# Pradeep Tomar & Anr v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 913
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Matter Under Article 227 No. 4804 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-tomar-anr-v-state-of-u-p-anr-46715
- **Pages:** 14

## Headnote

A. Civil Law - Constitution of India: Article
227; Indian Penal Code: Section 363; U.P.
Marriage
Registration
Rules,
2017;
Protection
of
Children
from
Sexual
Offences Act, 2012: Section 5/6 - Merely
because
child
marriages
have
been
performed in different parts of the country
as a part of a tradition or custom does not
necessarily mean that the tradition is an
acceptable one nor should it be sanctified
as such. Times change and what was
acceptable a few decades ago may not
necessarily be acceptable today. (Para 9)

B. Juvenile Justice (Care and Protection of
Children) Act, 2015: Section 94, 94(2) -
Reference to a medico-legal examination
for the determination of age - The
provisions of Section 94(2) makes it vivid that in
the face of a date of birth certificate from the
school or the matriculation or equivalent
certificate from the concerned examination
Board, the other evidence about the age of a
victim cannot be looked into. If the date of birth
certificate as envisaged in clause (i) of subSection (2) of S.94 of the Act is not available,
the birth certificate given by a corporation or a
municipal authority or a panchayat is the next
evidence to be considered in the rung. It is
only
when
the
evidence
about
age
envisaged under clauses (i) and (ii) of
Sub-Section (2) of S. 94 of the Act is not
available, that a victim can be referred to
a
medico-legal
examination
for
the
determination of her age.

In the present case, Court held that even if it is
the prosecutrix's stand, that she is 18 years old,
and has married Pintoo of her free will, she
cannot be regarded as a major or permitted to
prove herself a major, by asking herself to be
referred to medical examination by a Board of
Doctors, so long as her High School Certificate is
clear on the point. (Para 12)

C. Prohibition of Child Marriage Act, 2006:
Section 3, 12 - It was found that prosecutrix
was not enticed away from her guardian's lawful
custody. She left her home on her own and
married accused. Therefore, marriage was not
held to be void but voidable. (Para 13 to 15)

Writ Petition allowed. (E-3)

Precedent mentioned:

Suhani Vs St. of U.P., (2018) SCC Online SC 781
(Para 12)

Precedent followed:

## Text

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1 All. Pradeep Tomar & Anr. Vs. State of U.P. & Anr.
913
(2021)01ILR A913
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 4804 of 2020

Pradeep Tomar & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Sudhir Mehrotra, Sri D.K. Agrahari

Counsel for the Respondents:
C.S.C., Sri Rama Shankar Mishra

A. Civil Law - Constitution of India: Article
227; Indian Penal Code: Section 363; U.P.
Marriage
Registration
Rules,
2017;
Protection
of
Children
from
Sexual
Offences Act, 2012: Section 5/6 - Merely
because
child
marriages
have
been
performed in different parts of the country
as a part of a tradition or custom does not
necessarily mean that the tradition is an
acceptable one nor should it be sanctified
as such. Times change and what was
acceptable a few decades ago may not
necessarily be acceptable today. (Para 9)

B. Juvenile Justice (Care and Protection of
Children) Act, 2015: Section 94, 94(2) -
Reference to a medico-legal examination
for the determination of age - The
provisions of Section 94(2) makes it vivid that in
the face of a date of birth certificate from the
school or the matriculation or equivalent
certificate from the concerned examination
Board, the other evidence about the age of a
victim cannot be looked into. If the date of birth
certificate as envisaged in clause (i) of subSection (2) of S.94 of the Act is not available,
the birth certificate given by a corporation or a
municipal authority or a panchayat is the next
evidence to be considered in the rung. It is
only
when
the
evidence
about
age
envisaged under clauses (i) and (ii) of
Sub-Section (2) of S. 94 of the Act is not
available, that a victim can be referred to
a
medico-legal
examination
for
the
determination of her age.

