# State Of U.P v. Rahul Chaubey & Ors

- **Citation:** (2021) 5 ILRA 86
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-18
- **Case number:** Govt. Appeal No. 90 of 2021
- **Bench:** Bachchoo Lal, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-rahul-chaubey-ors-46989
- **Pages:** 9

## Headnote

(A) Practice & Procedure - It is a settled
legal position that in an appeal against acquittal
the appellate court should not interfere unless
there are compelling reasons to differ with the
finding of the trial court and not merely because
the other view is also possible. (Para 33)

The Court has placed reliance on the principle
of law that the scope of interference in an
appeal against acquittal is narrower, than an
appeal
against
conviction
because
presumption
of
innocence
gets
further
fortified by an order of acquittal and the
appellate court need not substitute its finding
unless there i substantial and compelling
reasons to differ with the findings of the trial
court, or where the finding if the trial court is
perverse or against the settled position of
law. (Para 28)

Government Appeal Rejected. (E-8)

List of Cases cited:-

## Text

86 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant and the appellant herself who
claims themselves to be nominee/heir of
the deceased.

18. We have made it clear earlier also
that she may pursue her remedies which
she wants for which this review is filed.
Even she may file a recall application, if so
advised, before the Family Court to modify
the decree.

19. The decree of divorce is set aside.
The judgment and decree be modified to
the aforesaid extent as we have already
allowed this appeal. Consequences to
follow. Hence, the judgment sought to be
modified is set aside.

20. The record is not before this
Court.

21. A copy of this order be be sent to
the court below.
----------
(2021)05ILR A86
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.03.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Govt. Appeal No. 90 of 2021

State Of U.P. ...Appellant
Versus
Rahul Chaubey & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

(A) Practice & Procedure - It is a settled
legal position that in an appeal against acquittal
the appellate court should not interfere unless
there are compelling reasons to differ with the
finding of the trial court and not merely because
the other view is also possible. (Para 33)

The Court has placed reliance on the principle
of law that the scope of interference in an
appeal against acquittal is narrower, than an
appeal
against
conviction
because
presumption
of
innocence
gets
further
fortified by an order of acquittal and the
appellate court need not substitute its finding
unless there i substantial and compelling
reasons to differ with the findings of the trial
court, or where the finding if the trial court is
perverse or against the settled position of
law. (Para 28)

Government Appeal Rejected. (E-8)

List of Cases cited:-

1. C. Antony Vs K.G. Raghavan Nair (2003) 1
SCC 1

2. Sirajuddin @ Siraj Vs St. of Karn. (1990) 4
SCC 375

3. St. of M.P. Vs Ramesh & anr. (2011) 4 SCC
786

4. Mrinal Das & ors. Vs St. of Tripura (2011) 9
SCC 488

5. Mahadeo Laxman Sarane & anr. Vs St.of
Mah. (2007) 12 SCC 71

6. Ramesh Babulal Doshi Vs The St. of Guj. AR
1996 SC 2035

7. Rohtash Vs St. of Har. (2012) 6 SCC 589

8. Sampat Babso Kale & anr. Vs St. of Mah.
(2019) 4 SCC 739

9. Mookklah & anr. Vs State, rep. by the
Inspector of Police, Tamil Nadu AIR 2013 SC
321

10. Ramesh & ors. Vs St. of Har. AIR 2016 SC
5554

11. Ram Kishan Singh Vs Harmit Kaur & anr.
AIR 1972 SC 468
5 All. State of U.P. Vs. Rahul Chaubey & Ors.
87
12. Bhajju @ Karan Singh Vs St. of M.P. (2012)
4 SCC 327

(Delivered by Hon'ble Bachchoo Lal, J.&
Hon'ble Sanjay Kumar Pachori, J.)

In Re:-Criminal Misc. (Leave to
Appeal) Application No. 90 of 2021,
under Section 378 (3) Cr.PC.

1. We have heard learned A.G.A and
have perused the leave application, the
grounds of appeal and the judgment of the
court below.

