# Islam @ Paltoo v. State of U.P

- **Citation:** (2025) 9 ILRA 891
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-19
- **Case number:** Criminal Appeal No. 6400 of 2007
- **Bench:** Anil Kumar-X
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/islam-paltoo-v-state-of-u-p-53785
- **Pages:** 11

## Headnote

G.A.

Issue for Consideration
The appellant was accused of enticing and
taking away a minor girl. The trial court
convicted the appellant because the victim was
a minor, making her consent immaterial for the
offenses.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 363, 366, 376-The
court acknowledged the Supreme Court
judgment
(Independent
Thought
Vs.
Union of India,2017) which struck down
Exception 2 to section 375 IPC-Since, the
occurrence took place in 2005,the old law
applied-As the victim was above 16 and
physical relations occurred after their
marriage was solemnized, the act fell
under the protection of Exception 2 to
section 375 IPC-The appellant cannot be
held guilty for commission of rape-Appeal
allowed.
Held
The court distinguished between "taking" or
"enticing"-Citing the judgment in S. Varadrajan
Vs. State of Madras, the court ruled that simply
asking the victim to accompany him on a trip
was not sufficient to establish "enticing" or
"taking"-Since the victim left on her own free
will,
there
was
no
evidence
of
active
inducement, allure, or manipulation by the
appellant to cause her to leave her guardianThe evidence showed the couple performed
Nikah. The court considered the victim was a
Muslim girl above 16 years who had attained
puberty, allowing her to enter a marriage
contract under Muslim Personal Law. The
appellant was acquitted of all charges.(Para 13
to 26) (E-6)

Case law Cited
Thakorlal D.Vadgdama Vs The State of Gujarat
AIR (1973) SC 2313, S.Varadarajan Vs State of
Madras, 1965 AIR 942, Independent Thought Vs
Union of India, AIR (2017) SUPREME COURT
4904-referred to.
List of Acts
Criminal Procedure Code, 1973,Indian Penal
Code, 1860.

List of Keywords
'taking' or 'enticing' ,Section 164 CrPC, Nikah,
birth certificates, mutual consent, POCSO Act,
PCMA, Hindu Marriage Act,1955, Dissolution of
Muslim marriages and Divorce Act, 1939,
aggravated penetrative sexual assault, "wives",
statutory
rape,
ila,
zihar,
khula,
mubarat,Prohibition of child marriage Act, 2006,
"minor" "contracting party" Majority Act,1875,
Muslim Personal law (Shariat) Application Act,
1937, Principles of Mohammedan Law by Sir
Dinshah Fardunji Mulla.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 6400 of 2007
From the Judgment and Order dated 19.09.2025
of the High Court of Judicature at Allahabad.
Islam @ Paltoo Vs. State of U.P.

Appearances for Parties
Counsel for Appellant(s)
Mayank Bhushan
Counsel for Respondent(s)
G.A.

## Text

9 All. Islam @ Paltoo Vs. State of U.P.
891
the
accused
are
minor
and
superficial or where the evidence is so
clear and cogent, so independent and
disinterested, so probable, consistent and
credit-worthy, that it far outweighs the
effect of the omission on the part of the
prosecution to explain the injuries. The
present, however, is certainly not such a
case, and the High Court was, therefore, in
error in brushing aside this serious
infirmity in the prosecution case on
unconvincing premises."

32. In Nand Lal and others vs.
State of Chhattisgarh, (2023) 10 SCC
470, the Apex Court has relied upon the
above observations made in Lakshmi Singh
and others vs. State of Bihar, (1976) 4 SCC
394, the Apex Court has further placed
reliance in State of Rajasthan vs. Madho
(1991) Supp (2) SCC 396, State of M.P.
vs. Mishri Lal (2003) 9 SCC 426 and
Nagarathinam vs. State (2006)9 SCC 57,
while acquitting the accused persons due to
non explanation of injuries of accused by
the prosecution.

33.
Thus
from
the
aforesaid
judgments of the Apex Court, it can be
safely concluded that non explanation of
injuries sustained by the accused person by
the prosecution, makes the prosecution
story doubtful. That means the prosecution
is not coming with clean hands and there is
an attempt to suppress the real facts.
Therefore,
the
prosecution
witnesses
becomes unreliable, and in case, the
defence has given the explanation of the
entire incident that becomes more reliable.
Therefore, the benefit of doubt is to be
accorded to the accused persons.

