# Smt. Sonam Pandey and others v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-27
- **Bench:** Rakesh Tiwari, Vijay Prakash Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sonam-pandey-and-others-v-state-of-u-p-and-others-42066
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226Quashing of FIR-offence under Section
363, 366 IPC-Petitioners are major living
as husband-wife-petition disposed of
with direction-no arrest till submission
of charge sheet U/S 173.

Held: Para 10

The law has to extend protection in the
manner and no harm befalls due to
wrath of the parents who have either
married in their own caste or out side
the caste. Now the society has changed
with the need and time. It is accepting
not only inter-caste marriage but also
live-in-relationship. FIRs. are being used
as weapon by the parents to satisfy their
ego and provide show case in the society
that
they
do
not
accept
such
3 All] Smt. Sonam Pandey and others V. State of U.P. and others
1207
relationship. This does not appear to be
fair as on becoming major a boy or girl is
entitled to marry.
Case law discussed:
(2010) 10 SC-469; 2006, ALD (CRI)-2-230

## Text

1206 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
record even reasons, as expression of
reasons in support of the cognizance may
result in causing prejudice to the rights of
the parties (complainant or accused) and
may also in due course result in
prejudicing the trial. However, the order
of the Magistrate must reflect that he has
applied his mind to the facts of the case.
In other words at the stage of taking
cognizance what is required from the
Magistrate is to apply his mind to the
facts of the case including the evidence
collected during the investigation and to
see whether or not there is sufficient
ground (prima facie case) to proceed with
the case. The law does not require the
Magistrate to record reasons for taking
cognizance of an offence.

9. I have perused the impugned
order. The learned Magistrate was of the
view
that
the
statements
of
the
complainant and witnesses were not
recorded correctly. He has referred to
various documents in the impugned order
on which basis the summoning order has
been passed and those documents were
filed along with the protest petition,
therefore, the summoning order was
passed on the basis of extraneous
materials not forming part of the case
diary. As such it can not be upheld. The
proper course for the Magistrate was to
see as to whether the materials collected
during the investigation had made out any
case against the petitioners or not. If the
materials so collected had not made out
any case against the accused and were
sufficient to proceed with the matter, the
proper course for the Magistrate was to
treat the protest petition as complaint and
proceed therewith under Chapter XV of
the Code. The summoning order, which is
based on extraneous materials filed along
with the protest petition and having no
support from the materials collected
during the investigation, can not be
sustained.

10. The petition is allowed. The
impugned
order
is
quashed.
The
Magistrate is directed to reconsider the
matter in accordance with law.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2011

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE VIJAY PRAKASH PATHAK,J.

Criminal Misc. Writ Petition No. - 18290 of 2011

Smt. Sonam Pandey and others

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Gaurav Kumar Shukla

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Quashing of FIR-offence under Section
363, 366 IPC-Petitioners are major living
as husband-wife-petition disposed of
with direction-no arrest till submission
of charge sheet U/S 173.

Held: Para 10

The law has to extend protection in the
manner and no harm befalls due to
wrath of the parents who have either
married in their own caste or out side
the caste. Now the society has changed
with the need and time. It is accepting
not only inter-caste marriage but also
live-in-relationship. FIRs. are being used
as weapon by the parents to satisfy their
ego and provide show case in the society
that
they
do
not
accept
such
3 All] Smt. Sonam Pandey and others V. State of U.P. and others
1207
relationship. This does not appear to be
fair as on becoming major a boy or girl is
entitled to marry.
Case law discussed:
(2010) 10 SC-469; 2006, ALD (CRI)-2-230

(Delivered by Hon'ble Rakesh Tiwari,J.)

1. Heard counsel for the petitioners
and the learned AGA.

2. The petitioner nos. 1 and 2 claim
to be major and have married out of their
love and affection. Petitioner nos. 3 to 9
are relative and friends of petitioner no.2.
An FIR has been lodged under Sections
363 and 366 IPC which has been registered
as case crime no.689 of 2011, under
Sections 363 and 366 IPC, P.S. Govind
Nagar District Kanpur Nagar.

