificate, the date of birth of the prosecutrix is 25.04.1989 and thus her age comes to 17 years 3 months. The prosecutrix present in court appears to be a grown up girl and to me she appears to be more than 18 years old. This Court cannot ignore the fact that the petitioner is on her family way and is carrying pregnancy of three months from petitioner No. 1 against whom FIR of kidnapping is lodged by the prosecutrix father. In Ravi Kumar v. State and Anr. reported as : 124(2005)DLT1 , a Division Bench of this Court has ruled that the minority of the spouse cannot be a ground to declare their marriage illegal. As per this judgment, the marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but over 15 years of age. I feel myself bound by the Division Bench judgment of this Court in Ravi Kumar's case (supra).
9. It is apparent from the above that the petitioner No. 1 is the husband of the prosecutrix to whom she is lawfully married. The petitioner No. 2 is the younger brother of petitioner No. 1. Petitioners No. 3 & 4 were implicated in the case as they were witnesses to the marriage certificate which is at page 12 of the paper book. Petitioner No. 5 is the mother-in-law of petitioner No. 2 and thus a close relative of the prosecutrix and her husband.
10. Since the prosecutrix has lawfully married of her own free will, the petitioners cannot be blamed of kidnapping her. Relying upon the judgment of the Supreme Court in S. Varadarajan's case (supra), even offence under Section 363 IPC is not made out against any of the petitioners. There does not seem to be any conspiracy amongst them in the alleged kidnapping of the prosecutrix in view of peculiar facts and circumstances of this case mentioned hereinabove.
11. For the foregoing reasons, I am of the considered view that this is a fit case for quashing of the aforementioned FIR registered against the petitioners and the same is hereby quashed. All consequent proceedings pursuant thereto are also ordered to be dropped. This writ petition stands disposed of.
12. At this stage, while judgment was concluded Mr. Ranjan Roy, Advocate appeared on behalf of respondent No. 2 and he has been apprised of the order. The counsel says that he does not to make any submission in the matter.