In the present case, Court held that even if it is
the prosecutrix's stand, that she is 18 years old,
and has married Pintoo of her free will, she
cannot be regarded as a major or permitted to
prove herself a major, by asking herself to be
referred to medical examination by a Board of
Doctors, so long as her High School Certificate is
clear on the point. (Para 12)

C. Prohibition of Child Marriage Act, 2006:
Section 3, 12 - It was found that prosecutrix
was not enticed away from her guardian's lawful
custody. She left her home on her own and
married accused. Therefore, marriage was not
held to be void but voidable. (Para 13 to 15)

Writ Petition allowed. (E-3)

Precedent mentioned:

Suhani Vs St. of U.P., (2018) SCC Online SC 781
(Para 12)

Precedent followed:

1. Independent Thought Vs U.O.I. & anr.,
(2017) 10 SCC 800 (Para 9)

2. Jarnail Singh Vs St. of Hary., (2013) 7 SCC
263 (Para 11)

3. Smt. Priyanka Devi through her husband Vs
St. of U.P. & ors., 2018 (1) ACR 1061 (Para 11)

4. Smt. Nisha Naaz alias Anuradha & anr. Vs
St. of U.P. & ors., 2019 (2) ACR 2075 (Para
12)

Precedent overruled:

1. Smt. Rajkumari Vs Superintendent, Nari
Niketan, 1998 Cr.L.J. 654 (All.) (Para 8)

2. Smt. Ramsati @ Syamasti Vs St. of U.P.,
Habeas Corpus Writ Petition No. 245 of 2015,
decided on 07.09.2015 (Para 8)
914 INDIAN LAW REPORTS ALLAHABAD SERIES
Present petition assails the order dated
24.11.2020,
passed
by
Judicial
Magistrate- I, Hapur.

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of the
Constitution has been filed seeking to set
aside an order of the learned Judicial
Magistrate-I,
Hapur,
dated
24.11.2020,
passed in Case Crime No. 516 of 2020, under
Section 363 IPC, P.S. Pilakhuwa, District
Hapur, directing that the prosecutrix Km.
Shivani be permitted to go along with her
husband, the accused Pintoo son of Omvir.

2. A counter affidavit has been filed on
behalf of the second opposite party by Mr.
Rama Shankar Mishra, Advocate, which is
taken on record. The petitioner has filed a
rejoinder.

3. Admit.

4. Heard forthwith.

5. Heard Mr. Sudhir Mehrotra, learned
counsel for the petitioners, Mr. Rama
Shankar Mishra, learned counsel for opposite
party no.2 and Mr. S.S. Tiwari, learned AGA
appearing on behalf of the State.

6. The submission of Mr. Sudhir
Mehrotra,
learned
counsel
for
the
petitioners, briefly said, is to the effect that
the date of birth of the prosecutrix,
according to her High School Examination
Certificate issued by the U.P. Board of High
School and Intermediate Education, is
04.11.2004. She is, thus, a minor, aged 16
years and 2 months approximately. She
would attain majority on 05.11.2022. Mr.
Mehrotra submits that the Magistrate has
erred in permitting the prosecutrix to
accompany her husband, an accused in the
crime, going by the marriage acknowledged
by the parties to be solemnized on
21.09.2020 at the Pandav Kalin Neeli
Chhatri Mandir Sanatan Dharam Vivah
Padti Trust, Yamuna Bazar, Delhi. Mr.
Mehrotra submits that the prosecutrix, being
a minor, cannot be permitted to stay in a
matrimonial
relationship,
where
the
marriage would be void under Section 12 of
the Prohibition of Child Marriage Act, 2006
(for short, ''the Act of 2006'). He submits
that in any case the prosecutrix, who is not a
major, cannot be permitted to stay with her
husband and ought not to be allowed to
accompany him. Doing so, would be
permitting statutory rape and also an offence
under Section 5/6 of the Protection of
Children from Sexual Offences Act, 2012.

7. Mr. Rama Shankar Mishra, on the
other hand, submits that the prosecutrix in
her stand before the Magistrate has made it
clear that she has married the accused Pintoo
of her free will and wishes to stay with him.
He emphasizes that the parties' marriage has
been registered under the U.P. Marriage
Registration Rules, 2017 by the Marriage
Registration
Officer,
Ghaziabad
on
21.09.2020. He has drawn the attention of
this Court towards a certificate of the
registration of marriage, dated 21.09.2020.

8. This Court has perused the impugned
order and considered the entire facts and
circumstances. The prosecutrix is a little over
16 years of age. The Magistrate has been
swayed to permit the prosecutrix to go along
with the accused, her husband on ground that
the father of the prosecutrix made an
application that he would not take her back
home and that he had lodged an FIR, out of
social embarrassment. The Magistrate has
relied upon the decisions of this Court in
Smt. Rajkumari vs. Superintendent, Nari
Niketan, 1998 Cr.L.J 654 (All) and Smt.
1 All. Pradeep Tomar & Anr. Vs. State of U.P. & Anr.
915
Ramsati @ Syamsati vs. State of U.P.,
Habeas Corpus Writ Petition No. 245 of
2015, decided on 07.09.2005 to hold that
upon marriage of a minor according to her
wishes, she could be left free to live her life.