2. The application seeking the leave
to appeal against the common judgment
and order of acquittal dated 2.12.2020
passed by the Additional District and
Sessions Judge/Special Judge POCSO
Act1, 2012, Court no. 2, Varanasi in
Special Sessions Trial No 96 of 2014 (State
of UP. v. Rahul Chaube and 2 others),
under Sections 363, 366, 376A, 506, 342,
386 Indian Penal Code (in short 'I.P.C.')
and under sections 4, 16, 17 of the POCSO
Act, 2012 and Special Sessions Trial No.
67 of 2014 (State v. Sanjay Chaube), under
Sections 363, 366, 506, 342, 386 I.P.C. and
under Sections 16, 17 of the POCSO Act,
2012, arising out of case crime no. 173 of
2014,
Police
Station
Lanka,
District
Varanasi, has been filed on behalf of the
State (the appellant).

3. The accused-respondents Rahul
Chaube, Smt. Reeta Chaube and Shiv Dutt
Tiwari were sent for trial on the charges
under Sections 363, 366, 376A, 506, 342,
386 I.P.C. and under Sections 4, 16, 17 of
the POCSO Act. The accused Sanjay
Chaube died during the course of the trial,
as such, proceeding against him was abated
on 5.1.2018.

4. The first information report2
(Ex.Ka.-1) of the incident was lodged by
Kripa
Shankar
Singh
(PW1/informant/father of the victim) against the
accused-respondents and Sanjay Chaube
(since deceased) as case crime no. 173 of
2014 has been registered on 2.5.2014 under
Sections 363, 366 I.P.C. P.S. Lanka,
District Varanasi, by alleging that his
daughter/victim, whose date of birth is
5.7.1999, was residing at the residence of
his son-in-law (PW-3) and she is the
student of Ist year in Ambition Polytechnic
College, Parav, Varanasi; and accused
Rahul Chaube son of Sanjay Chaube,
resident of Parav, P.S. Ramnagar, District
Varanasi, who was also student of IIIrd
year in the said college, used to visit the
place of his daughter; on 27.3.2014 at about
8:00 a.m., accused Rahul Chaube, Sanjay
Chaube, Grand-father of Rahul Chaube and
mother
of
Rahul
Chaube
met
his
daughter/victim on her way to college and
enticed away the victim, by a tempo.

5. During the course of investigation,
the prosecutrix was recovered, on the
information given by her that she was
subjected to rape by the appellant Rahul
Chaube, an offence under Section 376A
IPC was added. Thereafter, the prosecutrix
was sent for medical examination, her
ossification test was conducted. Medical
examination
report
(Ex.Ka.-4)
and
pathology
report
(Ex.Ka.-5)
dated
11.06.2014 were prepared by Dr. Manju
Singh (PW-4). The statements of the
prosecutrix, her father (informant) and sonin-law of the informant (PW-3) were
recorded under section 161 Cr.PC., viginal
slides which were received from the
hospital
were
sent
to
FSL.
The
Investigating Officer collected the victim's
date of birth certificate, prepared a site plan
88 INDIAN LAW REPORTS ALLAHABAD SERIES
of the place of the incident and victim's
statement under Section 164 Cr.PC. was
recorded.

6. After concluding the investigating,
charge sheet (Ex.Ka.-9) was submitted
against Sanjay Chaube under Sections 363,
366, 506, 342, 386 I.P.C. and under
Sections 16, 17 of the POCSO Act, by PW7 S.I. Vinod Kumar Yadav. Another charge
sheet (Ex.Ka.-10) was also submitted by
the
investigating
officer
against
the
accused-respondents under Sections 363,
366, 376A 506, 342, 386 I.P.C. and under
Sections 4, 16, 17 of the POCSO Act.

7. The trial court framed the charges
against Rahul Chaube under Sections 363,
366, 376A, 506, 342, 386 I.P.C. and under
sections 4, 16, 17 of the POCSO Act, and
against Smt. Reeta Chaube, Sanjay Chaube
and Shiv Dutt Tiwari under Sections 363,
366, 506, 342, 386 read with Section 34
I.P.C. and under sections 16, 17 of the
POCSO Act.

8. In order to substantiate the
charges against the accused-respondents
the prosecution examined as many as 8
witnesses. P.W.-1 victim, P.W.-2 Kripa
Shankar Singh (Informant/father of the
victim), P.W.-3 Ashutosh Kumar Singh,
(son-in-law of the informant) an eyewitness of the incident, P.W.-4 Dr. Manju
Singh,
(who
conducted
medical
examination of the victim), P.W.-5
Virendra
Kumar
Singh
(Principal,
Saraswati Bal Vidhya Mandir High
School, Jamaniya Station, Ghazipur),
P.W-.6 CP Ram Pratap Yadav, (scribe) to
prove the registration of the FIR (Ex.Ka.-
7) and its G.D. Report (Ex.Ka.-8), P.W.-7
Vinod Kumar Yadav (IInd Investigating
officer3) and P.W.-8 Mohd. Alamgir (Ist
I.O.) were examined by the prosecution
to
prove
various
stages
of
the
investigation such as preparation of site
plan.

