# Smt. Saloni Yadav & Anr v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1007
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-11
- **Case number:** Criminal Misc. Writ Petition No. 7996 of 2023
- **Bench:** Vivek Kumar Birla, Rajendra Kumar -Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saloni-yadav-anr-v-state-of-u-p-ors-50820
- **Pages:** 7

## Headnote

A. Constitution of India, 1950-Article 226Indian Penal Code, 1860-Sections 363 &
366-petitioners are in live-in-relationship
-petitioner no. 1 (major girl) ran away
from her parent's custody and she filed
habeas corpus petition for the custody of
petitioner no. 2 (minor boy)-In the
present case, element of inducement is
there or not is yet to be investigated
particularly in the background of the
admitted facts of this case when nobody is
coming forward for recording statementeven the victim statement not recorded
u/s 161 or 164 Crpc-The act of abduction
has been done u/s 366 IPC or not is yet to
be
ascertained
by
the
Investigating
Agency.(Para 1 to 33)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

1 All. Smt. Saloni Yadav & Anr. Vs. State of U.P. & Ors.
1007
Narayan Singh, learned counsel who has
filed caveat.

33. List this case on the date fixed in
the notice.

34. All the respondents, if so advised,
may file counter affidavit during the said
period.

35. Considering the submissions
advanced by learned counsel for the
petitioner and taking note of the fact that
the amount awarded by the Prescribed
Authority as upheld in Appeal, has already
been deposited by the petitioner with the
respondent No. 1, the respondent No. 1 is
restrained from releasing the same in
favour of the respondent No. 2 to 5 without
leave of this Court.
----------
(2024) 1 ILRA 1007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAJENDRA KUMAR -IV, J.

Criminal Misc. Writ Petition No. 7996 of 2023

Smt. Saloni Yadav & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Monis

Counsel for the Respondents:
G.A., Sri Amar Bahadur Maurya, Sri Arvind
Singh, Sri Deepak Dubey, Dharmendra
Kumar Mishra, Sri Maan Singh, Sri Manoj
Kumar Kushwaha, Sri Sunil Kumar Kushwaha

A. Constitution of India, 1950-Article 226Indian Penal Code, 1860-Sections 363 &
366-petitioners are in live-in-relationship
-petitioner no. 1 (major girl) ran away
from her parent's custody and she filed
habeas corpus petition for the custody of
petitioner no. 2 (minor boy)-In the
present case, element of inducement is
there or not is yet to be investigated
particularly in the background of the
admitted facts of this case when nobody is
coming forward for recording statementeven the victim statement not recorded
u/s 161 or 164 Crpc-The act of abduction
has been done u/s 366 IPC or not is yet to
be
ascertained
by
the
Investigating
Agency.(Para 1 to 33)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Kiran Rawat & anr.. Vs St. of U.P. & ors.,
CMWP No. 3310 of 2023

2. D.Velusamy Vs D. Patchaiammal (2010) 10
SCC 469
3. Lata Singh Vs St. of U.P & anr. (2006) 5 SCC
475

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rajendra Kumar -IV, J.)

1. Supplementary affidavit sworn by
the petitioner no. 1 filed today is taken on
record.

2. Sri Deepak Dubey submits that he
has filed his Vakalatnama on behalf of the
informant in the office on 10.7.2023.

3. Heard Sri Mohd. Monis, learned
counsel for the petitioners, Sri Deepak
Dubey, learned counsel appearing for the
informant and Sri G.P. Singh, learned
A.G.A. appearing for the State respondents.

4. This writ petition has been filed
with the prayer to quash the First
Information
Report
dated
30.4.2023,
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
registered as Case Crime no. 131 of 2023,
under Sections 363, 366 IPC, P.S. Pipari,
District Kaushambi. Further prayer has
been made not to arrest the petitioner in the
aforesaid case.