34. In the instant case, the
prosecution has completely failed to
explain the injury sustained by the injured
Bhojpal, which has been sufficiently
proved in the instant case by the defence.
Thus it can be safely concluded that the
prosecution is not coming with any
explanation with regard to the injury
sustained by accused Bhojpal. Thus the
prosecution story is not reliable and benefit
of doubt is to be given to the accused.

35. Accordingly, the instant appeal
on behalf of the appellant no.3, Bhima is
allowed. The impugned judgment and
order dated 04.05.1984 passed by the trial
court
convicting
and
sentencing
the
appellant no.3 herein is hereby set aside.
The appellant no.3, Bhima is hereby
acquitted of the charges leveled against
him.

36. The appellants no.1, 2 and 4
have already died and the appeal on their
behalf was abated by previous orders. The
appellant no.3 is on bail. He need not
surrender. His bail bonds are cancelled and
Sureties are discharged.

37. Office is directed to send a
copy of this judgment along with the record
to the trial court to be consigned as no
further action is required in the instant case.
----------
(2025) 9 ILRA 891
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2025

BEFORE

THE HON'BLE ANIL KUMAR-X, J.

Criminal Appeal No. 6400 of 2007

Islam @ Paltoo ...Appellant
Versus
State of U.P. ...Respondents

Counsel for the Appellant:
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Mayank Bhushan

Counsel for the Respondents:
G.A.

Issue for Consideration
The appellant was accused of enticing and
taking away a minor girl. The trial court
convicted the appellant because the victim was
a minor, making her consent immaterial for the
offenses.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 363, 366, 376-The
court acknowledged the Supreme Court
judgment
(Independent
Thought
Vs.
Union of India,2017) which struck down
Exception 2 to section 375 IPC-Since, the
occurrence took place in 2005,the old law
applied-As the victim was above 16 and
physical relations occurred after their
marriage was solemnized, the act fell
under the protection of Exception 2 to
section 375 IPC-The appellant cannot be
held guilty for commission of rape-Appeal
allowed.
Held
The court distinguished between "taking" or
"enticing"-Citing the judgment in S. Varadrajan
Vs. State of Madras, the court ruled that simply
asking the victim to accompany him on a trip
was not sufficient to establish "enticing" or
"taking"-Since the victim left on her own free
will,
there
was
no
evidence
of
active
inducement, allure, or manipulation by the
appellant to cause her to leave her guardianThe evidence showed the couple performed
Nikah. The court considered the victim was a
Muslim girl above 16 years who had attained
puberty, allowing her to enter a marriage
contract under Muslim Personal Law. The
appellant was acquitted of all charges.(Para 13
to 26) (E-6)

Case law Cited
Thakorlal D.Vadgdama Vs The State of Gujarat
AIR (1973) SC 2313, S.Varadarajan Vs State of
Madras, 1965 AIR 942, Independent Thought Vs
Union of India, AIR (2017) SUPREME COURT
4904-referred to.
List of Acts
Criminal Procedure Code, 1973,Indian Penal
Code, 1860.

List of Keywords
'taking' or 'enticing' ,Section 164 CrPC, Nikah,
birth certificates, mutual consent, POCSO Act,
PCMA, Hindu Marriage Act,1955, Dissolution of
Muslim marriages and Divorce Act, 1939,
aggravated penetrative sexual assault, "wives",
statutory
rape,
ila,
zihar,
khula,
mubarat,Prohibition of child marriage Act, 2006,
"minor" "contracting party" Majority Act,1875,
Muslim Personal law (Shariat) Application Act,
1937, Principles of Mohammedan Law by Sir
Dinshah Fardunji Mulla.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 6400 of 2007
From the Judgment and Order dated 19.09.2025
of the High Court of Judicature at Allahabad.
Islam @ Paltoo Vs. State of U.P.

Appearances for Parties
Counsel for Appellant(s)
Mayank Bhushan
Counsel for Respondent(s)
G.A.

(Delivered by Hon'ble Anil Kumar-X, J.)

1. Heard learned counsel for the
appellant and learned AGA for the State.

2. This criminal appeal has been
preferred against the judgment and order
dated 11.9.2007 passed by Additional
Sessions Judge, Court No.8, Kanpur Dehat
in Sessions Trial No.51 of 2006 (State vs.
Islam @ Paltoo) arising out of Case Crime
No.307 of 2005, under Sections 363, 366
and 376 IPC. Appellant was found guilty
under Section 363 IPC and was sentenced
for five years and fine of Rs. 1,000/-.
Similarly, he was held guilty for offences
under Sections 366 and 376 IPC. He was
sentenced for seven years under Section
366 IPC along with fine of Rs. 1,000/- and
9 All. Islam @ Paltoo Vs. State of U.P.
893
was also sentenced for seven years and fine
of Rs. 2,000/- for offence under Section
376 IPC.