9. Out of aforesaid eight witnesses
examined from the side of prosecution
P.W.-1 victim, P.W.-2 Kripa Shankar
Singh and P.W.-3 Ashutosh Kumar Singh
are the witnesses of facts, they did not
support the prosecution case and declared
hostile by the prosecution.

10. Accused-respondents stated in
their statement under Section 313 Cr.PC.
that they have been falsely implicated by
the police. No witness was examined by
the defence.

11. The learned trial court, after
thorough examination of the evidence led
by the prosecution observed that as per
written complaint, it is stated that the
victim enticed away by the accusedrespondents on the way of college; no
place of incident was ascertained by the
informant, but in the Chik F.I.R., P.W-.6
CP Ram Pratap Yadav has mentioned the
place of incident Ganeshdham colony;
site plan proved by PW-8 S.I. Mohd.
Alamgir, who stated that he prepared the
site plan on instance of the informant,
inspite of that he admitted that the
informant (PW-1) was not eye-witness of
the incident.

12. The trial court found that alleged
the recovery of the victim on 7.6.2014 is
false because recovery memo of the victim
has not been prepared; PW-1 victim in her
statement under Section 164 Cr.PC. stated
that she returned on 26.5.2014 after one
and half month of the incident; whereas
PW-2 father of the victim stated that he
does not know from where the police
recovered his daughter on 7.6.2014.
5 All. State of U.P. Vs. Rahul Chaubey & Ors.
89

13. The trial court further found that
there is cutting and overwriting in transfer
leaving certificate (Ex.Ka.-6) at the place
of date of birth of the victim, as mentioned
5.7.1999. PW-1 victim stated that her
parents had written her age lower in school
in order to conceal her actual age. She was
18 years 6 months old at the time of the
incident. PW-2 father of the victim also
admitted and corroborated the above facts
and stated that he had written victim's age
lower in school to her actual age. She was
18 years 6 months old at the time of the
incident. She was adult at the time of the
incident.
Learned
trial
court
after
considering testimony of PW- 5 Veerendra
Kumar Singh and the radiologial age of the
victim held that at the time of the incident
the victim was below 18 years age.

14. The trial court further found that
PW-1 victim stated that she voluntarily
went to Delhi on a tour with other students.
Rahul Chaube did not entice her away and
so far as other accused persons are
concerned, they have no concern with the
alleged incident. Rahul Chaube did not
commit rape with her because she was
staying with other girls. She returned home
after one and half month and she further
stated that the statement under section 164
Cr.PC. was recorded under the pressure of
the police. PW-2 Kripa Shankar Singh
corroborated the above facts and stated that
victim told him that she voluntarily went to
Delhi on a tour with other students. Rahul
Chaube and other accused persons did not
entice her away. PW-3 Ashutosh Kumar
Singh stated that he did not know Rahul
Chaube before the incident. He was not an
eye-witness of the incident. When his
sister-in-law (Sali) informed him by mobile
call from Mugalsarai then he gone along
with police to take her from Mugalsarai.

15. The trial court, in addition to
above,
also
noticed
that
there
is
unexplained delay of 35 days in lodging the
FIR of the present case, the prosecution has
not given any reason or explaination about
delay of lodging the F.I.R. PW-2 Kripa
Shankar Singh stated that he lodged the
F.I.R. on the basis of information given by
other persons. He did not know the names
of the persons, who have given the
information
about
the
incident.
The
statement of victim under section 164
Cr.PC was recorded on 17.6.2014 after 10
days of the alleged recovery of the victim
on 7.6.2014. The trial court further noticed
that the statement of victim under section
164 Cr.PC. was recorded actually after 20
days after her return, during the custody of
her parents.

16. Apart from this, learned trial court
found that the victim (PW-1), informant
(PW-2) and eye-witness (PW-3) have not
supported the prosecution version, the
prosecution has failed to prove the charges
levelled against the accused-respondents,
therefore, acquitted them.

17. Learned A.G.A. submits that as
per the prosecution case, the F.I.R. of case
crime No. 173 of 2014 has been lodged
under section under Sections 363, 366
I.P.C. against the accused/respondents and
Sanjay Chaube on 2.5.2014 at P.S. Lanka,
District Varanasi.

