NASIR SHABBIR SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is the original accused. He seeks quashing of the complaint at Annexure-A to the petition dated 15.11.2008 filed before Olpad police station being C.R. No.I-138/2008. Complainant is father of one Nisat Parvin. Petitioner is accused No.1. As per the complainant, his minor daughter was kidnapped by the petitioner and other two co-accused. Offences under Sections 363 and 366 read with Section 114 of the IPC are therefore, alleged. It is however the case of the petitioner that there was an affair between the petitioner and the said girl. Though admittedly she was aged below 18 years of age, she had left her father's house voluntarily. Petitioner and Nisat have now got married. Petitioner himself is a young boy aged about 23 years.

(2.) On behalf of the petitioner, it was submitted that under Muslim law, a girl who has attained puberty and who has crossed 15 years of age is free to enter into valid marriage without consent of the parents, if she is found to be of sound mind. Reliance was placed on decision of this Court in case of Alimamad Mersha Shaikh v. State of Gujarat reported in 2006(3)GLR 2472, wherein these aspects have been discussed. Learned Judge was pleased to hold that in such cases of married Muslim lady below 18 years of age, her husband shall be entitled to her custody. 2.1 Counsel also drew my attention to an order dated 4.5.2009 passed in Special Criminal Application No. 15/2009 by Division Bench of this Court. It was a habeas corpus petition filed by the complainant which was turned down by the Division Bench and request for sending Nisad to Nari Sanrakshan Gruh was also not accepted. This was done after ascertaining her wish. 2.2 It is also contended that statement of the girl is recorded by the police and she has fully supported the above version put-forth by the petitioner.

(3.) On the other hand, learned counsel for respondent No.2 original complainant submitted that his daughter was minor. She was taken out of the custody of her guardian. Offence of kidnapping is therefore, made out. He relied on decision of the Apex Court in case of Prakash v. State of Haryana reported in (2004) 1 Supreme Court Cases 339, wherein it is observed that consent of minor who is taken or enticed is wholly immaterial. It is only the guardian's consent which takes the case out of the purview of offence of kidnapping.