3. On September 25, 2005, a
written
complaint
(Ex.
Ka.
1)
was
submitted by informant Fazal Ahmad. It
was alleged that his daughter, aged
approximately 16 years, had gone outside
to answer the call of nature when she was
enticed away by the appellant and two
other persons. In response to the complaint,
an FIR (Ex. Ka. 5) was registered on
September
25,
2005,
based
on
the
application filed by the informant. The
victim was recovered on September 25,
2005, and was subsequently produced for
medical examination. Her statement under
Section 164 Cr.P.C. was recorded. After
the investigation was completed, a charge
sheet was submitted against the appellant.
Charges u/s 363, 366, and 376 IPC were
framed against appellant.

4. Seven witnesses were produced
by the prosecution to prove the charges
against the appellant. PW-1, the victim,
testified that she had gone outside to
answer the call of nature on August 25,
2005,
and
met
the
appellant
there.
Appellant asked her to accompany him on a
trip. Together, they went to Kalpi, where
she
stayed
with
him
for
a
day.
Subsequently, appellant took her to Bhopal,
where he rented a room for her and she
stayed there for a month. During her stay in
Bhopal, she was repeatedly raped by the
appellant. When his money ran out, he
abandoned her in Bhognipur, where she
was rescued by the police personnel.

5. PW-2, Fazal Ahmad, stated that
his daughter was enticed away by the
appellant on August 25, 2025. She was
recovered by the police and he met with her
at police station. She told him that she had
been taken by the appellant to Kalpi and
Bhopal, where she had been forcibly raped.
PW-3 Jahora Bano, the mother of the
victim, stated that her daughter was enticed
away by the appellant on 25.8.2005. She
was recovered by police personnel after a
month. After her recovery, she told her that
the appellant had often committed rape
against her.

6. PW-4, Dr. Achla, stated that the
victim
was
brought
before
her
on
September 26, 2005. She further stated that
there were no injuries, internal or external,
on the victim's body parts. PW-5, Dr. R.K.
Gupta, stated that the victim was referred to
EMO Mahila Chikisalaya Kanpur Nagar
for determining her age. PW-7 S.I. Omkar
Nath Singh, conducted the investigation in
this case and he proved spot map Ex. Ka. 7
and charge sheet Ex. Ka. 10.

7. The prosecution, after examining
the above witnesses, closed its evidence.
The appellant's statement was recorded
under Section 313 CrPC, where he stated
that he had performed Nikah with the
victim on August 29, 2005. He further
mentioned
that
this
marriage
was
performed by their mutual consent. A
registered compromise between them was
also executed before Registrar Kalpi,
Kanpur. In defence, the appellant produced
certain documents, including Nikahnama
Ex. 27 Kha, registered compromise Ex. 29
Kha, and the victim's and appellant's birth
certificates. The defence witness, DW-1
Khwaja, was also examined.

Findings of learned Trial Court

8. Trial Court has considered the
testimony of the victim and her mother,
P.W.-3 Jahoora Bano. It was observed that
894 INDIAN LAW REPORTS ALLAHABAD SERIES
victim stated that she was taken away by
the appellant, who asked her to accompany
him on a trip. They boarded a truck after
covering a distance of half an hour and
reached Kalpi, where they stayed for a day
and performed a Nikah before departing for
Bhopal. However, the Trial Court ruled that
it cannot be assumed that the victim was
taken away or enticed by the appellant by
referring to her statement made during
cross-examination. She stated that her
nikah with appellant was performed at
Kalpi, where they stayed for a day at one of
the appellant's relatives. Thereafter, she left
with appellant for Bhopal and stayed there
with him in a rented room. They resided
there happily for a month as a married
couple. The Trial Court has also observed
that deposition of P.W.-3 Jahora is
unreliable. It noted that she had stated that
she had gone to answer the call of nature
just two to three hours before the victim,
making it impossible for her to have
witnessed the incident. But considering that
victim was found minor at the time of
incident and the consent of victim is
immaterial , it convicted the appellant
under Sections 363, 366, and 376 of the
Indian Penal Code.