3. The petitioners have filed this writ
petition for quashing the FIR dated
10.9.2011, lodged by respondent no.4 in
case crime no.689 of 2011, under Sections
363 and 366 IPC P.S. Govind Nagar
District Kanpur Nagar and for issuance of
a mandamus directing respondent no.2 and
his subordinate officers neither to arrest the
petitioners nor harass them in pursuance of
the aforesaid FIR.

4. Petitioner no.1 Smt. Sonam
Pandey and petitioner no.2 Raghvendra
Mishra are present in Court and have been
identified by their counsel.

5. It is submitted by the learned
counsel for the petitioners that petitioner
no.1 has married with petitioner no.2 out of
her own free will and both are majors,
hence, the respondents may be directed not
to harass or take any coercive action in any
manner against the petitioners and also not
to interfere in the peaceful living of the
petitioners as husband and wife.

6. The Apex Court in the case of D.
Velusamy versus D. Patchaiammal (
2010) 10 SCC-469 has even recognized
live-in-relationship between a man and
woman in the nature of marriage.

7. In the case of Lata Singh versus
State of U.P. , 2006,ALD (CRI)-2-230 the
Apex Court has held that-

" if any boy or girl who is a major
undergoes inter-caste or inter religious
marriages with a woman or man, who is
major, the couple will not be harassed by
anyone nor subjected to threats or acts of
violence and anyone who gives such
threats or harasses or commits acts of
violence either himself or at his instigation,
is taken to task by instituting criminal
proceedings by the police against such
persons and further stern action is taken
against such persons as provided by law.
The Apex Court further held that the police
at all the concerned places should ensure
that neither the petitioner nor her husband
nor any relatives of the petitioners husband
are harassed or threatened nor any acts of
violence are committed against them. If
anybody is found doing so, he should be
proceeded against sternly in accordance
with law by the authorities concerned."

8. In Writ Petition No. 28455 of
2008, Smt. Priya and another Vs. State of
U.P. and others, the Court held that-

"A large number of such cases are
coming to High Court claiming protection
of life and liberty and praying for a
direction to the police authorities to protect
them from harassment under Article 226 of
the Constitution. The number of such cases
ranges from 3 to 20 cases per day. Most of
such cases are based on no basis. The
question is how many of the police force
1208 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
can be spared for protection of such
persons ? The law provides that if the girl
and the boy are major and after marriage
they are being harassed, they can take
recourse to procedure provided in law, i.e.,
they can move the S.S.P. of the district and
lodge complaint and let the police after
investigation submit its report, but it is
seen that in order to stall investigation they
directly approach the High Court seeking
protection from alleged harassment by
their parents and the police.

If such be the case the police is to be
brought in the dock but the High Court
cannot be treated as a Marriage Bureau
certifying the marriage and directing the
authorities not to investigate the F.I.Rs. or
the complaints filed by the parties by
directing "to keep their hand off" in the
garb
of
"claimed
harassment"
by
respondents.

----------------------------------------------
--------------------------------
If
the
petitioners are major, they can lead their
happy married life.

In such cases where parties are major
and have married with their own sweet will
but are being harassed, they should
approach the police authorities with proof
of their age and their statements. In case
there is no proof of age, then they may
approach the appropriate authority for
determination of their age on the basis of
medical examination. In any case, it is
expected of every citizen that he will
cooperate in investigation and not stall it
by directly coming to High Court.
Apprehension of harassment is not a cause
of action to provide protection to world at
large. Article 226 should be sparingly used
in appropriate rarest cases depending upon
the facts and circumstances of each case.

This Court is not inclined to interfere
in such matters in its extra ordinary
jurisdiction
under
Art.
226
of
the
Constitution at this stage."

