# Shaheen Parveen & Anr v. The State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 815
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015
- **Case number:** Misc. Bench No. 3519 of 2015
- **Bench:** Ajai Lamba, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shaheen-parveen-anr-v-the-state-of-u-p-ors-43198
- **Pages:** 7

## Headnote

Constitution
of
India-Art.
226-FIR
Quashing-offence under section 361, 363
and 366 IPC-prosecutrix carrying 7
month pregnancy- in statements under
section 164 Cr.P.C.-stated to join the
company on her own-victim may be
below that 17 years-if separated-unborn
child shall ultimately be sufferer-when
main prosecution witness not supporting
prosecution's
allegations-no
better
evidence could be to continue the further
proceeding-held-amounts to abuse the
process of Court-quashed.
Held: Para-29
The stand of the Prosecuting Agency that
the victim was a few months below age of
majority when she joined the company of
the accused/petitioner No.2, and therefore
offence has been committed, cannot be
accepted if ground reality is taken into
account. It has come on record that the
prosecutrix is an expecting mother and is
carrying a pregnancy of 31 weeks. Coupled
with this fact is the statement of the
prosecutrix wherein she has said that she
was neither kidnapped nor abducted, rather
has been living with petitioner No.2 as his
wife. It is the prosecutrix who went in the
company
of
the
accused,
willingly,
knowingly, and rather than the accused
taking the prosecutrix out of the custody of
the lawful guardian; the victim herself had
eloped
with
petitioner
No.2.
In
the
considered opinion of the Court, substantial
justice cannot be sacrificed at the altar of
technicality, as is being concluded by the
Investigating Agency.

## Text

2 All] Shaheen Parveen & Anr. Vs. The State of U.P. & Ors.
815
application for amendment shall be allowed
after the trial has commenced unless the
court comes to conclusion that in spite of due
diligence the party could not have raised the
matter before the commencement of the trial.
Moreover, there is no explanation in the
application for amendment as to why it could
not be brought on record at the first instance
and why there was such a long delay. In the
circumstances narrated above, the case laws
relied upon by the respondents are of no help
to them.
19.
In veiw of the legal proposition
enunciated in Ram Roop Vs. The Deputy
Director
of
Consolidation
[2002(20)
LCD192], Usha Balashaheb Swami and
others vs. Kiran Appaso Swami and others
(2007)5 SCC 602 and Gautam Sarup vs.
Leela Jetly and others (2008)7 SCC 85,
Revajeetu Builders and Developers vs.
Narayanaswamay and sons and others
(2009)10 SCC 84, it is imminently clear that
the facts, which were within the knowledge
of the plaintiff at the time of filing of original
plaint but were not pleaded in the original
plaint, cannot be permitted to be set up by
way of amendment.
20.
Having examined the instant
matter in the light of the aforesaid legal
proposition, it comes out that respondents no.
2 and 3 filed a suit claiming title by
succession and sought a declaration in this
regard. As averred above, earlier the matter
went up to the second appeal stage and was
sent back to the first appellate court for
deciding the appeal afresh. It may be noted
that the suit of respondent no. 2 had been
dismissed by the trial court. When the matter
was remanded, the private respondents no. 2
and
3
filed
an
application,
seeking
amendment in the suit by taking a plea of
adverse
possession
on
the
basis
of
observation made by this Court in the second
appeal. In my opinion, the learned Additional
District Judge, Court No. 1, Raebareli
committed an error in allowing the said
amendment, overlooking the fact that it had
changed the very nature of the suit by
claiming title on the basis of adverse
possession and abandoning the earlier plea of
title by succession.
21. For the reasons aforesaid, the
writ petition is allowed and the impugned
order
dated
24.03.2007
passed
by
Additional District Judge, Court No. 1,
Raebareli (opposite party no. 1) in Appeal
No. 36/80; Jagdamba Singh & another Vs.
Jung Bahadur Singh and another, is
hereby set aside. As the parties are
litigating since the year 1976 when the
regular suit was filed, the lower court is
directed to make an earnest endeavour to
conclude the proceedings by 31.12.2015.
The trial court is further directed not to
grant any adjournment at the drop of hat
and only genuine and in exceptional
circumstances, adjournment should be
permitted so that precious time of the
Court is not wasted and long pending
litigation comes to an end.