Arguments of learned counsel for
the appellant

9. The learned counsel for the
appellant argues that the victim admitted in
her cross-examination that she joined the
appellant and resided with him for a month.
She also stated that they resided in a rented
room in Bhopal. The counsel contends that
it's impossible for a minor girl, enticed by
the appellant, to remain unnoticed while
travelling from his village to Kalpi
(Kanpur) and Bhopal. Since they were both
residing in a rented room in a residential
building with other tenants and the
landlord, it cannot be assumed in given
circumstances that presence of minor girl
with any person will remain unnoticed.
Prosecution claims that victim was an
abductee. Abductee in all circumstances
would
offer
resistance
against
her
abduction, particularly if she is residing in
a building inhabited by other persons.
Again it cannot be said that no one will
notice her resistance. The victim also
admitted that they reached Kalpi by bypass,
boarded a truck, and covered the distance
by walking. She stated that they stayed in
the appellant's brother-in-law's house in
Kalpi, their nikah was solemnised at Kalpi
and they left for Bhopal after solemnization
of marriage where they lived as a happily
married couple. Therefore, it's evident that
the victim left with the appellant on her
own free will, performed the Nikah, and
entered into a nuptial relationship.

10. It was further submitted that
Nikahnama was produced by the appellant
in his defence, and no rebuttal was made by
the prosecution. While the prosecution
claims that the victim was approximately
16 years old at the time of the incident, her
ossification test indicates that she was older
than 16. Even Dr. Achala, who has
acknowledged the principles laid down by
Modi's jurisprudence, admitted during her
cross-examination that the victim's age
could be two years more or less than 16.
Considering these principles, it is evident
that the victim was an adult when she
solemnised her marriage with the appellant.
Therefore, the allegations under Section
366 IPC against the appellant are not
substantiated.

11. The prosecution has failed to
prove the charges under Sections 363 and
376 of the Indian Penal Code. The victim
herself has admitted to travelling in a truck
9 All. Islam @ Paltoo Vs. State of U.P.
895
with the appellant. In such circumstances, it
is highly unlikely that she was enticed or
abducted by him. Age of victim, as stated
by doctor, seems to be above 18 years.
Victim soon after leaving her house and
reaching Kalpi performed Nikah with the
appellant.
It
was
only
after
the
solemnisation of their marriage that they
established
a
physical
relationship.
Therefore, the allegations against the
appellant under Section 376 are also not
substantiated. The victim and the appellant
married with their consent, and the
appellant was also a major at the time of
their marriage. The age proof of the
appellant was also produced before the trial
court. In light of these circumstances,
where a major boy and a major girl marry
each other without any coercion or
misrepresentation, no offence can be made
out against the appellant. Hence, this
appeal is liable to be allowed, and the
impugned judgement of conviction should
be set aside.

Arguments of learned AGA

12. Learned AGA has submitted
that ingredients of Section 363 IPC are self
explanatory. The moment a person takes or
entices any minor girl under 18 years of
age with an intention to keep her away
from the lawful guardianship, he becomes
liable for the offence. Victim was found to
be of 16 years at the time of occurrence. If
a person persuades any minor in a manner
which creates willingness on the part of the
minor to be taken out of the keeping of the
lawful guardianship, then such person
becomes liable for the offence under
Section 363 IPC even though minor has
consented to leave his/her guardianship and
to accompany the accused person. Consent
of
minor
in
such
circumstances
is
immaterial
and
accused
cannot
take
defence that minor on her own had
accompanied
him.
Hence,
in
all
circumstances, appellant cannot evade from
culpability on the ground that minor had
left with him out of her own free will.

Conclusion

13. In order to determine the
culpability of appellant under section 363
and 366 I.P.C, it will be relevant to look
into two factors. Firstly, whether she was
enticed or taken away by the appellant?
Secondly, whether victim was minor at the
time she was allegedly kidnapped by the
appellant? The offence of "kidnapping from
lawful guardianship" is defined, thus, in the
first paragraph of s. 361 of the Indian Penal
Code :

 "Whoever takes or entices any
minor under sixteen years of age if a male,
or under eighteen years of age if a female,
or any person of unsound mind, out of the
keeping of the lawful guardian of such
minor or person of unsound mind, without
the consent of such guardian, is said to
kidnap such minor or person from lawful
guardianship."