5. Admitted case of the petitioners is
that
the
petitioners
are
live
in
relationship. The date of birth of the
victim is 1.1.2004 and thus, she is major
and aged about 19 years, whereas the date
of birth of the petitioner no. 2 is
15.3.2006 and therefore, he is minor and
is aged about 17 years.

6. Submission of learned counsel for
the petitioners is that the petitioner no. 1
is
major
and
has
left
her
house
voluntarily, therefore, no offence under
Section 363 IPC is made out, however,
admittedly the boy is minor.

7. During course of arguments it
transpired that the connected Habeas
Corpus Writ Petition No. 525 of 2023
(Ali Abbas and others vs. State of U.P.
and others) has been filed in respect of
petitioner no. 2-Ali Abbas, who is stated
to be in the custody of the brother and
other relatives of the victim-Saloni
Yadav. It is submitted that both the
petitioners were taken away by the family
members of Saloni Yadav, however, the
petitioner no. 1-Saloni Yadav, somehow
ran away from the spot but the petitioner
no. 2-Ali Abbas is still in their custody,
therefore, habeas corpus petition was
filed.

8. Per contra, learned counsel for
the informant submits that the offence
under Section 366 IPC is made out.
Whether it is a case of abduction, is yet to
be investigated and therefore, merely
because the girl is major and is in live in
relationship with a boy, who is admittedly a
minor i.e. below 18 years, it cannot be said
that the offence under Section 366 IPC is
not made out. He further submits that the
habeas corpus petition has been filed on
false grounds.

9. Learned A.G.A. has also opposed
the petition.

10. We have considered the rival
submissions and have perused the record.

11. Present petition has been filed on
the ground that the petitioner nos. 1 and 2
are in live-in relationship. The boypetitioner no. 2 is muslim. Live in
relationship i.e. "Zina" as per Muslim Law
has been considered by Lucknow Bench of
this Court in Criminal Misc. Writ Petition
No. 3310 of 2023 (Kiran Rawat and
another vs. State of U.P. and others) vide
order dated 28.4.2023 and it has been
noticed that in Muslim Law live in
relationship is not permitted. Relevant
paragraph 21 of the aforesaid judgment is
quoted as under:-

"21. However, in Muslim law no
recognition can be given to sex outside
marriage. "Zina" which has been defined as
any sexual intercourse except that between
husband
and
wife
includes
both
extramarital sex and premarital sex and is
often translated as fornication in English.
Such premarital sex is not permissible in
Islam.
In
fact
any
sexual,
lustful,
affectionate acts such as kissing, touching,
staring etc. are "Haram" in Islam before
marriage because these are considered parts
of "Zina" which may lead to actual "Zina"
itself. The punishment for such offence
according to Quran (chapter 24) is hundred
lashes for the unmarried male and female
who commit fornication together with the
1 All. Smt. Saloni Yadav & Anr. Vs. State of U.P. & Ors.
1009
punishment prescribed by the "Sunnah" for
the married male and female that is stoning
to death."

(emphasis supplied)

12. That apart in the case of D.
Velusamy vs. D. Patchaiammal 2010 (10)
SCC 469 the Hon'ble Apex Court rejected
the
claim
of
the
respondent
for
maintenance under Section 125 Cr.P.C. as
wife after holding that she had not married
the appellant, therefore, it cannot be said
that she was a divorced wife, therefore, she
was not entitled for maintenance and held
that a divorced wife is treated as a wife for
the purpose of Section 125 Cr.P.C. but if a
person
has
not
even
been
married
obviously that person could not be
divorced. Thereafter, the Hon'ble Apex
Court went on to consider the 'live-in
relationship' from the point of view of the
Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to
as the Act of 2005). While considering the
definition
of
'aggrieved
person'
as
provided under Section 2(a), Section 2(f)
and other relevant provisions in view of the
term used in Section 2(f) "or through a
relationship in the nature of marriage" it
was observed that certain conditions are to
be fulfilled and one of such condition was
that they must be of legal age to marry. In
this regard Section 2(a) and Section 2(f) of
Act of 2005 are quoted as under:-

