Unni A. and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **Crl.MC.No.2459 OF 2018** ## **CRIME NO.1161/2017 OF Kilimanoor Police Station , Thiruvananthapuram** ## **PETITIONER/S:** - **1 UNNI A AGED 26 YEARS, S/O. ARJUNAN, UNNI MANDIRAM, KADACKAL,CHANAPARA, KINATTUMUKKU, KILIMANNOR** - **2 MANI.K AGED 50 YEARS, S/O. KOCHUCHERUKKAN,KUNNIL VEEDU, KUTHIRATHADOM, CHARUPARA P.O,PAZHAYAMKUNNEL, THIRUVANANTHAPURAM.** - **3 CHANDRAMATHI. AGED 43 YEARS,W/O. MANI, KUNNIL VEEDU, KUTHIRATHADOM,CHARUPARA P.O, PAZHAYAMKUNNEL, THIRUVANANTHAPURAM.** **4 ARJUNAN. AGED 60 YEARS, S/O. CHINNAN, UNNI MANDIRAM, KADACKAL, CHANAPARA, KINATTUMUKKU, KILIMANNOOR.** **5 SUDHA AGED 52 YEARS, W/O. ARJUNAN, UNNI MANDIRAM, KADACKAL, CHANAPARA, KINATTUMUKKU, KILIMANNOR. BY ADV. SRI.MANSOOR.B.H.** ## **RESPONDENT/S:** **1 STATE OF KERALA REP BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,REPRESENTING THROUGH STATION HOUSE OFFICER,KILIMANOOR POLICE STATION, THIRUVANANTHAPURAM DIST. 695 004. 2 MANEESHA AGED 19 YEARS,D/O. MONIO,KUNNIL VEEDU,KUTHIRATHADOM, CHARUPARA P.O,PAZHAYAMKUNNEL, THIRUVANANTHAPURAM 695 004.** **R1-2 BY ADV. SRI.B.H.ANSIL** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.2459 OF 2018 2 ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C. No.2459 of 2018** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 8[th] day of September, 2020 ## **O R D E R** The prayer in the above Crl.M.C. filed under Sec.482 of the Cr.P.C. is as follows : _“xxx xxx may be pleased to quash Annexure-A FIR and all further proceedings in Crime No.1161/2017 of Kilimanoor Police Station, Thiruvananthapuram District.”_ 2. Heard Sri.B.H.Mansoor, learned counsel appearing for the petitioners, Sri.B.Jayasurya, learned Public Prosecutor appearing for the respondent-State and Sri.B.H.Ansil, learned counsel appearing for R2. 3. The petitioners herein have been arrayed as the five accused in Crime No.1161 of 2017 of Kilimanoor Police Station, registered for the offences punishable under Sections 3, 4 and 17 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006. The 1[st] petitioner is the husband of the first informant complainant and the 2[nd] and 3[rd] petitioners are the parents of the 1[st] petitioner and the 4[th] and 5[th] petitioners are the parents of the first informant. The marriage between the 1[st] petitioner and the first informant was solemnized on 28.08.2016 as per Hindu Religious Crl.MC.No.2459 OF 2018 3 Rites in a temple and a girl child was also born in the said wedlock. 4. The brief of the prosecution case is that, the above said accused persons with an intention to commit sexual assault by solemnizing the marriage of the 1[st] accused with the first informant, who was a minor aged 16 years at the time of solemnization of marriage and later, she became pregnant and thereby the above said offences have been arrayed against the petitioners. 5. It appears that there was no formal complaint also for the first informant and she has been delivered the child, she was admitted in the hospital and the hospital authorities recorded her age, they felt that the first informant is a minor and had accordingly, informed the police authorities, who had then taken the statement from her, which was treated as the First Information Statement and this led to the registration of the present crime. 6. It is beyond any dispute that the 2[nd] respondent (lady victim) has not approached the police authorities by filing any complaint in respect of the abovesaid incidents. Further, the specific case as per the FIS attached to Annexure-A FIR is that her marriage with the 1[st] petitioner (A1) was arranged on account of the understanding arrived at between both the families and that the 1[st] petitioner and his family members were never aware at that time that the 2[nd] respondent had not actually completed the majority age of 18 years at the time of the marriage proposal and Crl.MC.No.2459 OF 2018 4 solemnization of the marriage. Further that, she had consented to the said marriage which was solemnized on 28.8.2016 in accordance with the Hindu rites and customs and that she had sexual relationship with the 1[st] petitioner only after the solemnization of the marriage and later, she had became pregnant and when she was admitted in the hospital, her age was disclosed before the hospital authorities, who then alerted the police that the 2[nd] respondent may have been a minor when she became pregnant and it is only on this account that the impugned criminal proceedings have been initiated against the petitioners for the offences as per Secs. 3, 4 and 17 of the Protection of Children from Sexual Offence