14. It is evident that taking or
enticing away a minor out of the keeping of
a lawful guardian is an essential ingredient
of the offence of kidnapping. Hon'ble
Supreme
Court
in
Thakorlal
D.
Vadgdama v. The State of Gujarat (AIR
1973 SC 2313) has thoroughly discussed
the
distinction
between
"takes"
and
"entices" in following words :

 "The expression used in Section
361, I.P.C. is "whoever takes or entices any
minor". The word "takes" does not
necessarily connote taking by force and it
is not confined only to use of force, actual
896 INDIAN LAW REPORTS ALLAHABAD SERIES
or constructive. This word merely means,
"to cause to go," "to escort" or "to get into
possession". No doubt it does mean
physical taking, but not necessarily by use
of force or fraud. The word "entice" seems
to involve the idea of inducement or
allurement by giving rise to hope or desire
in the other. This can take many forms,
difficult
to
visualise
and
describe
exhaustively; some of them may be quite
subtle, depending for their success on the
mental state of the person at the time when
the inducement is intended to operate. This
may work immediately or it may create
continuous and gradual but imperceptible
impression culminating after some time, in
achieving
its
ultimate
purposes
of
successful inducement. The two words
"takes" and "entices", as used in Section
361, I.P.C. are in our opinion, intended to
be read together so that each takes to some
extent its colour and content from the
other. The statutory language suggests that
if the minor leaves her parental home
completely uninfluenced by any promise,
offer or inducement emanating from the
guilty party, then the latter cannot be
considered to have committed the offence
as defined in Section 361, I.P.C."

15. It is evident from Thakorlal D.
Vadgdama (Supra) term "takes" as
referred under Section 361 I.P.C means
causing, with or without the use of force to
move, escort or fall into possession. Taking
does not need to consist of a single act. A
whole series of acts could together
constitute the act of taking. Similarly,
"entices" seems to involve the idea of
inducement or allurement by giving rise to
hope or desire in the other. The core
difference is that "taking" a minor is a
physical act of causing the minor to go with
the offender, regardless of their consent.
"Enticing", however, is a mental act where
the offender uses manipulation or allure to
influence the minor to go willingly, even if
it's something they would not have done
otherwise. In "taking" the minor's desire or
mental state is irrelevant, but in "enticing",
the minor's act is a direct result of the
offender's inducement.

16. Now the point for consideration
is the nature of evidence required to prove
that victim was "taken" or "enticed" by
appellant . In this context, it will be
relevant to refer the observation made by
Hon'ble
Supreme
Court
in
S.
Varadarajan vs State Of Madras, 1965
AIR 942. In this case, daughter of
informant
frequently
conversed
with
appellant and when her sister noticed her
conduct, she informed her father. When her
father asked victim of her conduct she said
nothing but started weeping. Her father
took her to one of his relatives and left her
there to reside with them. On very next
day, she left the house of her relative,
called
appellant
and
both
of
them
proceeded to Mylapore where they went to
the Registrar's office and got their marriage
registered.

 On the foregoing facts, it was
held, "Here, we are not concerned with
enticement but what, we have to find out is
whether the part played by the appellant
amounts to "taking", out of the keeping of
the lawful L2Sup./64--3 246 guardian, of
Savitri. We have no doubt that though
Savitri had been left by S. Natarajan at the
house of his relative K. Natarajan, She still
continued to be in the lawful keeping of the
former but then the question remains as to
what is it which the appellant did that
constitutes in law "taking". There is not a
word in the deposition of Savitri from
which an inference could be drawn that she
left the house of K. Natarajan at the
9 All. Islam @ Paltoo Vs. State of U.P.
897
instance or even a suggestion of the
appellant. In fact, she candidly admits that
on the morning of October 1st, she herself
telephoned the appellant to meet her in his
car at a certain place, went up to that place
and finding him waiting in the car got into
that car of her own accord. No doubt, she
says that she did not tell the appellant
where to go and that it was the appellant
himself who drove the car to Guindy and
then to Mylapore and other places. Further,
Savitri has stated that she had decided to
marry the appellant. There is no suggestion
that the appellant took her to the SubRegistrar's office and got the agreement of
marriage registered there (thinking that this
was sufficient in law to make them man
and wife) by force or blandishments or,
anything like that. On the other hand the
evidence of the girl leaves no doubt that the
insistence of marriage came from her own
side." After considering the above facts, it
was held :-