9. The law has changed much course
since the decisions above referred were
rendered. In Independent Thought vs.
Union of India and another, (2017) 10 SCC
800, it has been held:

"Rape or penetrative sexual assault

67. Whether sexual intercourse that a
husband has with his wife who is between 15
and 18 years of age is described as rape (not
an offence under Exception 2 to Section 375
IPC) or aggravated penetrative sexual assault
[an offence under Section 5(n) of thePocso
Act and punishable under Section 6 of the
Pocso Act] the fact is that it is rape as
conventionally
understood,
though
Parliament in its wisdom has chosen to not
recognise it as rape for the purposes of IPC.
That it is a heinous crime which also violates
the bodily integrity of a girl child, causes
trauma and sometimes destroys her freedom
of reproductive choice is a composite issue
that
needs
serious
consideration
and
deliberation.

72. If such is the traumatic impact that
rape could and does have on an adult victim,
we can only guess what impact it could have
on a girl child--and yet it is not a criminal
offence in the terms of Exception 2 to Section
375 IPC but is an offence under the PocsoAct
only. An anomalous state of affairs exists on
a combined reading of IPC and the Pocso
Act. An unmarried girl below 18 years of age
could be a victim of rape under IPC and a
victim of penetrative sexual assault under the
Pocso Act. Such a victim might have the
solace (if we may say so) of prosecuting the
rapist. A married girl between 15 and 18
years of age could be a victim of aggravated
penetrative sexual assault under the Pocso
Act, but she cannot be a victim of rape under
IPC if the rapist is her husband since IPC
does not recognise such penetrative sexual
assault as rape. Therefore such a girl child has
no recourse to law under the provisions of
IPC notwithstanding that the marital rape
could degrade and humiliate her, destroy her
entire psychology pushing her into a deep
emotional crisis and dwarf and destroy her
whole personality and degrade her very soul.
However, such a victim could prosecute the
rapist under the Pocso Act. We see no
rationale for such an artificial distinction.

73. While we are not concerned with
the general question of marital rape of an
adult woman but only with marital rape of
a girl child between 15 and 18 years of age
in the context of Exception 2 to Section
375 IPC, it is worth noting the view
expressed
by
theCommittee
on
Amendments to Criminal Law chaired by
Justice J.S. Verma (Retired). In Paras 72,
73 and 74 of the Report it was stated that
the outdated notion that a wife is no more
than a subservient chattel of her husband
has since been given up in the United
Kingdom. Reference was also made to a
decision [C.R. v. United Kingdom, ECHR,
Ser. A. No. 335-C (1995): (1995) 21 EHRR
363] of the European Commission of
Human
Rights
which
endorsed
the
conclusion that "a rapist remains a rapist
regardless of his relationship with the
victim". The relevant paragraphs of the
Report read as follows:

"72. The exemption for marital rape
stems from a long outdated notion of
marriage which regarded wives as no more
than the property of their husbands.
According to the common law of coverture,
a wife was deemed to have consented at the
time of the marriage to have intercourse
with her husband at his whim. Moreover,
this consent could not be revoked. As far
916 INDIAN LAW REPORTS ALLAHABAD SERIES
back as 1736, Sir Matthew Hale declared:
''The husband cannot be guilty of rape
committed by himself upon his lawful wife,
for by their mutual matrimonial consent
and contract the wife hath given herself up
in this kind unto her husband which she
cannot retract.' [ Sir Matthew Hale --
History of the Pleas of the Crown, 1 Hale
PC (1736) 629. See further S. Fredman,
Women and the Law (OUP, 1997) pp. 5557.]

73. This immunity has now been
withdrawn in most major jurisdictions. In
England and Wales, the House of Lords
held in 1991 that the status of married
women had changed beyond all recognition
since Hale set out his proposition. Most
importantly, Lord Keith, speaking for the
Court, declared, ''marriage is in modern
times regarded as a partnership of equals,
and no longer one in which the wife must
be the subservient chattel of the husband'.
[R. v. R., (1992) 1 AC 599, p. 616: (1991)
3 WLR 767: (1991) 4 All ER 481 at p. 484
(HL)]