18.

Learnded
A.G.A.
further
submitted that the prosecutix was minor at
the time of the incident, as per High School
certificate and there is sufficient evidence
to prove the complicity of the accusedrespondents in commission of offence. It is
further contended that medical evidence of
the
victim
has
also
been
wrongly
90 INDIAN LAW REPORTS ALLAHABAD SERIES
disbelieved by the trial court. The victim
was enticed away by Rahul Chaube from
the lawful guardianship along with other
accused-respondents and she was raped by
Rahul Chaube. The learned trial court
without considering the evidence on record
acquitted the accused-respondents. The
judgment and order impugned cannot be
sustained.

19. We have given thoughtful
consideration to the submissions of the
learned A.G.A. and have carefully persued
the judgment passed by the court below.

20. Before we proceed to examine the
weight of the submissions made on behalf
of the State, it would be useful to notice the
law with regard to the scope of power of
the appellate court in interfering with the
judgment of acquittal recorded by the trial
court.

21. The Supreme Court in various
judgments has repeatedly laid down that
unless the findings of trial court are
perverse or contrary to the material on
record, High Court cannot, in appeal,
substitute its findings merely because
another contrary view was possible on the
basis of the evidence. (Vide: C. Antony v.
K.G. Raghavan Nair4). If the view of the
evidence taken by the trial court is
reasonably possible, the High Court should
not, as a rule of prudence, disturb the
acquittal. (Vide: Sirajuddin @ Siraj v.
State of Karnataka5)

22. In State of Madhya Pradesh v.
Ramesh And Another,6 the Apex Court,
while
considering
the
scope
of
intereference in appeal against acquittal
observed in paragraph no. 15 of the
aforesaid judgment which is reproduced
herein below:

Appeal against acquittal

"15. We are fully alive of the fact
that we are dealing with an appeal against
acquittal and in the absence of perversity in
the said judgment and order, intereference
by this Court exercising its extraordinary
jurisdiction, is not warranted. It is settled
proposition of law that the appellate court
being the final court of fact is fully
competent to re-appreciate, reconsider and
review the evidence and take its own
decision. Law does not prescribe any
limitation, restriction or condition on
exercise of such power and the appellate
court is free to arrive at its own conclusion
keeping in mind that acquittal provides for
presumption in favour of the accused. The
presumption of innocence is available to
the person and in criminal jurisprudence
every person is presumed to be innocent
unless he is proved guilty by the competent
court and there can be no quarrel to the
said
legal
proposition
that
if
two
reasonable views are possible on the basis
of the evidence on record, the appellate
court should not disturb the findings of
acquittal."

23. In Mrinal Das and Others v.
State of Tripura,7 the Supreme Court
further observed similar position of law as
provided in para 14 of the aforesaid
judgment which is as under:

"14. There is no limitation on the
part of the appellate court to review the
evidence upon which the order of acquittal
is found and to come to its own conclusion.
The appellate court can also review the
conclusion arrived at by the trial court with
respect to both facts and law. While
dealing with the appeal against acquittal
preferred by the State, it is the duty of the
appellate court to marshal the entire
5 All. State of U.P. Vs. Rahul Chaubey & Ors.
91
evidence on record and only by giving
cogent and adequate reasons set aside the
judgment of acquittal. An order of acquittal
is to be interfered with only when there are
'compelling and substantial reasons' for
doing
so.
If
the
order
is
'clearly
unreasonable', it is a compelling reason for
intereference. When the trial court has
ignored the evidence or misread the
material evidence or has ignored material
documents like dying declaration/report of
ballistic experts, etc., the appellate court is
competent to reverse the decision of the
trail court depending on the materils
placed."

24. In Mahadeo Laxman Sarane
and Another v. State of Maharashtra,8
the Apex Court has observed in para 20 of
the aforesaid judgment which is as under:

"...............We are conscious of
the settled legal position that in an appeal
against acquittal the High Court ought not
to interfere with the order of acquittal if on
the basis of the same evidence two views
are reasonably possible- one in favour of
the accused and the other against him. In
such a case if the trial court takes a view in
favour of the accused, the High Court
ought not to interfere with the order of
acquittal. However, if the judgment of
acquittal
is
perverse
or
highly
unreasonable or the trial court records a
finding of acquittal on the basis of
irrelevant or inadmissible evidence, the
High Court, if it reaches a conclusion that
on the evidence on record it is not
reasonably possible to take another view, it
may be justified in setting aside the order
of acquittal............."