 "It must, however, be borne in
mind that there is a distinction between
"taking"
and
allowing
a
minor
to
accompany a person. The two expressions
are not synonymous though we would like
to guard ourselves from laying down that in
no conceivable circumstance can the two
be regarded as meaning the same thing for
the purposes of S. 361 of the Indian Penal
Code. We would limit ourselves to a case
like the present where the minor alleged to
have been taken by the accused person left
her father's protection knowing and having
capacity to know the full import of what
she was doing voluntarily joins the accused
person. In such a case we do not think that
the accused can be said to have taken her
away from the keeping of her lawful
guardian. Something more has to be shown
in a case of this kind and that is some kind
of inducement held out by the accused
person or an active participation by him in
the formation of the intention of the minor
to leave the house of the guardian. It
would, however, be sufficient if the
prosecution
establishes
that
though
immediately prior to the minor leaving the
father's protection no active part was
played by the accused, he had at some
earlier stage solicited or persuaded the
minor to do so. In our, opinion if evidence
to establish one of those things is lacking it
would not be legitimate to infer that the
accused is guilty of taking the minor out of
the keeping of the lawful guardian merely
because after she has actually left her
guardian's house or a house where her
guardian had kept her, joined the accused
and the accused helped her in her design
not to return to her guardian's house by
taking her along with him from place to
place. No doubt, the part played by the
accused could be regarded as facilitating
the fulfilment of the intention of the girl.
That part, in our opinion, falls short of an
inducement to the minor to slip out of the
keeping of her lawful guardian and is,
therefore, not tantamount to 'taking".

17. In this case also, witnesses
including parents and victim have not
divulged any fact from were any inference
can be drawn that victim was either enticed
or taken by the appellant except making
bald allegations of "enticing" and "taking".
The victim's testimony in examination in
chief that she was taken by appellant who
asked her to accompany on a trip reflects
that she was a consenting party; her mother
has gone a step forward by deposing that
she was behind her daughter when she was
taken by appellant and could do nothing to
stop him as nobody was present there to
help her. The circumstances disclosed by
victim also manifest that their elopement
was premeditated. It is significant to note
898 INDIAN LAW REPORTS ALLAHABAD SERIES
that none of the prosecution witness has
stated any such fact which suggests that
appellant had done any such act from
which it can be derived that he manipulated
victim to go with him. Similarly, there is no
whisper in testimony of either witnesses
which suggests that he attempted to allure
the victim to accompany with him.
Deposition
of
victim
in
her
cross
examination reveals that she on her own
will left with appellant possibly with an
intent to marry her. Statement of victim
that she was asked by the appellant to
accompany him on a trip alone is not
sufficient to establish the act of "enticing"
and "taking". Act of "enticing" and "taking"
means that accused has played some active
role by which victim was allured or
influenced to accompany him. In the
foregoing circumstances it can be safely
concluded that prosecution has failed to
lead any evidence to suggest that victim
was
either
"enticed"
or
"taken"
by
appellant. Hence offence under Section 363
I.P.C against appellant is not made out.
Similarly, victim has categorically stated
that she along with appellant reached Kalpi
after leaving her house and Nikah with
appellant was performed there. She stated
that she stayed there for a day and then they
left for Bhopal where they lived as married
a couple. This evidence suggests that
physical relationship between the two was
established
after
their
marriage
was
solemnised. Therefore evidence pertaining
to kidnapping and abducting the minor in
order to compel her to marry, or compel her
to illicit intercourse is missing. Hence,
offence under Section 366 is also not made
out.

18. In continuation of above facts,
it will be important to consider, whether
marriage with minor even with her consent
will make appellant liable for offence under
Section 376

19. In this context, it would be
appropriate to consider the age of the
victim first. P.W-4, Dr. Achala, who had
referred the victim for ossification test. She
after referring to X-ray report has opined
that her age was above sixteen years.
However, she has also mentioned that age
of victim in any circumstance could not be
above 18 years. Considering that victim
was above 16 years at the time of her
marriage, it would be relevant to see that
whether her marriage at the age of 16 years
could be held legal? In this case, both
parties are Muslim and have performed
marriage as per Muslim rites and customs.
The victim has admitted that her Nikah was
performed at Kalpi and appellant has
produced Nikahnama. It will be significant
to refer Article 195 from the book
'Principles of Mohammedan Law by Sir
Dinshah Fardunji Mulla' . Article 195 lays
down the pre requites of valid marriage
under Muslim law and same is reproduced
below :

 "195. Capacity for marriage - (1)
Every Mahomedan of sound mind, who has
attained puberty, may enter into a contract
of marriage.