74. Our view is supported by the
judgment of the European Commission of
Human Rights in C.R. v. United Kingdom
[C.R.v. United Kingdom, ECHR, Ser. A.
No. 335-C (1995): (1995) 21 EHRR 363]
which endorsed the conclusion that [Ed.:
Emphasis has been supplied to the matter
between two asterisks.] a rapist remains a
rapist regardless of his relationship with the
victim [Ed.: Emphasis has been supplied to
the
matter
between
two
asterisks.].
Importantly, it acknowledged that this
change in the common law was in
accordance with the fundamental objectives
of the Convention on Human Rights, the
very essence of which is respect for human
rights, dignity and freedom. This was given
statutory recognition in the Criminal Justice
and Public Order Act, 1994."
 (emphasis in original)

74. In Eisenstadt v. Baird [Eisenstadt
v. Baird, 1972 SCC OnLine US SC 62: 31
L Ed 2d 349: 92 S Ct 1029: 405 US 438
(1972)] the US Supreme Court observed
that a

"marital couple is not an independent
entity with a mind and heart of its own, but
an association of two individuals each with
a separate intellectual and emotional
makeup". (SCC OnLine US SC para 21)

75. On a combined reading of C.R. v.
United Kingdom [C.R. v.United Kingdom,
ECHR, Ser. A. No. 335-C (1995): (1995)
21 EHRR 363] and Eisenstadt v. Baird
[Eisenstadt v. Baird, 1972 SCC OnLine US
SC 62: 31 L Ed 2d 349: 92 S Ct 1029: 405
US 438 (1972)] it is quite clear that a rapist
remains a rapist and marriage with the
victim does not convert him into a nonrapist. Similarly, a rape is a rape whether it
is described as such or is described as
penetrative sexual assault or aggravated
penetrative sexual assault. A rape that
actually occurs cannot legislatively be
simply wished away or legislatively denied
as non-existent.

76. There is an apparent conflict or
incongruity between the provisions of IPC
and the Pocso Act. The rape of a married
girl child (a girl child between 15 and 18
years of age) is not rape under IPC and
therefore not an offence in view of
Exception 2 to Section 375 IPC thereof but
it is an offence of aggravated penetrative
sexual assault under Section 5(n) of the
Pocso Act and punishable under Section 6
of that Act. This conflict or incongruity
needs to be resolved in the best interest of
the girl child and the provisions of various
complementary
statutes
need
to
be
harmonised and read purposively to present
an articulate whole.

79. There is no doubt that pro-child
statutes are intended to and do consider the
best interest of the child. These statutes
1 All. Pradeep Tomar & Anr. Vs. State of U.P. & Anr.
917
have been enacted in the recent past though
not effectively implemented. Given this
situation, we are of opinion that a few facts
need to be acknowledged and accepted:

79.1.Firstly, a child is and remains a
child regardless of the description or
nomenclature given to the child. It is
universally accepted in almost all relevant
statutes in our country that a child is a
person below 18 years of age. Therefore, a
child remains a child whether she is
described as a street child or a surrendered
child or an abandoned child or an adopted
child. Similarly, a child remains a child
whether she is a married child or an
unmarried child or a divorced child or a
separated child or a widowed child. At this
stage we are reminded of Shakespeare's
eternal view that a rose by any other name
would smell as sweet--so also with the
status of a child, despite any prefix.

79.2.Secondly, the age of consent for
sexual intercourse is definitively 18 years
and there is no dispute about this.
Therefore, under no circumstance can a
child below 18 years of age give consent,
express or implied, for sexual intercourse.
The
age of
consent has
not
been
specifically reduced by any statute and
unless there is such a specific reduction, we
must proceed on the basis that the age of
consent
and
willingness
to
sexual
intercourse remains at 18 years of age.

79.3.Thirdly, Exception 2 to Section
375 IPC creates an artificial distinction
between a married girl child and an
unmarried girl child with no real rationale
and thereby does away with consent for
sexual intercourse by a husband with his
wife who is a girl child between 15 and 18
years of age. Such an unnecessary and
artificial distinction if accepted can again
be introduced for other occasions for
divorced children or separated children or
widowed children.

80. What is sought to be achieved by
this artificial distinction is not at all clear
except perhaps to acknowledge that child
marriages are taking place in the country.
Such child marriages certainly cannot be in
the best interest of the girl child. That the
solemnisation of a child marriage violates
the provisions of the PCMA is well known.
Therefore, it is for the State to effectively
implement and enforce the law rather than
dilute it by creating artificial distinctions.
Can it not be said, in a sense, that through
the artificial distinction, Exception 2 to
Section 375 IPC encourages violation of
the PCMA? Perhaps "yes" and looked at
from another point of view, perhaps "no"
for it cannot reasonably be argued that one
statute (IPC) condones an offence under
another statute (the PCMA). Therefore the
basic question remains--what exactly is the
artificial distinction intended to achieve?