25. In Ramesh Babulal Doshi v. The
State of Gujarat,9 the Apex Court
observed in para 7 of the aforesaid
judgment which is as under:

"..........This Court has repeatedly
laid down that the mere fact that a view
other than the one taken by the trial court
can be legitimately arrived at by the
appellate court on reappraisal of the
evidence cannot consitute a valid and
sufficient ground to interfere with an order
of acquittal unless it comes to the
conclusion that the entire approach of the
trial court in dealing with the evidence was
patently illegal or the conclusion arrived at
by it were wholly untenable. While sitting
in judgment over an acquittal the appellate
court is first required to seek an answer to
the question whether the findings of the
trial court are pulpably wrong, manifestly
erroneous or demonstrably unsustainable.
If the appellate court answers the above
question in the negative the order of
acquittal is not be disturbed. Conversely, if
the appellate court holds, for reasons to be
recorded, that the order of acquittal cannot
at all be sustained in view of any of the
above infirmities it can then and then - only
reappraise the evidence to arrive at its own
conclusion.........."

26
.
In
Rohtash
v. State
of
Haryana,10 the Apex Court held in para
27 of the aforesaid judgment which is
reproduced herein below:

"..........The law of interering with
the judgment of acquittal is well settled. It
is to the effect that only in exceptional
cases
where
there
are
compelling
circumstances and the judgment in appeal
is found to be perverse, the appellate court
can interfere with the order of the
acquittal. The appellate court should bear
in mind the presumption of innocence of the
92 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and further that the trial court's
acquittal bolesters the presumption of
innocence. Intereference in a routine
manner where the other view is possible
should be avoided, unless there are good
reasons for interference."

27. In Sampat Babso Kale and
Another v. State of Maharashtra,11 the
Apex Court observed in para 8 of the
aforesaid judgmnet which is reproduced
herein below:

"8. With regard to the powers of
an appellate court in an appeal against
acquittal, the law is well established that
the presumption of innocence which is
attached to every accused person gets
strengthened when such an accused is
accquited by the trial court and the High
Court should not lightly interfere with the
decision of the trial court which has
recorded the evidence and observed the
demeanour of witnesses. This Court in
Chandrappa v. State of Karnataka12, laid
down the following principles: (SCC,
p.432, para 42)

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate court while dealing with an
appeal against an order of acquittal
emerge:

(1) An appellate court has full
power
to
review,
reappreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
'substantial and compelling reasons', 'good
and
sufficient
grounds',
'very
strong
circumstances',
'distorted
conclusions',
'glaring mistakes', etc., are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
'flourshes of language' to emphasise the
reluctance of an appeallate court to
interfere with acquittal than to curtail the
power of the court to review the evidence
and to come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed and
strengthened by the trial court.

(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the findings of acquittal recorded
by the trial court."

28. The above principle of law has
been reiterated and affirmed further in
Mookkiah and Another v. State, rep. by
the Inspector of Police, Tamil Nadu13
and in Ramesh and Others v. State of
Haryana,14 where it has been held that the
scope of intereference in an appeal against
acquittal is narrower, than an appeal against
5 All. State of U.P. Vs. Rahul Chaubey & Ors.
93
conviction
because
presumption
of
innocence gets further fortified by an order
of acquittal and the appellate court need not
substitute its finding unless there is
substantial and compelling reasons to differ
with the findings of the trial court, or where
the finding of the trial court is perverse or
against the settled position of law.

29. Keeping in mind the legal
principles noticed above, now, we shall
examine the weight of the submissions with
reference to the evidence led by the
prosecution and the findings returned
thereon. Before that, at the outset, it may be
observed that in the application seeking
leave to appeal as well as in the
memorandum of appeal, it has not been
stated that the trial court has misread or
misquoted the statement of the prosecution
witnesses. We have therefore to first
ascertain whether the findings of the trial
court are sustainable or not. The thurst of
the submission of the learned A.G.A. is that
the trial court has not appreciated the
statement of the victim recorded under
Section 164 Cr.PC. wherein the victim has
supported the prosecution version.