"2(a) "aggrieved person" means
any woman who is, or has been, in a
domestic relationship with the respondent
and who alleges to have been subjected to
any act of domestic violence by the
respondent";

"2(f)
"domestic
relationship"
means a relationship between two persons
who live or have, at any point of time, lived
together in a shared household, when they
are related by consanguinity, marriage, or
through a relationship in the nature of
marriage, adoption or are family members
living together as a joint family"

13. After considering law of different
countries it was held that the 'relationship
in the nature of marriage' is akin to a
common law marriage. In this regard,
paragraphs 31, 32 and 33 of D. Velusamy
(supra) are quoted as under:-

"31. In our opinion a `relationship
in the nature of marriage' is akin to a
common law marriage. Common law
marriages require that although not being
formally married :-

(a)
The
couple
must
hold
themselves out to society as being akin to
spouses.

(b) They must be of legal age to
marry.

(c) They must be otherwise
qualified to enter into a legal marriage,
including being unmarried.

(d) They must have voluntarily
cohabited and held themselves out to the
world as being akin to spouses for a
significant period of time.

(see `Common Law Marriage' in
Wikipedia on Google) In our opinion a
`relationship in the nature of marriage'
under the 2005 Act must also fulfill the
above requirements, and in addition the
parties must have lived together in a
`shared household' as defined in Section
2(s) of the Act. Merely spending weekends
together or a one night stand would not
make it a `domestic relationship'.
1010 INDIAN LAW REPORTS ALLAHABAD SERIES

32. In our opinion not all live in
relationships
will
amount
to
a
relationship in the nature of marriag8e to
get the benefit of the Act of 2005. To get
such benefit the conditions mentioned by
us above must be satisfied, and this has to
be proved by evidence. If a man has a
`keep' whom he maintains financially and
uses mainly for sexual purpose and/or as
a servant it would not, in our opinion, be
a relationship in the nature of marriage'

33. No doubt the view we are
taking would exclude many women who
have had a live in relationship from the
benefit of the 2005 Act, but then it is not
for this Court to legislate or amend the
law. Parliament has used the expression
`relationship in the nature of marriage'
and not `live in relationship'. The Court
in the grab of interpretation cannot
change the language of the statute."

(emphasis supplied)

14. The abovequoted paragraphs
clearly reflects that the Hon'ble Apex
Court is of the opinion that 'relationship
in the nature of marriage' must satisfy
several conditions before it can be
covered under the provisions of the Act
of 2005. It was also noticed that 'live in
relationship' is not mentioned in the
aforesaid Act of 2005.

15. In this regard, it would be
relevant to refer to the definition of
'child' as given in The Protection of
Children from Sexual Offences Act, 2012
(hereinafter referred to as POCSO Act),
which is quoted as under:-

"2. Definitions - (1) In this Act,
unless the context otherwise requires-

(a) .....

(b) .....

(c) .....

(d) "child" means any person
below the age of eighteen years;"

(emphasis supplied)

16. According to the aforesaid
definition 'child' means a person below the
age of eighteen years. In other words, a
person below the age of 18 years is
considered to be a child. It is needless to
say that the POCSO Act is a gender neutral
Act and as such the definition of a child
would apply on a male as well as on female
person and if the male is below eighteen
years of age he will also be treated as a
child.

17. There can be no dispute that a
child cannot have live in relationship and
this would be an act not only immoral but
also illegal as by itself live in relationship
has not been given any protective umbrella
under any law of the land except that two
major persons have right to live their own
life and to that extent their personal liberty
is to be protected. However, it does not
mean that a person, who cannot have
protection under any law for having such
relationship because of being a child can
come forward to seek protection from any
criminal prosecution on the ground of such
relationship. In other words, an accused
who is below 18 years of age cannot seek
protection on the ground of live in
relationship with a major girl and thus
cannot seek quashing of the criminal
prosecution against him as his / her activity
is not permissible in law and is thus illegal.
In case, this is permitted, this would
amount to putting premium on an illegal
activity and thus would not be in the
1 All. Smt. Saloni Yadav & Anr. Vs. State of U.P. & Ors.
1011
interest of our society and we are not
inclined to put a seal of approval on such
legally impermissible activities.