Justification given by the Union of
India

81. The only justification for this
artificial distinction has been culled out by
the learned counsel for the petitioner from
the counter-affidavit filed by the Union of
India. This is given in the written
submissions filed by the learned counsel
for the petitioner and the justification (not
verbatim) reads as follows:

(i)
Economic
and
educational
development in the country is still uneven
and child marriages are still taking place. It
has been, therefore, decided to retain the
age of 15 years under Exception 2 of
Section 375 IPC so as to give protection to
husband and wife against criminalising the
sexual activity between them.

(ii) As per National Family Health
Survey-III, 46% of women between the
ages 18-29 years in India were married
before the age of 18. It is also estimated
that there are 23 million child brides in the
country.
Hence,
criminalising
the
918 INDIAN LAW REPORTS ALLAHABAD SERIES
consummation of a marriage union with a
serious offence such as rape would not be
appropriate and practical.

(iii) Providing punishment for child
marriage with consent does not appear to
be appropriate in view of socio-economic
conditions of the country. Thus, the age
prescribed in Exception 2 of Section 375
IPC has been retained considering the basic
facts of the still evolving social norms and
issues.

(iv)
The
Law Commission
also
recommended for raising the age from 15
years to 16 years and it was incorporated in
the Criminal Law (Amendment) Ordinance,
2013.
However,
after
wide
ranging
consultations with various stakeholders it
was further decided to retain the age at 15
years.

(v) Exception 2 of Section 375 IPC
envisages that if the marriage is solemnised
at the age of 15 years due to traditions, it
should not be a reason to book the husband
in the case of offence of rape under IPC.

(vi) It is also necessary that the
provisions of law should be in such a
manner that it cannot affect a particular
class of society. Retaining the age of 15
years in Exception 2 of Section 375 IPC
has been provided considering the social
realities of the nation.

82. The above justifications given by
the Union of India are really explanations
for inserting Exception 2 in Section 375
IPC. Besides, they completely sidetrack the
issue and overlook the provisions of the
PCMA, the provisions of the JJ Act as well
as the provisions of the Pocso Act. Surely,
the Union of India cannot be oblivious to
the existence of the trauma faced by a girl
child who is married between 15 and 18
years of age or to the three pro-child
statutes and other human rights obligations.
That these facts and statutes have been
overlooked confirms that the distinction is
artificial and makes Exception 2 to Section
375 IPC all the more arbitrary and
discriminatory.

83.
During
the
course
of
oral
submissions,
three
further
but
more
substantive justifications were given by the
learned counsel for the Union of India for
making
this
distinction.
The
firstjustification is that by virtue of getting
married, the girl child has consented to
sexual intercourse with her husband either
expressly or by necessary implication. The
second justification is that traditionally
child marriages have been performed in
different parts of the country and therefore
such traditions must be respected and not
destroyed. The third justification is that
Para 5.9.1 of the 167th Report of the
Parliamentary Standing Committee of the
Rajya Sabha (presented in March 2013)
records that several Members felt that
marital rape has the potential of destroying
the institution of marriage.

84. In law, it is difficult to accept any
one of these justifications. There is no
question of a girl child giving express or
implied consent for sexual intercourse. The
age of consent is statutorily and definitively
fixed at 18 years and there is no law that
provides for any specific deviation from
this. Therefore unless Parliament gives any
specific indication (and it has not given any
such indication) that the age of consent
could be deviated from for any rational
reason, we cannot assume that a girl child
who is otherwise incapable of giving
consent
for
sexual
intercourse
has
nevertheless
given
such
consent
by
implication, necessary or otherwise only by
virtue of being married. It would be reading
too much into the mind of the girl child and
assuming a state of affairs for which there
is neither any specific indication nor any
warrant. It must be remembered that those
days are long gone when a married woman
1 All. Pradeep Tomar & Anr. Vs. State of U.P. & Anr.
919
or a married girl child could be treated as
subordinate to her husband or at his beck
and call or as his property. Constitutionally
a female has equal rights as a male and no
statute should be interpreted or understood
to derogate from this position. If there is
some theory that propounds such an
unconstitutional myth, then that theory
deserves to be completely demolished.

