- (1.) This revisional application under Section 482 read with Section 401 of the Code of Criminal Procedure (hereinafter called the Code) is directed against the order dated 13.11.03 passed by the learned Sub-Divisional Judicial Magistrate (hereinafter called the S.D.J.M.), Howrah in connection with G. R. Case No. 1861 of 2002 arising out of Sibpur P.S. Case No. 275 dated 18.11.02 thereby refusing petitioner's prayer to release the victim girl into his custody.
(2.) Learned Advocate for the petitioner contended that the petitioner is the husband of the victim girl Rinku @. Rinki Tiwari and there is valid marriage certificate in support of their marriage. Sioji Tiwari, father of the victim lodged the F.I.R. on 18.11.02 on the basis of which Sibpur P.S. Case No. 275 under Sections 363/366/120B of the Indian Penal Code (hereinafter called the I.PC.) was started against the petitioner and other members of his family. In the F.I.R. the informant falsely alleged that the victim was a minor of aged 15 years only. In fact, the victim is major and the voters' list of village Kamalpur under Kanchanpur Panchayat of District Balia as on 1.1.99 recorded age of the victim 18 years. In the ossification test also the doctor opined that the victim is 17 years in age. The victim affirmed an affidavit before the Notary Public at Dhanbad on 20.11.02 wherein she stated her age as 21 years. The victim has in the meantime given birth to a male child on 5th August, 2003. She has been lodged in Liluah Rescue Home along with baby child which is not desirable at all because, the victim is not an accused of the case. Therefore, when the victim is major and is wife of the petitioner, the victim should be released and should be given in custody of the petitioner. The impugned order of the learned Magistrate being bad in law should be set aside.
(3.) Mr. Sk. Kasem Ali Ahmed appearing for the State submitted that according to F.I.R. age of the victim is only 15 years and she is a minor. Marriage of a Hindu minor girl without consent of her guardians and without absence of her guardians before the Marriage Registrar should be regarded as void marriage. Moreover, the marriage certificate shows that the marriage was registered under the Hindu Marriage Act and such marriage registration is bad in law when her parents were not present before the Marriage Registrar. It could have been registered under the Special Marriage Act and not under the Hindu Marriage Act. The affidavit affirmed before Notary Public at Dhanbad cannot be given any reliance and the affidavit is out of jurisdiction of this Court. The application itself is not maintainable as the affidavit in support of this revisional application has been affirmed by the petitioner, who is the principle accused of this case and against him not only a case under Section 363/366 of I.PC. is pending but, subsequently Section 376 of I.PC. has been added. The papers produced by the petitioner cannot be relied upon as all the papers have been prepared and manufactured by the petitioner and his family members. The order of the learned Magistrate being correct and proper requires, no interference.;