22. Costs easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ASHOK PAL SINGH, J.
Misc. Bench No. 3519 of 2015
Shaheen Parveen & Anr. ...Petitioners
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Omkar Singh
816
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Govt. Advocate
Constitution
of
India-Art.
226-FIR
Quashing-offence under section 361, 363
and 366 IPC-prosecutrix carrying 7
month pregnancy- in statements under
section 164 Cr.P.C.-stated to join the
company on her own-victim may be
below that 17 years-if separated-unborn
child shall ultimately be sufferer-when
main prosecution witness not supporting
prosecution's
allegations-no
better
evidence could be to continue the further
proceeding-held-amounts to abuse the
process of Court-quashed.
Held: Para-29
The stand of the Prosecuting Agency that
the victim was a few months below age of
majority when she joined the company of
the accused/petitioner No.2, and therefore
offence has been committed, cannot be
accepted if ground reality is taken into
account. It has come on record that the
prosecutrix is an expecting mother and is
carrying a pregnancy of 31 weeks. Coupled
with this fact is the statement of the
prosecutrix wherein she has said that she
was neither kidnapped nor abducted, rather
has been living with petitioner No.2 as his
wife. It is the prosecutrix who went in the
company
of
the
accused,
willingly,
knowingly, and rather than the accused
taking the prosecutrix out of the custody of
the lawful guardian; the victim herself had
eloped
with
petitioner
No.2.
In
the
considered opinion of the Court, substantial
justice cannot be sacrificed at the altar of
technicality, as is being concluded by the
Investigating Agency.
(Delivered by Hon'ble Ajai Lamba, J.)
1. Shaheen Parveen and Mohd. Sarfaraj
have approached this Court to seek a writ in
the nature of CERTIORARI to quash First
Information Report bearing Case Crime No.-
121 of 2014 under Sections 363/366 of the
Indian
Penal
Code,
Police
Station
Madiyawan, District Lucknow (Annexure-1).
2. Case set up by the petitioners is
that the petitioners having attained
marriageable age got married. Marriage,
however, is not being accepted by
respondent No.4 who happens to be the
mother of petitioner No.1. Under the
circumstances, aggrieved by the fact that
the petitioner No.1 got married of her own
accord, impugned criminal proceedings
have been initiated.
3. Short counter affidavit on behalf
of the Prosecuting Agency has been filed
today alongwith
medical examination
report of the victim/prosecutrix and also
the statement of prosecutrix recorded
under Section 164 Cr.P.C. on 8.5.2015,
which is taken on record.
4. In the short counter affidavit, it has
been stated that the prosecutrix/victim is
carrying a pregnancy of 31 weeks (Annexure
No.-SCA-2). In paragraph 4 of the affidavit,
it
has
been
admitted
that
the
prosecutrix/victim did not support the
prosecution case in her statement recorded
under Section 164 Cr.P.C. (Annexure No.-
SCA-3).
The
Investigating
Agency,
however, is concluding that offence has been
committed, on the ground that at the point in
time when the prosecutrix went in the
company of petitioner no.-2, she was less
than 18 years of age.
5. We have heard learned Counsel for
the petitioners, Sri Deep Kamal, learned
Counsel for respondent no.-4 and also the
learned Counsel for the Prosecuting Agency.
6. Petitioner no.-2 is accused of
committing an offence under Sections
363/366 of the Indian Penal Code.
7. Section 363 of the Indian Penal
Code inheres that whoever kidnaps any
2 All] Shaheen Parveen & Anr. Vs. The State of U.P. & Ors.
817
person from lawful guardianship shall be
punished in terms of sentence provided in
the provision.
8.
"Kidnapping
from
lawful
guardianship" has been defined under
Section 361 of the Indian Penal Code. The
provision when extracted reads as under:-
"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.
Explanation: - The words "lawful
guardian" in this section include any
person lawfully entrusted with the care or
custody of such minor or other person.
Exception: - This section does not
extend to the act of any person who in
good faith believes himself to be the
father of an illegitimate child, or who in
good faith believes himself to be entitled
to the lawful custody of such child, unless
such act is committed for an immoral or
unlawful purpose."
9. Section 366 of the Indian Penal
Code inheres that whoever kidnaps or
abducts any woman with intent that she
may be compelled, or knowing it to be
likely that she will be compelled to marry
any person against her will, or in order
that she may be forced or seduced to illicit
intercourse, shall be punished with a
sentence, as provided in the provision.