9. Question of proof of age of the
petitioners who are married cannot be
examined by this Court as this is a question
of investigation and medical examination,
they have to approach the appropriate
authority for determination of their age.

10. There are two facets of the
society in the marriage of such boys and
girls who marry against wishes of their
parents. One facet is where the parents cut
off their relations from the young couple
and wash away their hands from such
happening of marriage as spectator, instead
of supporting the couple who do require
their moral support initially while entering
into the married life. The other facet is
where the parents are unable to accept the
idea that their child has grown and is major
and that he is entitled in law to marry a
spouse of his own choice. The parents in
such a case are so perturbed that as to how
the society will react that they not only
lodged an FIR against their own flesh and
blood who have married but sometimes
also take steps further to eliminate them in
the name of honour killing. The law has to
extend protection in the manner and no
harm befalls due to wrath of the parents
who have either married in their own caste
or out side the caste. Now the society has
changed with the need and time. It is
accepting not only inter-caste marriage but
also live-in-relationship. FIRs. are being
used as weapon by the parents to satisfy
their ego and provide show case in the
society that they do not accept such
relationship. This does not appear to be fair
as on becoming major a boy or girl is
entitled
to
marry.
3 All] Smt. Geeta V. State of U.P.
1209

11. We are living in free India and
are governed by the Constitution of India.
We are not living in those primitive days
where the head of the family used to rule
the
roost
and
the
marriages
were
performed according to his will. The Apex
Court in the case of B. Velusamy (supra)
has also taken note of the changed society
and has observed in paragraphs 34 and 35
of the judgment thus:-

" 34. In feudal society sexual
relationship between man and woman
outside marriage was totally taboo and
regarded with disgust and horror, as
depicted in Leo Tolstoy's novel Anna
Karenina,
Gustave
Flaubert's
novel
Madame Bovary and the novels of the
great Bengali writer Sharat Chandra
Chattopadhyaya.

35. However, Indian society is
changing, and this change has been
reflected and recognized by Parliament by
enacting the Protection of Women from
Domestic Violence Act, 2005.

Reference in this regard may also be
had to the love happened between Anar
Kali and Salim in Mugal era. We observe
with happiness that society has changed a
lot since those days.

12. In the facts and circumstances of
this case and for all the reasons stated
above, this petition is disposed of with
directions to the respondent authorities not
to take any coercive action against the
petitioners
Smt.
Sonam
Pandey,
Raghvendra Mishra, Vishnu Kant Mishra,
Smt. Urmila Devi, Puneet Awasthi, Swati
Awasthi, Atul Mishra, Manisha Mishra
and Akash Verma or arrest them till
submission of report under Section 173
Cr.P.C. in case crime no. 689 of 2011,
under Sections 363 and 366 IPC, P.S.
Govind Nagar District Kanpur Nagar.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Misc. Application No. 19614 of 2011
(U/S 482 CR.P.C)

Smt. Geeta

 ...Applicant
Versus
State of U.P.

 ...Opposite Party

Counsel for the Applicant:
Sri Anoop Trivedi

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure- Section 48application
seeking
direction
for
disposal-application
moved
under
section
204
(4)
for
dismissal
of
complaint on basis of compromise-apart
from failure of complainant to deposit
process fee-offence under Section 363,
366, 376 IPC-triable by Session CourtMagistrate has no option except to
comply the provision of Section 208
committing the case under Section 209
to the session Court-offence where the
Police can arrest without warrant no
steps required by the complainant under
rule 17 of general rule (Criminal)-no
order to pass appropriate order on such
application-can be issued.

Held: Para 12

Offences under sections 363, 366, 376
IPC are serious and heinous offences.
Trial of such a case is not dependent on
the mercy or fancy of the complainant.
The complainant, in such a case, cannot
be permitted to say that she does not
wish to proceed with the trial and the
complaint
be
dismissed.
A
heinous