 (2) Lunatics and minors who
have not attained puberty may be validly
contracted in marriage by their respective
guardians. (3) A marriage of a Mahomedan
who is sound mind and has attained
puberty, is void, if it is brought about
without his consent.

 Explanation
-
Puberty
is
presumed, in the absence of evidence, on
completion of the age of fifteen years."
9 All. Islam @ Paltoo Vs. State of U.P.
899
20. Hence, evidence led before
Trial Court leads to only one conclusion
that victim aged above 16 years had
married with appellant on her own free
will. It will also be important to consider
whether the said marriage violates the
provisions of Prohibition of Child Marriage
Act,2006 . Section 2 of this Act provides
definitions of some of the relevant and
important terms, as under:

 "(a) "child" means a person who,
if a male, has not completed twenty-one
years of age, and if a female, has not
completed eighteen years of age;

 (b) "child marriage" means a
marriage to which either of the contracting
parties is a child;

 (c) "contracting party", in relation
to a marriage, means either of the parties
whose marriage is or is about to be thereby
solemnised;

 (f) "minor" means a person who,
under the provisions of the Majority Act,
1875 (9 of 1875), is to be deemed not to
have attained his majority." Section 3 of the
Act holds that Child marriages are voidable
at the option of contracting party being a
child. Similarly, Section 12 of this Act says
that if marriage of minor is solemnised by
enticing or taking out of legal guardians, or
is compelled by force to marry or is sold
for marriage, such marriage is void.

21. Therefore, it is apparent from
the Act that marriage in this case would at
most be held to be voidable. Again
question arises whether the provision of
Prohibition of Child Marriage Act,2006
would override the provision of Muslim
Personal Law (Shariat) Application Act
1937? Section 2, whereof, is reproduced
herein under: -

 2. Application of Personal law to
Muslims.-

 Notwithstanding any custom or
usage to the contrary, in all questions (save
questions relating to agricultural land)
regarding
intestate
succession,
special
property of females, including personal
property inherited or obtained under
contract or gift or any other provision of
Personal Law, marriage, dissolution of
marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower,
guardianship,
gifts,
trusts
and
trust
properties, and wakfs (other than charities
and charitable institutions and charitable
and religious endowments) the rule of
decision in cases where the parties are
Muslims shall be the Muslim Personal Law
(Shariat).

22.
Taking
into
account
the
exception (2) of Section 375 of IPC and
Prohibition of Child Marriage Act,2006,
Hon'ble Supreme Court in Independent
Thought vs Union Of India, AIR 2017
SUPREME COURT 4904 held that sexual
intercourse with a girl below 18 years of
age is rape regardless of whether she is
married or not. In opening paragraph of
judgment, it was held, "1. The issue before us
is limited but one of considerable public
importance ? whether sexual intercourse
between a man and his wife being a girl
between 15 and 18 years of age is rape?
Exception 2 to Section 375 of the Indian
Penal Code, 1860 (the IPC) answers this in
the negative, but in our opinion sexual
intercourse with a girl below 18 years of age
is rape regardless of whether she is married or
not." Further in para28 and 31 , it was held,
900 INDIAN LAW REPORTS ALLAHABAD SERIES
 " 28. Section 375 of the IPC
defines 'rape'. This section was inserted in
the IPC in its present form by an
amendment carried out on 3rd February,
2013 and it provides that a man is said to
commit rape if, broadly speaking, he has
sexual intercourse with a woman under
circumstances falling under any of Page 19
the seven descriptions mentioned in the
section. (A woman is defined under Section
10 of the IPC as a female human being of
any age). Among the seven descriptions is
sexual intercourse against the will or
without the consent of the woman; clause
'Sixthly' of Section 375 makes it clear that
if the woman is under 18 years of age, then
sexual intercourse with her - with or
without her consent - is rape. This is
commonly referred to as 'statutory rape' in
which the willingness or consent of a
woman below the age of 18 years for
having sexual intercourse is rendered
irrelevant and inconsequential."

 "31. Therefore, Section 375 of the
IPC provides for three circumstances
relating to 'rape'. Firstly sexual intercourse
with a girl below 18 years of W.P. (C) No.
382 of 2013 Page 20 age is rape (statutory
rape). Secondly and by way of an
exception, if a woman is between 15 and 18
years of age then sexual intercourse with
her is not rape if the person having sexual
intercourse with her is her husband. Her
willingness or consent is irrelevant under
this
circumstance.
Thirdly
sexual
intercourse with a woman above 18 years
of age is rape if it is under any of the seven
descriptions given in Section 375 of the
IPC (non-consensual sexual intercourse)."