18. The Hon'ble Apex Court in the
case of Lata Singh vs. State of U.P. and
another 2006 (5) SCC 475 has held that a
live in relationship between two consenting
adults of heterogenic sex does not amount
to any offence.

19. There is no law which prohibits
the live in relationship, which is a premarital sex in the present case. However, in
the present case the boy is not major or of
18 years of age and being a child cannot be
permitted to have such relationship.

20. In the case of Kiran Rawat
(supra) this Court has considered this
aspect of the matter. In paragraph 8 this
Court has observed as under:-

"8. The Supreme Court has
further observed in S. Khushboo Vs.
Kanniammal, 2010 (5) SCC 600 as follows:

"21. While it is true that the
mainstream view in our society is that
sexual contact should take place only
between marital partners, there is no
statutory offence that takes place when
adults willingly engage in sexual relations
outside the marital setting, with the
exception of adultery as defined under
section 497 I.P.C. At this juncture, we may
refer to the decision given by this court in
Lata Singh versus State of UP and Another
AIR 2006 Supreme Court 2522, wherein it
was observed that a live in relationship
between
two
consenting
adults
of
Heterogenic sex does not amount to any
offence (with the obvious exception of
adultery), even though it may be perceived
as immoral. A major girl is free to marry
anyone she likes or to live with anyone she
likes. In that case, the petitioner was a
woman who had married a man belonging
to another caste and had begun cohabitation
with him. The petitioner's brother had filed
a criminal complaint accusing her husband
of offences under section 366 and 368
I.P.C., thereby leading to commencement
of trial proceedings. This Court had
entertained the Writ petition and granted
relief while quashing the criminal trial.
Furthermore, the court had noted that no
offence was committed by any of the
accused and the whole criminal case in
question is an abuse of the process of the
court. .."

(emphasis supplied)

21. There are several conditions for
live in relationship to be treated as
relationship in the nature of marriage. In
any case, the person has to be major i.e. 18
years of age although he may not be of
marriageable age i.e. 21 years. Therefore,
this activity of live in relationship in the
present case, which is of an extremely short
duration cannot come in support of the case
of the petitioners. In any case, whether this
act of 'abduction', which is covered under
Section 366 IPC, by means of 'any
deceitful means induces' and is result of
inducement, is a matter of investigation and
at this stage it cannot be said that no
offence under Section 366 IPC is made out
taking shelter of, as in the present case, on
the ground of impermissible live in
relationship.

22. In view of the undisputed fact in
respect of age of the petitioner no. 2 and
categorical assertion that the petitioners are
living in relationship, we find that whether
any offence under Section 366 IPC is made
out or not is yet to be investigated. As per
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
learned A.G.A. till date no one has come
forward to cooperate in the investigation
and till date no statement of any person has
been recorded.

23. We have also considered the fact
that the petitioner no. 1-the alleged victimSaloni Yadav has come forward to file
supplementary affidavit stating therein that
the petitioner no. 1 is major and she had
gone with the petitioner no. 2 with her own
freewill and since both the petitioners were
living with each other but it is after filing of
the present petition on 13.5.2023 the
informant
side
had
kidnapped
the
petitioners from Prayagraj and took them to
their village i.e. Jalalpur Ghosi. It is also
stated that on 15.5.2023 the petitioner no.
1-the victim somehow ran away and
reached the place of father of the petitioner
no. 2 and narrated the entire story. In other
words, she has come forward to file the
affidavit against the prosecution case. The
offence and date of incident of the alleged
offence
is
27.4.2023
as
per
first
information report and it is merely within
15 days the petitioners were separated,
therefore, to say that they have having live
in relationship is not worth believe, which
is, at the best only 15 days long. In any
case, without going into that aspect of the
matter as it is not a case where protection
under any Act like Domestic Violence Act
or any other Act as discussed above is
being made, we find that no statement of
the victim under Section 161 and 164
Cr.P.C. have been recorded by the
Investigating Officer or by the court. It is
also pertinent to note that the petitioner no.
1
has
come
forward
to
file
this
supplementary affidavit when admittedly
she is in the company of the accused side.