Act and Secs.9 and 10 of the Prohibition of Child Marriage Act, 2006. A reading of the prosecution materials at Annexure-A and B would clearly show that it is the admitted case of the prosecution as per the version of the prosecutrix that the petitioners were not aware that the 2[nd] respondent had not completed the majority age of 18 years at the time of marriage proposal or solemnization of marriage. Further that, the 2[nd] respondent had completed 16 years of age at the time of solemnization of marriage on 28.8.2016. Annexure-B is the marriage certificate in this case. 7. After hearing both sides, this Court is of the considered view that the matter in issue is broadly covered in favour of the petitioners on the basis of the dictum laid down by this Court in decisions as in _**Mohammed Rasal v.State of Kerala and anr**_ . [2019 (5) KHC 904]. Crl.MC.No.2459 OF 2018 5 ## It will be pertinent to refer to para Nos. 6 to 9 of the said decision of this Court in _**Mohammed Rasal’s**_ case (supra) [2019 (5) KHC 904] which ## reads as follows : _6. “It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C. cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {see Shimbhu & Anr. v. State of Haryana [2014 (13) SCC 318], Parbatbhai Aahir v. State of Gujarat [(2017) 9 SCC 641],Anita Maria Dias v. State of Maharashtra [(2018) 3 SCC 290], Sebastian @ Solly v. State of Kerala [2015 (1) KLJ 384, etc.}. However, this Court has held in various decisions including the decisions as in Freddy @ Antony Francis & Ors. v. State of Kerala & Anr. [2017 KHC 344 = 2018 (1) KLD 558), Denu P.Thampi v. Ms.X, [2019(3) KHC 199], etc. that the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto complainant/victim, to ensure her better future life. It is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings on the ground of settlement between the parties in such cases where the accused is alleged to have committed penetrative sexual assault/rape on a victim/minor victim on the assurance of the marriage, etc. and where the marriage between the accused and the victim is subsequently solemnized. That mainly applies in the case where the marriage is conducted after the lady victim has also attained the age of 18 years. But it has to be noted that in the present case, the allegation is that the families on both sides had arranged the marriage between the petitioner/accused, then aged 25 years and the 2nd respondent lady defacto complainant, then aged 17 years, they had entered into sexual relationship only after the solemnization of the marriage, and she has given birth to a child after she has attained the majority age of 18 years._ _7. Whereas the cases dealt with by this Court in the decisions as in Freddy's case supra and Denu P.Thampi's case supra, are situations where the accused would have promised the victim that he would marry her and then would have sexual relationship and thereafter, he is charged with the offence of rape and subsequently the parties get married and this Court, exercising its discretion under the inherent powers as per Sec. 482 of the Cr.P.C. quashed the criminal proceedings as otherwise it would detrimentally affect the marital life of the victim herself. This Court is of the considered view that the facts of this case would certainly stand on a much better pedestal than the facts covered by the cases as in Freddy's case supra and Denu P.Thampi's case supra. In the instant case, of course, the 2nd respondent was a minor at the time of solemnization of the marriage. But after the solemnization of the marriage, the parties entered into sexual relationship and the 2nd respondent has completed the majority age of 18 years and thereafter, she has given birth a child and she has fully affirmed and confirmed the factum of her marriage, which was solemnized at the time when she was a minor and she is leading a peaceful and happy married life. Therefore, discretion conferred on this court as per Sec. 482 of the Cr.P.C. could be eminently invoked in cases of this nature, as otherwise it would be unjust and unfair to initiate criminal proceedings in a case like this, where obviously, the victim has subsequently confirmed and affirmed the marriage and the marriage had taken place before the sexual relationship._ _8. There is yet another aspect in this matter. Though the definition of rape_ Crl.MC.No.2459 OF 2018 6 _as per Sec.376 of the I.P.C. has been broadened as per the amendments made out w.e.f. 3.2.2013 and the age of consent now stands enhanced from 16 years to 18 years as per clause sixthly of Sec. 375, even till date no amendment has been made to Exception No.2 of Sec. 375 