- (1.) VIRENDRA Saran, J. Petitioner, Mohd. Kallo alias Mohd. Jubeel, is involved in crime No. 124 of 1999 under Section 363/366, I. P. C. of P. S. Kotwali Dis trict Lakhimpur Kheri.
(2.) A case was registered against the petitioner on the strength of F. I. R. dated 27-2-1999 lodged by Maiku Lal stating therein that on 24-2-1999 his daughter, Km. Renu (minor), was at his house. She eloped with the petitioner on account of some inducement "kisi BAHANEY SE BAHALA PUSHLA KAR MERILADKI Km. RENU KO LE GAYA". The F. I. R. further mentions that while leaving the house Renu took away her clothes and ornaments. It is alleged in the writ pet i lion lhai Km. Renu and the petitioner loved each other. The writ petition goes on to state that Renu, who was 19 years of age, after embracing Islam married the petitioner on 5- 3-1999. She also changed her name as Reshma. The marriage was performed by a Qazi in Bareilly District. Copy of the Nikahnama has been filed as Annexure-2 to the writ petilion. Annexure-3 is a copy of an affidavit sworn by Renu before Notary (Sri Gyanendra Kumar, Advocate, Bareilly) stating thai she was 19 years of age and thai she has lo her own free-will without any concern changed her religion. On the affidavit, photograph of Renu is to be found and she has described herself as wife of the pelilioner. The wril pciition is founded on the ground lhai Km. Renu, who is a major has voluntarily, of her own free will entered into marriage with the petitioner and in view of this no offence under Seetion 363, I. P. C. or under Seetion 366, I. P. C. is spelled out against the petitioner. On 12-3-1999 this Court directed that Renu should present herself before the Chief Medical Officer, Luck-now, for ascertaining whether she is a major. The report of the Chief Medical Officer, Lucknow dated 18-3-1999 is on the icftd which shows that the age of Rcnu is 18 years. On 12-5-1999, Rcshma (maiden name Renu) appeared before us. Informant Maiku Lal was also personally, present. Maiku Lal was also allowed to have conversation with his daughter. Reshma told us that she has entered into marriage with the petitioner of her own free will and added that her real date of birth is 1st January. 1981. She further stated that even though her father was ready to take her back, but he was not ready to accept petitioner, Mohd. Kallu, as his son-in-law. We directed her to appear before the Chief Judicial Magistrate, Lucknow, for recording her statement under Section 164, Cr. P. C. and her state ment was recorded by the learned Chief Judicial Magistrate, Lucknow. In her statement, she reiterated that her actual date of birth is 1st January, 1981. She stated that she has entered into marriage with the petitioner out of her own free will and was residing with the petitioner as his wife. She also stated that she wanted to reside with her husband. She specifically stated that she was not induced or misled in any manner by any one (MUJHE KISI NE BHI BAHLAYA, PHUSLAYA YA BARGALAYA NAHIN HAI ). She also stated that she does not want to go to her father's place because his father would commit her and her husband's murder. On behalf of informant, Maiku Lal, a counter affidavit has been filed. In the counter affidavit it is mentioned that Renu is a minor. Annexure CA-1 to the counter-affidavit is photocopy of school certificate of Bhagwandin Arya Kanya Inter College, Lakhimpur-Khcri, in which the date of birth of Renu has been given 1-1-1983. It is neither mentioned in the counter affidavit that Renu had given affidavit before the Notary under some pressure. Rejoinder affidavit of Reshma (Renu) has also been filed. In the rejoinder affidavit she has specifically stated that she is a major. In Para 4 of the rejoinder affidavit it is men tioned that she had started going to school at a later stage of age as she remained ill for about three years when she was a child and thereafter she was going to school, i. e. Mishri Devi Shishu Vidyalaya, where she studied upto Class V. It is further men tioned that initially her father had given her date of birth as 1-1-1981 inmishrfdevi Shishu Vidyalaya, but, subsequently, changed the year of her date of birth from 1981 to 1983, even though, by her looks, Renu appeared to be elder. She has reiterated in the rejoinder affidavit that she had fallen in love with the petitioner and married him out of her own free will. We may note here that even in the school certificate filed with the counter affidavit, the last institution attended by Renu is mentioned as Mishri Devi Shishu Vidyalaya, Lakhimpur-Khen and there fore, the allegations in the rejoinder af fidavit that Renu had studied in Mishri Devi Shishu Vidyalaya is obviously cor rect.
(3.) WE have heard learned counsel lor the petitioner, learned counsel lor the respondent. Maiku Lal and the learned Government Advocate and have also perused the material placed on the record of the writ petition. The fact that Renu has left her parental house and joined the company of the petitioner is not an issue in the present writ petition. The recital in the F. I. R. that Renu had taken away her jewellery and clothes clearly show that she had gone away of herself. The case of the petitioner as weil as the statement of Renu are to the effect that Renu had entered into marriage with the petitioner and both arc living as husband and wife. The anchor sheet of the argument of the learned counsel for the complainant is that Renu is a minor. Renu's stand throughout has been that she was born in 1981, but her father reduced her age by two years by making a mention that she was born in 1983. In her rejoinder affidavit, Renu has mentioned that in her childhood she remained ill for about three years and for this reason her schooling started late and initially she had studied in another school, namely Mishri Devi Shishu Vidyalaya. These assertions in the rejoinder affidavit of Renu appear to be correct, under orders of this Court, the Chief Medical Officer, Lucknow had ex amined Renu and opined that she is about 18 years of age. Renu was in Court before us and appeared to be sufficiently grown and a major. In view of the assertions made by Renu, the medical report of the Chief Medical Officer and our observation, we arc unable to attach much importance to the school certificate filed along with the counter. If the schooling of Renu had started late, it was quite natural for her father to mention her age by reducing it by a couple of years. It is common knowledge that while describing the date of birth parents sometimes get reduced ages recorded in the schools for the purpose of employment, marriage and the like. We are of the view that Renu was not a minor and her age was above 18 years. Hence the offence of kidnapping a minor from lawful guardianship can by no means be brought home to the petitioner. We have already observed above that Renu has entered into marriage with Mohd. Kallu alias Mohd. Jubcel and she has embraced Islam and both are living as husband and wife. We are also of the view that if Renu, who has taken a decision to marry the petitioner and has gone to the extent of changing her religion, is reverted back to her parents by whatever means, it will create unforeseen complica tions in the lives of both Renu and the petitioner who initially belonged to dif ferent communities. Caste and communal barriers in our country play their own role. We may observe here that efforts should be to preserve the marriage rather than to destroy the same. In the social background of our country, if Renu is married to some one else and the husband comes to know of her previous affair with petitioner atleast the lives of Renu and her husband maybe ruined. While emphasising the need to preserve the marriage, in somewhat similar circumstances the Supreme Court in the case ofsangita Rani (Smt.) alias Mahnaz Jahan v. State of Uttar Pradesh and another, 1992 Supp (1) SCC 715, observed: ". . . . . . . . nothing should be allowed to hap pen which would affect that position. " It may further be emphasis that the con tinuance of proceedings arising out of the F. I. R. in the instant case are not likely to be fruitful and will simply result in the waste of public time and money.;