10. At the time of considering
whether on admitting the allegations
made in the F.I.R., offence has been
committed or not, the ingredients of the
offence are required to be considered, in
context of the evidence collected during
the course of investigation.
11. In the peculiar facts and
circumstances of this case, theCourt has
minutely examined the facts that have
emerged on investigation of the case.
12.
Documents placed collectively as
Annexure SCA-2 indicate that the victim has
been found to be above 18 years of age. The
document further makes it evident that the
victim is having pregnancy of 31 weeks
gestation on 7.5.2015. The document also
makes it clear that at the time of medical
examination, the victim gave the history in
the following words :
"The victim had gone last year with
the boy and got married in February, 2014
staying with husband and at present, she
is seven months pregnant."
13. Annexure SCA-3 is the
statement of the victim recorded under
Section 164 CrPC on 8.5.2015. When
translated, statement reads as under :
"I on 10.2.2014, of my own free will, without
coercion, left my house and went to Barabanki with
Sarfaraj and stayed there for one week. On
18.2.2014, I got married to Sarfaraj in a Maszid in
Sulemanpur, and also contracted a Court marriage.
My marriage has been solemnized with Sarfaraj of
my own free will. I want to live with him. I am eight
months pregnant. Therefore, I want to go with my
husband. My husband has fear of my family
members."
14.
The Investigating Agency is
concluding that at the point in time when the
victim left in the company of the accused,
she was a few months less than 18 years,
which is the relevant age mentioned in
818
 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 361 of the Indian Penal Code, above
extracted. Clearly, the Investigating Agency
is taking a hypertechnical view of the issue.
The other relevant facts and circumstances of
the case are being ignored.
15. The issue whether the victim
was kidnapped or abducted is required to
be examined in context of the statement
of the prosecutrix recorded under Section
164 Cr.P.C.
16. If the statement of the
prosecutrix, above noted, is taken into
account,
it
becomes
evident
that
ingredients of the offence under Sections
363/366 of the Indian Penal Code in
regard
to
coercion,
kidnapping
or
abduction
allegedly
committed
by
Sarfaraj, are not satisfied. The provisions
of Section 363 of the Indian Penal Code
are required to be considered in context of
provisions of Section 361 of the Indian
Penal Code. So as to satisfy the
ingredients of Section 361 of the Indian
Penal Code, it has to be established by the
prosecuting
agency
that
the
accused/sarfaraj took or enticed the
prosecutrix out of the keeping of the
lawful guardian of the prosecutrix,
without
the
consent
of
the
guardian/respondent no. 4. In the case in
hand, it is the case of the prosecutrix
herself that she of her free will went with
Sarfaraj, lived with him, wants to live
with him and is expecting his child.
Element of coercion and enticement by
Sarfaraj is absent, although consent of the
guardian had not been taken.
17. The writ court, being a court of
equity, must take into consideration all
relevant factors brought before it to
deliver substantial justice. Equity justifies
bending the rules, where fair play is not
violated,
with
a
view
to promote
substantial justice. A writ court cannot
contemplate any limitation on its power to
deliver substantial justice. It has to be
ensured that a consumer of justice gets
complete justice, instead of going into the
nicety of law. Under the circumstances,
the court cannot be a mere onlooker if
injustice is likely to be caused.
18.

Petitioner
No.1
the
victim/prosecutrix would be the best
witness, rather the only witness of
commission of offence under Sections
363/366 I.P.C. Surely, the victim will not
support the prosecution case, as has been
made evident by her in her statement,
recorded in the course of investigation
under Section 164 Cr.P.C., and therefore
the trial would result in acquittal. During
course of trial, considerable number of
man
hours
would
be
wasted
in
prosecution/ defending and judging the
case. No useful purpose would be served
and the entire exercise of trial would be in
futility because the victim has declared
that she was not victimised or kidnapped.
19. The facts that have emerged
from the record make it evident that the
impugned criminal proceedings have been
initiated
because
mother
of
the
Prosecutrix/victim ( respondent no.-4) has
not accepted the marriage of her daughter
with petitioner No.2.
20. In case, despite the evidence that
has come on record, as noted above,
proceedings are not quashed, petitioner
no.-2 would be required to face criminal
charges and undergo the agony of a trial.