85. Merely because child marriages
have been performed in different parts of
the country as a part of a tradition or
custom does not necessarily mean that the
tradition is an acceptable one nor should it
be sanctified as such. Times change and
what was acceptable a few decades ago
may not necessarily be acceptable today.
This was noted by a Constitution Bench of
this Court (though in a different context) in
State of M.P. v. Bhopal Sugar Industries
Ltd. [State of M.P. v. Bhopal Sugar
Industries Ltd., (1964) 6 SCR 846: AIR
1964 SC 1179] that: (AIR p. 1182, para 6)

"6. ... But, by the passage of time,
considerations of necessity and expediency
would be obliterated, and the grounds
which
justified
classification
of
geographical regions for historical reasons
may cease to be valid."

90. We must not and cannot forget the
existence of Article 21 of the Constitution
which gives a fundamental right to a girl
child to live a life of dignity. The
documentary material placed before us
clearly suggests that an early marriage
takes away the self-esteem and confidence
of a girl child and subjects her, in a sense,
to sexual abuse. Under no circumstances
can it be said that such a girl child lives a
life of dignity. The right of a girl child to
maintain her bodily integrity is effectively
destroyed
by
a
traditional
practice
sanctified by IPC. Her husband, for the
purposes of Section 375 IPC, effectively
has full control over her body and can
subject her to sexual intercourse without
her consent or without her willingness
since such an activity would not be rape.
Anomalously, although her husband can
rape her but he cannot molest her for if he
does so he could be punished under the
provisions of IPC. This was recognised by
LCI in its 172nd Report but was not
commented upon. It appears therefore that
different and irrational standards have been
laid down for the treatment of the girl child
by her husband and it is necessary to
harmonise the provisions of various statutes
and also harmonise different provisions of
IPC inter se.

91. We have also adverted to the issue
of reproductive choices that are severely
curtailed as far as a married girl child is
concerned. There is every possibility that
being subjected to sexual intercourse, the
girl child might become pregnant and
would have to deliver a baby even though
her body is not quite ready for procreation.
The documentary material shown to us
indicates that there are greater chances of a
girl child dying during childbirth and there
are greater chances of neonatal deaths. The
results adverted to in the material also
suggest that children born from early
marriages
are
more
likely
to
be
malnourished. In the face of this material,
would it be wise to continue with a
practice, traditional though it might be, that
puts the life of a girl child in danger and
also puts the life of the baby of a girl child
born from an early marriage at stake? Apart
from
constitutional
and
statutory
provisions, constitutional morality forbids
us from giving an interpretation to
Exception 2 to Section 375 IPC that
sanctifies a tradition or custom that is no
longer sustainable.

Harmonious
and
purposive
interpretation
920 INDIAN LAW REPORTS ALLAHABAD SERIES

101.
The
entire
issue
of
the
interpretation of the JJ Act, thePocso Act,
the PCMA and Exception 2 to Section 375
IPC can be looked at from yet another
perspective, the perspective of purposive
and harmonious construction of statutes
relating to the same subject-matter. Long
ago, it was said by Lord Denning that when
a defect appears, a Judge cannot fold his
hands and blame the draftsman but must
also consider the social conditions and give
force and life to the intention of the
legislature. It was said inSeaford Court
Estates Ltd. v. Asher [Seaford Court
Estates Ltd. v.Asher, (1949) 2 KB 481
(CA) affirmed in Asher v. Seaford Court
Estates Ltd., 1950 AC 508 (HL)] that: (KB
p. 499)

"... A Judge, believing himself to be
fettered by the supposed rule that he must
look to the language and nothing else,
laments that the draftsmen have not
provided for this or that, or have been
guilty of some or other ambiguity. It would
certainly save the Judges trouble if Acts of
Parliament
were
drafted
with
divine
prescience and perfect clarity. In the
absence of it, when a defect appears a
Judge cannot simply fold his hands and
blame the draftsman. He must set to work
on the constructive task of finding the
intention of Parliament, and he must do this
not only from the language of the statute,
but also from a consideration of the social
conditions which gave rise to it, and of the
mischief which it was passed to remedy,
and then he must supplement the written
word so as to give "force and life" to the
intention of the legislature."

105. Viewed from any perspective,
there seems to be no reason to arbitrarily
discriminate against a girl child who is
married between 15 and 18 years of age.
On the contrary, there is every reason to
give
a
harmonious
and
purposive
construction to the pro-child statutes to
preserve and protect the human rights of
the married girl child.