23.
In
the
said
judgement,
provisions of IPC and POCSO Act were
also discussed and it was held that that
there
is
no
difference
between
the
definition of rape as laid down in IPC and
POCSO, but definition of rape is somewhat
more elaborate. Considering Section 42-A
of POCSO Act, it was held that provisions
of the POCSO Act will override the
provisions of any other law (including the
IPC) to the extent of any inconsistency.
Considering the provisions of POCSO Act
and IPC, it was observed, "98. ???. In sum,
marital rape of a girl child is effectively
nothing but aggravated penetrative sexual
assault and there is no reason why it should
not be punishable under the provisions of
the IPC. Therefore, it does appear that only
a notional or linguistic distinction is sought
to be made between rape and penetrative
sexual assault and rape of a married girl
child and aggravated penetrative sexual
assault. There is no rationale for this
distinction and it is nothing but a
completely arbitrary and discriminatory
distinction."

24. Thereafter, Hon'ble Supreme
Court
further
dealt
with
incongruity
between the exception (2) of Section 375,
Prohibiting of Child Marriage Act, Hindu
Marriage Act and Dissolution of Muslim
Marriages, 1955 and Divorce Act, 1939
and it was held by Hon'ble J. Deepak Gupta
in Para 19, "It is obvious that while making
amendments to various laws, some laws are
forgotten and consequential amendments
are not made in those laws. After the
PCMA was enacted both the Hindu
Marriage Act, 1955 and the Dissolution of
Muslim Marriages and Divorce Act, 1939
also should have been suitably amended,
but this has not been done. In my opinion,
the PCMA is a secular Act applicable to all.
It being a special Act dealing with children,
the provisions of this Act will prevail over
the provisions of both the Hindu Marriage
Act and the Muslim Marriages and Divorce
Act, in so far as children are concerned."
9 All. Smt. Nirmala Devi Vs. State of U.P. & Ors.
901
Accordingly,
Exception
2
of
Section 375 I.P.C was struck down and it
was held that :-

 "88.
In
view
of
the
above
discussion, I am clearly of the opinion that
Exception 2 to Section 375 IPC in so far as it
relates to a girl child below 18 years is liable to
be struck down on the following grounds:?

 (i)
it
is
arbitrary,
capricious,
whimsical and violative of the rights of the girl
child and not fair, just and reasonable and,
therefore, violative of Article 14, 15 and 21 of
the Constitution of India;

 (ii) it is discriminatory and violative
of Article 14 of the Constitution of India and;

 (iii) it is inconsistent with the
provisions of POCSO, which must prevail.

 Therefore, Exception 2 to Section
375 IPC is read down as follows:

 "Sexual intercourse or sexual acts
by a man with his own wife, the wife not
being 18 years, is not rape".

 It is, however, made clear that this
judgment will have prospective effect.

 89. It is also clarified that Section
198(6) of the Code will apply to cases of rape
of "wives" below 18 years, and cognizance
can be taken only in accordance with the
provisions of Section 198(6) of the Code."

25. From the foregoing observations
as held by Hon'ble Supreme Court in
Independent Thought (supra), it is very much
apparent that exception 2 of Section 375 IPC
has been struck down on the ground that said
provision is inconsistent with the provisions of
POCSO Act and is also violative of Article 14,
15 and 21. But it has also been held that the
said judgment of Supreme Court will have
prospective effect. In this particular case, it is
apparent that alleged occurrence had occurred
way back in the year 2005. Therefore,
appellant cannot be held guilty for commission
of rape because victim at the time of
occurrence was above 16 years and physical
relations between the two had taken place after
solemnisation of their marriage.

26. In view of the above, the present
appeal is allowed and the appellant is
acquitted of the charges.

27.
Accordingly,
judgment
of
conviction and order of sentence is set aside.
The appellant is on bail and his personal bond
is cancelled and sureties are discharged and
further directed to furnish bail bond in
compliance of Section 437-A Cr.P.C. to the
satisfaction of the Court concerned within two
month from today.

28. The Trial Court's record be
remitted back along with copy of this
judgment.

29. Compliance report be submitted
to this Court at the earliest. Office is directed
to keep the compliance report on record.
----------
(2025) 9 ILRA 901
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Appeal No. 11573 of 2024

Smt. Nirmala Devi ...Appellant
Versus
State of U.P. & Ors. ...Respondents