21. We have also taken into account
the fact that in case the petitioner No.2 is
allowed to be prosecuted, the matrimonial
2 All] Shaheen Parveen & Anr. Vs. The State of U.P. & Ors.
819
life of petitioner No.1/the alleged victim
would be disrupted. Her husband would
be incarcerated and there would be no one
to take care of her child, who is yet-to-beborn.
22. If a minor, of her own, abandons
the guardianship of her parents and joins a
boy without any role having been played
by the boy in her abandoning the
guardianship of her parents and without
her having been subjected to any kind of
pressure, inducement, etc and without any
offer or promise from the accused, no
offence punishable under Section 363
I.P.C. will be made out when the girl is
aged more than 17 years and is mature
enough to understand what she is doing.
Of course, if the accused induces or
allures the girl and that influences the
minor in leaving her guardian's custody
and the keeping and going with the
accused, then it would be difficult for the
Court to accept that minor had voluntarily
come to the accused. In case the victim/
prosecutrix willingly, of her own accord,
accompanies the boy, the law does not
cast a duty on the boy of taking her back
to her father's house or even of telling her
not to accompany him.
23. A girl who has attained the age of
discretion and was on the verge of attaining
majority and is capable of knowing what was
good and what was bad for her, cannot be
said to be a victim of inducement,
particularly when the case of the victim/girl
herself is that it was on her initiative and on
account of her voluntary act that she had
gone with the boy and got married to him. In
such circumstances, desire of the girl/victim
is required to be seen. Ingredients of Section
361 I.P.C. are required to be considered
accordingly, and not in mechanical or
technical interpretation.
24. Ingredients of Section 361 I.P.C.
cannot be said to be satisfied in a case
where the minor having attained age of
discretion, alleged to have been taken by
the accused person, left her guardian's
protection knowingly (having capacity to
know the full import of what she was
doing) and voluntarily joins the accused
person. In such a case, it cannot be said
that the victim had been taken away from
the keeping of her lawful guardian.
25. So as to show an act of
criminality on the part of the accused,
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, is required to be shown.
Conclusion might be different in case
evidence is collected by the investigating
agency
to
establish
that
though
immediately prior to the minor leaving the
guardian's protection, no active part was
played by the accused, he had at some
earlier stage solicited or persuaded the
minor to do so. ( The Court in above
regards takes a cue from the judgment
rendered by Hon'ble Supreme Court of
India reported in (1965)1 SCR 243 S.
Varadarajan versus State of Madras).
26. When the above noted situation is
considered in context of the facts and
circumstances of the present case, it would
become evident that the victim (petitioner
No.1) was a few months short of attaining
age of 18 years. The said petitioner had
attained age of discretion, however, not age
of majority. Petitioner No.1, the victim in
her statement recorded under Section 164
CrPC has clearly demonstrated that it was
she who went of her free will and accord on
10.2.2014 with Mohd. Sarfaraj, without any
coercion, and stayed with him, and got
820
 INDIAN LAW REPORTS ALLAHABAD SERIES
married to him willingly. It is a consensual
act on the part of petitioner No.1 all
through. Such clear stand of the victim
makes it evident that Mohd. Sarfaraj
respondent No.2 cannot be attributed with
coercing petitioner No.1, inducing petitioner
No.1 or kidnapping or abducting her in
commission of offence, as alleged. Surely, a
girl who has attained an age more than 17
years
and
who
is
already
carrying
pregnancy cannot be stated to have not
attained
age
of
discretion.
In
such
circumstances, a technicality in law would
not be attracted. The Court has not been
shown any material which would indicate
coercion, inducement or forceful act on the
part of Sarfaraj (petitioner No.2) so as to
conclude that offence has been committed
by him.
27. The writ Court considering
totality of fact and circumstances, cannot
ignore or disregard the welfare of the
petitioners, particularly when the exercise
of trial is going to be in futility, as
observed hereinabove.
28.
In view of the facts and
circumstances of the case noted above, the
Court is convinced that the impugned
proceedings have been initiated in abuse of
process of the Court and process of the law.
A personal grudge against marriage of choice
of the daughter is being settled by virtue of
initiating impugned criminal proceedings,
which would not be permissible in law. Such
prosecution would abrogate constitutional
right vested in the petitioners to get married
as per their discretion, particularly when
there is no evidence to indicate that the
marriage is void.