Implementation of laws

106. The Preamble to our Constitution
brings out our commitment to social
justice, but unfortunately, this petition
clearly brings out that social justice laws
are not implemented in the spirit in which
they are enacted by Parliament. Young girls
are married in thousands in the country,
and as Section 13 of the PCMA indicates,
there is an auspicious day -- Akshaya
Trutiya -- when mass child marriages are
performed. Such young girls are subjected
to sexual intercourse regardless of their
health, their ability to bear children and
other
adverse
social,
economic
and
psychological consequences. Civil society
can do just so much for preventing such
child marriages but eventually it is for the
Government of India and the State
Governments to take proactive steps to
prevent child marriages so that young girls
in our country can aspire to a better and
healthier life. We hope the State realises
and appreciates this.

Conclusion

107. On a complete assessment of the
law and the documentary material, it
appears that there are really five options
before us: (i) To let the incongruity remain
as it is -- this does not seem a viable option
to us, given that the lives of thousands of
young girls are at stake; (ii) To strike down
as unconstitutional Exception 2 to Section
375 IPC -- in the present case this is also
not a viable option since this relief was
given up and no such issue was raised; (iii)
To reduce the age of consent from 18 years
to 15 years -- this too is not a viable option
and would ultimately be for Parliament to
decide; (iv) To bring the Pocso Act in
consonance with Exception 2 to Section
375 IPC -- this is also not a viable option
1 All. Pradeep Tomar & Anr. Vs. State of U.P. & Anr.
921
since it would require not only a retrograde
amendment to the Pocso Act but also to
several other pro-child statutes; (v) To read
Exception 2 to Section 375 IPC in a
purposive manner to make it in consonance
with the Pocso Act, the spirit of other prochild legislations and the human rights of a
married girl child. Being purposive and
harmonious constructionists, we are of
opinion that this is the only pragmatic
option available. Therefore, we are left
with absolutely no other option but to
harmonise the system of laws relating to
children and require Exception 2 to Section
375 IPC to now be meaningfully read as:
"Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under
eighteen years of age, is not rape." It is only
through this reading that the intent of social
justice to the married girl child and the
constitutional vision of the Framers of our
Constitution can be preserved and protected
and perhaps given impetus."

10. So far as the age of the
prosecutrix is concerned, in the face of the
High School Certificate, there is no cavil
that evidence about her being a major,
which is her stand, cannot be accepted. She
cannot be referred to medical examination
for determination of her age, so long as her
date of birth founded on her High School
Certificate, is available. This certificate
clearly indicates that she is a minor. There,
her date of birth is 04.11.2004. Section 94
of the Juvenile Justice (Care and Protection
of Children) Act, 2015 makes the following
provision
regarding
presumption
and
determination of age:

"94. Presumption and determination
of age.- (1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as
nearly as may be and proceed with the
inquiry under section 14 or section 36, as
the case may be, without waiting for further
confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake the process of age determination,
by seeking evidence by obtaining -

(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i) and
(ii) above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:

Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.

(3)
The
age
recorded
by
the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person."

11. The provisions of Section 94 (2)
of the Act, which are designed to determine
the age of a juvenile, have been extended to
the victim in Jarnail Singh v. State of
Haryana; (2013) 7 SCC 263 and by a
Division Bench decision of this Court in
Smt.
Priyanka
Devi
through
her
922 INDIAN LAW REPORTS ALLAHABAD SERIES
husband vs. State of U.P. and others
2018 (1) ACR 1061, to which I was a
party. It has been held in Smt. Priyanka
Devi thus:

"13. Learned counsel for the petitioner
lastly urged that provisions of Section 94 of
the Juvenile Justice Act, 2015 do not apply
to the case in hand as the same are
available for the purposes of determination
of age for a juvenile or a child in conflict
with the law but would not apply to the
determination of age in the case of a victim.

