AFVAN ARIFBHAI JANUHASAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is the original accused. The prayer in this petition is to quash and set aside FIR registered as C.R. No.I-15 of 2012 with Dhoraji Police Station by the complainant, who is the father of one Farida. As per the complainant, his minor daughter-Farida was kidnapped by the petitioner and offences under Sections 363 and 366 of the Indian Penal Code were registered. However, it is the case of the petitioner that in view of affair between the petitioner and the said girl, who are belonging to same community, they decided to live together and accordingly Nikah was performed on 26.6.2011. Accordingly, marriage certificate was issued by the Qazi, who performed Nikah ceremony. According to the record available at the relevant point of time viz. when the FIR was registered, the petitioner was aged about 24 years and Farida, with whom the petitioner has performed Nikah, was aged 16.2 years.

(2.) In addition to certain facts averred in the petition, Shri Premal S. Rachh, learned counsel for the petitioner has invited my attention to a decision of the Apex Court in the case of Fazle Gaffar Khan and Others v. State of West Bengal and Another [(2000) 10 SCC 10] with regard to exercise of powers under Section 482 of the Code of Criminal Procedure in a case of allegations levelled under Section 366 of Indian Penal Code about kidnapping a minor girl with whom the kidnapper had affair. Besides on the issue raised in this petition about competency of a minor Muslim girl to enter into wedlock even in absence of consent by her parents, reliance is placed on the decision in the case of Alimamad Mersha Shaikh v. State of Gujarat, [2006 (3) GLR 2472], where the issue is discussed threadbare and the learned Single Judge of this Court was pleased to hold that in such a case of marriage of Muslim lady below 18 years of age her husband shall be entitled to her custody. Similarly, an order dated 4.5.2009 passed in Special Criminal Application No.15 of 2009 by a Division Bench of this Court taking almost similar view is also pressed into service in respect of argument that this is a fit case of exercise of powers under Section 482 of Code of Criminal Procedure as the complaint is nothing but abuse of process of law and dislike of father of Farida resulted into lodging of such complaint.

(3.) Heard learned Additional Public Prosecutor for the State.