29. The stand of the Prosecuting
Agency that the victim was a few months
below age of majority when she joined
the company of the accused/petitioner
No.2, and therefore offence has been
committed, cannot be accepted if ground
reality is taken into account. It has come
on record that the prosecutrix is an
expecting mother and is carrying a
pregnancy of 31 weeks. Coupled with this
fact is the statement of the prosecutrix
wherein she has said that she was neither
kidnapped nor abducted, rather has been
living with petitioner No.2 as his wife. It
is the prosecutrix who went in the
company of the accused, willingly,
knowingly, and rather than the accused
taking the prosecutrix out of the custody
of the lawful guardian; the victim herself
had eloped with petitioner No.2. In the
considered
opinion
of
the
Court,
substantial justice cannot be sacrificed at
the altar of technicality, as is being
concluded by the Investigating Agency.
30. In view of above, petitioner No.2
cannot be said to have committed offence
either under Section 363 I.P.C. read with
Section 361 I.P.C. or under Section 366
I.P.C.
31. In the above noted facts and
circumstances, we are of the view that
ends of justice would be served if the
petition is allowed.
32. The writ petition is allowed.
Accordingly, First Information Report
lodged as Case Crime No.-121 of 2014
under Sections 363/366 of the Indian
Penal Code, Police Station Madiyawan,
District Lucknow and all consequent
proceedings are hereby quashed.
33. Let a copy of this order be
forwarded to Senior Superintendent of
Police, Lucknow.
--------
2 All] Swapnil Verma & Anr. Vs. Principal Judge, Family Court, Lucknow
821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.07.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
W.P. No. 4019 of 2015 (M/S)
Swapnil Verma & Anr. ...Petitioners
Versus
Principal Judge, Family Court, Lucknow
...Opp. Party
Counsel for the Petitioners:
Ashish Bhatt , Anil Sharma and Desh Mitra
Anand
Counsel for the Opp. Party:
---
Hindu Marriage Act, 1956-Section-13(B)-
petitioner-seeking
-exemption
from
statutory period divorce petition on mutual
consent-Family Judge refused to pass any
order on merit ignoring statutory periodneither the Family Judge nor High Curt can
issue such direction-held-order passed by
Family Judge-justified.
Held: Para-15
It is clear from the judgments of the
Supreme Court reproduced herein above
that in curtailing the statutory period of six
months and granting a decree of divorce by
mutual consent, the Supreme Court has
exercised power under Article 142 of the
Constitution of India. This power is not
available to any other Court in the land,
including this Court. In Anil Kumar Jain v.
Maya Jain (supra), the Supreme Court has
clearly held, in no uncertain terms, that the
doctrine of irretrievable breakdown of
marriage is not available even to the High
Courts which do not have powers similar to
those exercised by the Supreme Court
under Article 142 of the Constitution of
India. Neither can the High Court, nor the
Civil Court, can pass orders before the
period
prescribed
under
the
relevant
provisions of the Act, or on grounds not
provided for in Section 13 and 13-B of the
statute. This principle of law has been
reiterated by the Supreme Court in Manish
Goel v. Rohini Goel (supra).
Case Law discussed:
1995 Supp. (4) SCC 411; AIR 1999 Andhra
Pradesh 91; AIR 2005 Madhya Pradesh 106;
AIR 2005 Delhi 365; (2009) 10 SCC 415;
(2010) 4 SCC 393
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1.
Heard learned counsel for the
petitioners and perused the record.
2.
According to the petitioners, their
marriage was solemnized on 17.6.2010 as
per Hindu rites and rituals at Madhuban
Marriage Hall Mohan Road, Lucknow and
after marriage, they lived together for
sometime and from the wedlock, a baby,
namely, Aaradhya, was born, who is at
present 5 years old. In the year 2012, due to
some quarrel, petitioner No.2-Anjali Verma
lodged an FIR against the petitioner No.1.-
Swapnil Verma, which was registered as
Case Crime No. 302/12 under Sections 498
IPC and 3/4 of the Dowry Prohibition Act at
police station Sikanderpur district Ballia and
since then, petitioners are living separately.
3. It has been stated by the
petitioners that since they did not
cohabitated so long and further it is
impossible for them to live together,
therefore, they decided to enter into
compromise to take divorce by mutual
consent and filed a petition before the
competent court. In these backgrounds, on
2.7.2015, petitioners have filed a suit for
mutual divorce under Section 13 (B) of
the Hindu Marriage Act, 1955 before the
Principal Judge, Family Court, Lucknow,