24. Before we proceed further it
would be appropriate to take note of
Section 366 IPC, which is quoted as
under:-

"366. Kidnapping, abducting or
inducing
woman
to
compel
her
marriage, etc.- 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, or knowing it to be likely that
she will be forced or seduced to illicit
intercourse,
shall
be
punished
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine; and whoever, by
means of criminal intimidation as defined
in this Code or of abuse of authority or any
other method of compulsion, induces any
woman to go from any place with intent
that she may be, or knowing that it is likely
that she will be forced or seduced to illicit
intercourse with another person shall be
punishable as aforesaid."

(emphasis supplied)

25.

Section
366
IPC
includes
kidnapping as well as abduction. The term
kidnapping is defined in Section 359 IPC,
which provides that kidnapping is two kinds
(1) kidnapping from India and (2) kidnapping
from lawful guardianship. Section 361 IPC
defines kidnapping from lawful guardianship,
wherein age of a female is mentioned as 18
years. The definition of abduction is provided
under Section 362 IPC, which is quoted as
under:-

"362. Abduction.- Whoever by
force compels, or by any deceitful means
induces, any person to go from any place,
is said to abduct that person."

(emphasis supplied)
1 All. Shivani & Anr. Vs. State of U.P. & Anr.
1013

26. This definition includes the words
'by force compels' and the words 'or by
any deceitful means induce any person to
go from any place'.

27. The word 'inducement' has been
defined in Black's Law Dictionary as "The
act or process of enticing or persuading
another person to take a certain course of
action". The word 'induce' has been
defined as "to make or persuade somebody
to do something". In Legal Glossary the
word 'induce' has been defined as "to
inspire, call forth or bring about by
influence
or
stimulation"
and
word
'inducement' has been defined as "that
which induces; something attractive by
which a person is led on or persuaded to
action".

28. The element of inducement
certainly affects the understanding of a
person and persuade another person to take
a certain course of action like in the present
case running away from the house, living in
with a person, who is not major and is even
not 18 years of age.

29. In the background of the facts as
narrated above where no one is coming
forward and not even the victim to get the
statement recorded under Section 161
Cr.P.C. or under Section 164 Cr.P.C., at
this stage, it cannot be said that there is no
use of force, or in any case, inducement.

30. Therefore, at this stage, there is no
ground to be influenced by the argument
that there is no such use of force or there is
no element of inducement at this stage
when the girl is coming forward from the
company of the accused persons.

31. In the present case, element of
inducement is there or not is yet to be
investigated particularly in the background
of the admitted facts of this case when no
body is coming forward for recording
statement. Thus, act of abduction has been
done
and
consequently
offence
is
committed under Section 366 IPC or not is
yet to be ascertained by the investigating
agency.

32. In such view of the matter, we do
not find any good ground to grant any
indulgence in the present case on the
ground that the petitioners are in live in
relationship. We find that it is not a fit case
for exercising extraordinary jurisdiction
under Article 226 of the Constitution of
India.
----------
(2024) 1 ILRA 1013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 14348 of 2023

Shivani & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ajai Kumar Srivastava, Sri Mohammad
Salman

Counsel for the Respondents:
G.A.

A. Constitution of India,1950-Article 226Indian Penal Code, 1860-Sections 363,
366, 376 & Section 3⁄4 of POCSO Act-In the
Present
case,
Petitioner
prayed
for
custody of her minor wife-petitioners
solemnized their marriage at Arya SamajUpon lodging FIR, petitioner no. 2 (girl)
was kept in Rajkiya Bal grih since her
mother refused to take her custody-Since,