Case Note & Summary
The Bombay High Court allowed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 to quash an FIR and the consequent trial for offences of kidnapping, procuration, and rape under the Indian Penal Code, 1860 and the Protection of Children from Sexual Offences Act, 2012. The case arose from an FIR lodged by the father of the minor girl, alleging that the applicant had taken away his daughter on the false assurance of marriage. The girl, aged about 15 years and 7 months at the time, left her home voluntarily due to love for the applicant, and the two subsequently married in a temple before any sexual relationship began. The couple had a child and were living together amicably, and both the victim and her father filed affidavits expressing no objection to the quashing of proceedings. The court framed three main legal issues: whether the exception to Section 375 IPC applied, whether the POCSO Act could be invoked against a married minor, and whether a marital settlement warranted quashing. After examining the arguments, the court held that the exception to Section 375 (as then in force) exempted sexual intercourse by a husband with his wife if she was above 15 years, and since the marriage preceded the sexual relationship, no offence under Section 376 was made out. The Supreme Court’s Independent Thought judgment, which struck down that exception, was given prospective effect and did not apply to the present incident of 2013. On the POCSO Act, the court followed Independent Thought to conclude that the definition of ‘child’ did not cover a married minor, hence Section 6 was not attracted. Further, the court found that the girl had left home voluntarily, negating the element of kidnapping or enticement required under Sections 363 and 366A. Considering the settlement, the continued cohabitation, and the lack of any useful purpose in prosecution, the court invoked its inherent powers under Section 482 CrPC to quash the FIR and all proceedings, finding that allowing the trial to continue would be an abuse of process and contrary to the ends of justice. The decision emphasized that while serious offences cannot be quashed merely by consent, the peculiar facts—including the prior marriage and the victim’s voluntary participation—rendered the prosecution futile.
Headnote
A) Criminal Procedure - Quashing of FIR - Section 482 Criminal Procedure Code, 1973 - Court can quash proceedings to secure ends of justice, especially in matrimonial disputes where parties have settled and no useful purpose served by prosecution - Held that even non-compoundable offences can be quashed in exceptional circumstances to prevent abuse of process and meet ends of justice (Paras 5,8,9). B) Indian Penal Code - Rape - Exception to Section 375 - Sexual intercourse by husband with wife above 15 years not rape - In 2013, proviso to Section 375 provided exception for wife aged 15 years and above, so no offence under 376 if marriage occurred first - Supreme Court in Independent Thought struck down the proviso but prospectively from 11.10.2017, thus not affecting prior incidents - Held that since victim was above 15 years and married before sexual intercourse, no offence under Section 376 IPC (Paras 4,5,8). C) Protection of Children from Sexual Offences Act, 2012 - Definition of Child - Section 2(1)(d) - Child means any person below 18 years, but in context of exception to Section 375, married minor not covered - Court relied on Independent Thought to hold that POCSO Act does not apply to a wife below 18 years - Held that Section 6 POCSO not attracted when the victim is a married minor (Paras 5,8). D) Indian Penal Code - Kidnapping - Sections 363 and 366A - Kidnapping requires taking away from lawful guardianship without consent, but when minor leaves voluntarily due to love, no offence - Court observed victim left on her own, not enticed or taken by accused - Held that no prima facie case under Sections 363 and 366A IPC (Paras 2,3,8).
Issue of Consideration
Whether the FIR and criminal proceedings under Sections 363, 366A, 376 IPC and Section 6 of POCSO Act can be quashed on the ground that the accused married the victim (who was minor at relevant time) prior to sexual intercourse, and whether the exception to Section 375 IPC applies when the wife was above 15 years, and whether POCSO Act applies to a married minor.
Final Decision
Criminal Application allowed. FIR No. 117/2013 registered with Sailu Police Station and proceedings in Special Sessions Case No. 32/2014 pending before Sessions Court, Parbhani are quashed and set aside.
Law Points
- quashing of FIR under Section 482 CrPC
- exception to Section 375 IPC for wife above 15 years
- prospective overruling of proviso in Independent Thought v. Union of India
- POCSO Act definition of child does not include married minor
- voluntary leaving by minor not kidnapping under Sections 363 and 366A IPC
- matrimonial settlement can be ground for quashing
