Gujarat High Court: A.S. Supehia, J., quashed a rape case against a boy which was filed by his minor wife.
The FIR mentioned that the prosecutrix was married to the petitioner- accused on 07-02-2015 at the age of 11 years and that she was forced to maintain the physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. During the pendency of the petition, an affidavit was filed by the complainant, stating that the dispute had been amicably resolved between the families and she does not want to further pursue the criminal prosecution and counsel for both respective parties have submitted that in the respective communities of both the boy and the girl, the custom of child marriage was still prevailing and hence, the prosecutrix and the petitioner were married by their parents when they were minors.
The Court after perusing the records after the completion of investigation observed that it was an established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor and the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. Further, the Court was not detrimental or adverse to the settlement arrived at between the families, stating that the reckless and irresponsible demeanor of the parents of both the boy and the girl cannot be ignored. The Court further stated,
The parents of the prosecutrix were well aware of all the consequences 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 and forced them to develop relationship of husband and wife which is a gross violation of their human rights. They are forced by the parents to face the rigors of married life at the tender age despite their being a prohibition under the law. Thus, the genesis of the impugned FIR lies in the child marriage arraigned by the respective parents.
The Court opined that the criminal machinery alleging such serious offences under Penal Code, 1860 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.
The Court while quashing the FIR against the boy imposed cost on the families of the prosecutrix and the petitioner holding them responsible for ruining their childhood by dragging them in such a disreputable controversy. The Court quoted from the judgment of the Supreme Court in Aarushi Dhasmana v. Union of India, (2013) 9 SCC 475 where K.S.P. Radhakrishnan, J., had observed,
“Law of this land has always recognised the rights of parents with their wards/minors and first and foremost consideration of the Court is “welfare of the children”, which overrides the views or opinions of the parents.”[Applicant v. State of Gujarat, R/Criminal Misc. Application No. 12832 of 2020, decided on 20-10-2020]
Suchita Shukla, Editorial Assistant has put this story together
