Rape case quashed filed by the minor wife- Gujarat HC

 on : Fri Oct 23 16:00:08 IST 2020 R CR.MA 12832 2020 JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR CRIMINAL MISC.APPLICATION NO. 128320 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE A.S. SUPEHIASd ================================================================1 Whether Reporters of Local Papers may be allowed to see thejudgment YES2 To be referred to the Reporter or not YES3 Whether their Lordships wish to see the fair copy of thejudgment NO4 Whether this case involves a substantial question of law as tothe interpretation of the Constitution of India or any order madethereunder NO================================================================GAJRAJ RAMABHAI HAJANI THRO RAMABHAI PITHABHAI HAJANI VersusSTATE OF GUJARAT ================================================================Appearance:MR PREMAL S RACHH(3297) for the Applicant(s) No. 1MS SHRUTI PATHAK APP(2) for the Respondent(s) No. 1MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2================================================================CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 20 10 2020 ORAL JUDGMENT(1)RULE. Learned advocates appearing on behalf of respectiveparties waive service of notice of rule on behalf of therespective respondents.for quashing of thePage 1 of 6 on : Fri Oct 23 16:00:08 IST 2020 R CR.MA 12832 2020 JUDGMENTFIR being C.R. No.11202057200329 dated 19.08.2020registered with Sikka Police Station District: Jamnagar for theoffences punishable under section 376 of the Indian PenalCode 1860and sections 4 and 12 of TheProtection of Children from Sexual OffencesAct 2012against her wishes. It appears that as a counter blastto the aforesaid the present F.I.R. is lodged. The prosecutrix who was 11 years of age was married to the petitioner accused of 17 years of age on 07.02 2015. She used to visither in laws occasionally. After four years of marriage it isalleged that the petitioneraccused has forced her to developphysical relationship. As on today both are minors. Theparents of the prosecutrix were well aware of all theconsequences of getting her married at the age of eleven.Uniformly the parents of the petitioner are also responsible.Both the parents have imprisoned the minors in marriage andforced them to develop relationship of husband and wife whichis a gross violation of their human rights. They are forced bythe parents to face the rigors of married life at the tender agedespite their being a prohibition under the law. Thus thegenesis of the impugned FIR lies in the child marriagearraigned by the respective parents. It also appears that theFIR is lodged at the behest of the parents invoking provisionsof serious offences. The petitioner a minor is embroiled in thePage 4 of 6 on : Fri Oct 23 16:00:08 IST 2020 R CR.MA 12832 2020 JUDGMENTserious offence of rape by the prosecutrix at the behest of herparents without realizing the consequences. In her tender agethe prosecutrix is also made to understand the immorality anddire consequence of offence of rape. The childhood of boththe petitioner and the prosecutrix is obliterated by theirparents on two counts first by marrying them in tender age and secondly by involving them in the offence of rape. Thefacts are suggestive that the minors are used as weapons inorder to satisfy their prejudices and egos. The prosecution islodged taking shelter under the minority of the prosecutrix. Thequashing of the F.I.R. is sought by citing the minor age andmarriage of the petitioner.SCC 475) “Law of this land hasalways recognised the rights of parents with theirwards minors and first and foremost consideration of the Courtis "welfare of the children" which overrides the views oropinions of the parents.”Sd .[A. S. SUPEHIA J] NEHA GUPTA BhaveshPage 6 of 6 

Summary: In the case of Gajraj Ramabhai Hajani Thro Ramabhai Pithabhai Hajani v. State of Gujarat, (R/CRIMINAL MISC.APPLICATION NO. 12832 of 2020) the high court of Gujarat had quashed the rape case against a boy filed by the minor wife, rather the court had held the parents responsible for the concerned acts, for ruining their childhood by dragging them in such a disreputable controversy, thus the cost imposed shared equally between them. The facts of this case initiate by filing the captioned application, the petitioner – accused, a “minor”, is seeking the invocation of powers of this Court under the provision of section 482 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) for quashing of the FIR being C.R. No.11202057200329 dated 19.08.2020 registered with Sikka Police Station, District: Jamnagar for the offences punishable under section 376 of the Indian Penal Code, 1860 and sections 4 and 12 of  The Protection of Children from Sexual Offences (POCSO) Act, 2012 (for short “the POCSO Act”). Interestingly, the FIR is lodged at the instance of his  “minor” wife. By the  F.I.R. dated 19.08.2020, the prosecutrix indicates that she got married to the petitioner- accused on 07.02.2015 at the age of 11 years. Her date of birth recorded in the F.I.R. is 06.01.2004. The F.I.R. also states that she was forced to maintain a physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. Thus, a girl of 11 years of age was married to the accused by her parents, who was a minor of 17 years of age and was in a forceful physical relationship on account their parent’s wishes and desires.  On the registration of the F.I.R., the prosecutrix was produced before the 7th Additional Judicial Magistrate, Jamnagar for the recording of her statement under section 164 of the Cr.P.C. This Court has perused her statement, in which she has specifically admitted that she was married to the accused and thereafter she was forced to maintain physical relationship with him after 2017. The investigation also revealed the established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor on 07.02.2015. It is also informed by the learned APP that the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. She has further submitted that the present FIR may not be quashed on the ground of settlement. Reliance is placed by her on the judgement reported in the case of State of Madhya Pradesh V/s. Laxmi Narayan, reported in (2019) 5 SCC 688. The court states that “It also appears that the FIR is lodged at the behest of the parents invoking provisions of serious offences. The petitioner, a minor is embroiled in the serious offence of rape by the prosecutrix at the behest of her parents without realizing the consequences. In her tender age the prosecutrix is also made to understand the immorality and dire consequence of offence of rape.  The childhood of both the petitioner and the prosecutrix is obliterated by their parents, on two counts, first by marrying them in tender age, and secondly, by involving them in the offence of rape.  The facts are suggestive that the minors are used as weapons in order to satisfy their prejudices and egos. The prosecution is lodged taking shelter under the minority of the prosecutrix. The quashing of the F.I.R. is sought by citing the minor age and marriage of the petitioner.” The court, in this case, had held that “This Court is of the opinion that the criminal machinery alleging such serious offences under I.P.C and POCSO cannot be allowed to be misused and the parents of such children who resort such tactics cannot be let-off easily without fastening any accountability. Sufficient time has been devoted by the investigating authority in conducting the investigation. The prosecutrix was also produced before the concerned Magistrate. A great deal of time is consumed of this Court including the registry. Hence, in order to avoid such misuse of the penal provisions, I am of the considered opinion that the time is ripe to fasten the liability for sheer wastage of time of State and the Court. Hence, I consider appropriate to impose a cost of Rs.30,000/- . It shall be deposited before the Registry of this Court. The Registry shall further transfer the amount to the Gujarat High Court Legal Service Committee.  Since the parents of both the prosecutrix and the petitioner are responsible for ruining their childhood by dragging them in such a disreputable controversy, the cost shall be shared by them equally.” “In order to see that the relationship between the families does not further deteriorate and the life of both the petitioner and the prosecutrix is maintained smoothly and effortlessly, the impugned FIR and the subsequent proceedings arising therefrom are hereby quashed and set aside in view of the settlement arrived at between the concerned parties. This Court is conscious of the decision of the Apex Court in the case of State of Madhya Pradesh V/s. Laxmi Narayan (supra). The law enunciated by the Apex Court is not applicable to the facts of the present case. Hence, the submissions advanced by the learned APP are rejected. The petition stands allowed. RULE is made absolute accordingly”