30. It is case in which ocular evidence
of the prosecution i.e. PW-1 victim, PW-2
Kripa Shankar Singh and PW-3 Ashutosh
Kumar
Singh
did
not
support
the
prosecution case and they declared hostile
by the prosecution after leave of the court.
After close scrutiny of the whole judgment,
we have not found any evidence which
suggests any complicity of the accusedrespondents in the present case.

31. It is settled position of law that a
statement under Section 164 of the Cr.PC.
is not substantive evidence. It can be used
to corroborate the statement of a witness. It
can be used to contradict a witness.
(Vide: Ram Kishan Singh v. Harmit
Kaur and another15).

32. It is settled law that the evidence
of hostile witnesses can also be relied upon
by the prosecution to the extent to which it
supports the prosecution version of the
incident. The evidence of such witnesses
cannot be treated as washed off the records,
it remains admissible in trial and there is no
legal bar to base the conviction of the
accused
upon
such
testimony,
if
corroborated by other reliable evidence.
(Vide: Bhajju @ Karan Singh v. State of
Madhya Pradesh16)

33.

Considering
the
fact
and
circumstances of the case, and with
reference to the principles goveringing the
weighing of evidence, we do not find any
factual or legal error in the assessment of
the evidence by the court below while
acquitting the accused-respondents. Hence,
keeping in mind the settled legal postition
that in an appeal against acquittal the
appellate court should not interfere unless
there are compelling reasons to differ with
the finding of the trial court and not merely
because the other view is also possible, we
are of the considered view that no
compelling reasons has been shown to us to
grant leave to the State so as to entertain
appeal against the judgment and order of
acquittal passed by the court below.
Consequently, the application seeking leave
to appeal is rejected. As a result, the
government appeal is dismissed.

34. We may put on record that
according to the office report no appeal has
been filed by the victim against the
judgment and order of the court below.
----------
94 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)05ILR A94
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.04.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Habeas Corpus Writ Petition No. 9996 of 2021

Sadhna Kumari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Janardan Singh

Counsel for the Respondents:
G.A.

(A) Contract Law - Indian Contract Act,
1872: Sections 10, 11 - Indian Majority
Act, 1875 - Section 3 - Child Marriage
Restraint Act, 1929 - Juvenile Justice
(Care and Protection of Children) Act,
2015 - The Hindu Marriage Act, 1955:
Section 5(iii)

The detenue petitioner and her next friend
alleged to have solemnized their marriage
through an agreement dated 31.07.2020.
However, the said agreement executed by
the petitioner (Sadhna Kumari) when she
was 17 years and 4 months old, meaning
thereby she could not have given valid
consent at the relevant date despite the
alleged agreement of her consent to cohabit
with Shekhar Pandey. (Para 14)

The detenue petitioner's urge from the
Court to issue a notice to produce the
alleged detenue on the basis of said
"agreement" will amount to giving effect to
the agreement. The agreement is not
enforceable in law for want of capacities of
the parties to the agreement. Undoubtedly,
both the parties was minor i.e., not of
marriageable age when entered into the
agreement to marry on 31.07.2020. (Para
16-19)
The minors agreement is void in law. The
marriage is not solemnized under the Hindu
Marriage Act or otherwise entered by the parties
thereto according to the law, but is being
claimed as an agreement to cohabit as husband
and wife by virtue of agreement dated
31.07.2020. The option to ratify the agreement
executed at the age of minority is allowed only
when a contract is entered on behalf of a lawful
authority of a minor. (Para 21, 22)

Writ Petition Rejected. (E-8)

List of Cases cited:-

1. Mohori Bibee Vs Dharmoda Ghose (1903) ILR
30 Cal. 539 (P.C.)

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case called out for virtual
hearing as fresh petition.

2. Learned counsel for the petitioner,
Sri Janardan Singh, Advocate and learned
A.G.A for the State are connected through
video conferencing.

3. The instant writ petition is filed
seeking issuance of direction in the nature
of habeas corpus. Allegedly, the petition is
moved on behalf of 'Sadhna Kumari', aged
about 18 years, through her next friend on
15.4.2021. The next friend, allegedly the
husband namely Shekhar @ Shekhar
Pandey aged about 19 years, is resident of
District-Gonda. The opposite parties no.4
and 5 (parents of petitioner Sadhna
Kumari) are resident of village Mau, with
whom
her
unlawful
detention
is
complained of.

4. Briefly stating the grounds for
issuance of direction in the nature of habeas
Corpus through the next friend Shekhar @
Shekhar Pandey, as pleaded in the petition