14. We are afraid that the aforesaid
submission is not correct. The issue was
examined by the Supreme Court in the case
of Mahadeo S/o Kerba Maske v. State of
Maharashtra and Another; (2013) 14 SCC
637 where in paragraph no. 12 of the report
it was held as under:

"Under rule 12(3)(b), it is specifically
provided that only in the absence of
alternative methods described under Rule
12(3)(a)(i) to (iii), the medical opinion can
be sought for. In the light of such a
statutory rule prevailing for ascertainment
of the age of the juvenile in our considered
opinion, the same yardstick can be rightly
followed by the courts for the purpose of
the ascertaining the age of a victim as
well." (Emphasis supplied)

15.
This
issue
has
also
been
considered in an earlier judgment of the
Supreme Court in Jarnail Singh v. State of
Haryana; 2013 (7) SCC 263, where too it
has been held that rule 12(3) of the Juvenile
Justice (Care and Protection of Children)
Rules, 2007 must apply both to a child in
conflict with law as well as to a victim of a
crime. Paragraph 23 of the said report reads
thus:

"Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime.
Therefore,
in
our
considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VWPW6. The manner of determining age
conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child is
ascertained, by adopting the first available
basis, out of a number of options postulated
in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in
a preceding clause, it has overriding effect
over an option expressed in a subsequent
clause. The highest rated option available,
would conclusively determine the age of a
minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of
the concerned child, is the highest rated
option. In case, the said certificate is
available, no other evidence can be relied
upon. Only in the absence of the said
certificate,
Rule
12(3),
envisages
consideration of the date of birth entered, in
the school first attended by the child. In
case such an entry of date of birth is
available, the date of birth depicted therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
1 All. Pradeep Tomar & Anr. Vs. State of U.P. & Anr.
923
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion."

16. Thus, principles applicable to the
determination of age in the case of a
juvenile would in terms apply to cases of
determination of the age of a victim as
well. It may be pointed out that at the point
of time when Mahadeo (supra) was decided
by their lordships of the Supreme Court,
the Juvenile Justice Act, 2000 was in force
and their lordships were interpreting the
provision of Rule 12(3) of the Juvenile
Justice (Care and Protection of Child)
Rules, 2007. The said Act of 2000 has
since been repealed and has been replaced
by the Juvenile Justice Act, 2015. The rules
framed under the Act of 2000 are thus no
longer on the statute book. However, the
provisions that found place in Rule 12(3) of
the Juvenile Justice (Care and Protection of
Child) Rules, 2007 framed under the
Juvenile Justice Act, 2000 are now, with
certain modifications engrafted into the the
Principal Act vide section 94 of the
Juvenile Justice Act, 2015. The inter se
priority of criteria to determine age under
Rule 12(3) of the Rules, 2007 (supra) and
section 94 of the Act, 2015 remains the
same albeit with certain modifications
which are of no consequences to the facts
in hand. In short, provisions of Rule 12(3)
of the Rules, 2007 framed under the
Juvenile Justice Act, 2000 are para meteria
to the provision of Section 94 of the
Juvenile Justice Act, 2015. This being the
comparative position, the principles of law
laid down by their lordships in the case of
Mahadeo (supra) would apply with equal
force to the provisions of section 94(2) of
the Juvenile Justice Act, 2015 while
determining the age of a victim of an
offence under Sections 363 and 366 IPC.
Thus, the submission of the learned counsel
for the petitioners, on this score, is not
tenable."

12. The provisions of Section 94(2)
makes it vivid that in the face of a date of
birth certificate from the school or the
matriculation or equivalent certificate from
the concerned examination Board, the other
evidence about the age of a victim cannot
be looked into. If the date of birth
certificate as envisaged in clause (i) of subSection (2) of Section 94 of the Act is not
available, the birth certificate given by a
corporation or a municipal authority or a
panchayat is the next evidence to be
considered in the rung. It is only when the
evidence about age envisaged under clauses
(i) and (ii) of Sub-Section (2) of Section 94
of the Act is not available, that a victim can
be referred to a medico-legal examination
for the determination of her age. Therefore,
even if it is the prosecutrix's stand, which
this Court assumes to be so that she is 18
years old, and has married Pintoo of her
free will, she cannot be regarded as a major
or permitted to prove herself a major, by
asking herself to be referred to medical
examination by a Board of Doctors, so long
as her High School Certificate is clear on
the point. After the decision of their
Lordships of the Supreme Court in Suhani
vs. State of U.P., 2018 SCC Online SC
781, there was some confusion whether a
victim could be referred to the medical
examination of a Board of Doctors for
determination of her age, in the face of a
recorded date of birth in the High School
certificate. But, after the decision of a
Division Bench of this Court in Smt. Nisha
Naaz alias Anuradha and another vs.
State of U.P. and others 2019 (2) ACR
2075 holding that the decision in Suhani
does not lay down any law but is a decision
on facts, the principles in Smt. Priyanka
Devi, following the decision in Jarnail
924 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh, is law that would govern the fate of
this case. In Smt. Nisha Naaz alias
Anuradha, it was held:

"14.