of the I.P.C., whereby it is mandated that sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. However, the Apex Court in the celebrated judgment_ dated 11.10.2017, in the case in Independent Thought v. Union of India & Anr [(2017) 10 SCC 800= AIR 2017 SC 4904] has held that in view of the provisions contained in the POCSO Act and other provisions in the Sec.375 of the I.P.C. the age limit of 15 years envisaged in Sec. 375 shall stand enhanced to 18 years, and the _alleged offence acts committed before 11.10.2017 (date of the judgment in Independent Thought's case supra), will not be detrimentally affected by the said judgment. In other words, if the marital rape is committed by husband on the wife where the age of the wife is 15 years and the said alleged sexual acts are prior to 11.10.2017 (date of the judgment in Independent Thought case supra), then the said acts will continue to get the protection as per Exception No.2 of Sec. 375 of the I.P.C.. In the instant case, the marriage between the parties has taken place on 9.4.2017, which is well before the date of rendering of the judgment (11.10.2017) by the Apex Court in Independent Thought case supra. Hence the benefit of Exception No.2 of Sec. 375 of the I.P.C. could be availed by the petitioner accused in the instant case inasmuch as the alleged sexual acts have happened after the solemnization of the marriage on 9.4.2017. So in cases where alleged marital rapes have happened in respect of the marriage solemnized prior to 11.10.2017 with a girl who has completed the age of 15 will continue to get the benefit of Exception No.2. In the instant case, the 2nd respondent had obviously completed the age of 15 years as on the date of solemnization of the marriage on 9.4.2017._ _9. Accordingly, in exercise of the powers conferred under Sec.482 of the Cr.P.C., it is ordered in the interest of justice that all further proceedings pursuant to the impugned Anx. A-1 Crime No. 104/2018 of Kodenchery Police Station, initiated against the petitioner accused and all further proceedings arising therefrom pending against the petitioner accused will stand quashed. ”_ 8. In the instant case, the marriage of the 2[nd] respondent with the 1[st] petitioner has been solemnized on 28.8.2016 and at that time, the 2[nd] respondent had completed the age of 16, going by the admitted allegations of the prosecution. Moreover, the alleged sexual acts have occurred only after solemnization of the marriage and pregnancy is immediately after the solemnization of the marriage on 28.8.2016. Exception No.2 of Sec.375 IPC reads as follows : _Exception 2. “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”_ 9. It is only later as per the judgment rendered on 11.10.2017 that Crl.MC.No.2459 OF 2018 7 the Apex Court has held in the case in _**Independent thought v. Union of India and anr.**_ [2017 (10) SCC 800] that the said age of 16 years envisaged in Exception No.2 of Sec.375 of the IPC will stand enhanced to 18 years in view of the enhancement of the age of consent to 18 years as per the amendments made to Sec. 375 of the IPC brought effective from 3.2.2013. However, it has been ordered and clarified by the Apex Court that the alleged sexual acts committed before 11.12.2017 (date of judgment of the Apex Court in _**Independent Thought’s case**_ (Supra)) will not be detrimentally affected and in other words, if the marital sexual acts are committed by the husband on the wife, where the age of the wife is fifteen years and above, then if the said alleged sexual acts are prior to 11.12.2017 (date of judgment in _**Independent Thought’s case**_ (supra)), then the said acts will continue to get the protection as per Exception No.2 of Sec.375 of the IPC. In the instant case, the marriage between the parties has admittedly taken place on 28.8.2016 and at that time, the 2[nd] respondent had to completed the age of 16 years even going by the admitted allegations of the prosecution. Hence, the 1[st] petitioner is entitled to get the benefit of Exception No.2 of Sec.375 of the IPC in the instant case. Further, the facts and circumstances of this case would stand on a higher footing compared to the facts in the decisions rendered by this Court in cases as in _**Freddy @ Antony Francis and others v.State of Kerala**_ [2017 KHC 344], _**Denu P.Thampi v. Ms.X**_ [2019 (3) KHC 199] in view of the legal Crl.MC.No.2459 OF 2018 8 principles laid down by this Court in para No.7 of _**Mohammed Rasal’s**_ case (supra) [2019 (5) KHC 904]. 10. Moreover, the specific case of the prosecutrix in Annexure-A FIS is to the effect that the petitioners were not aware that she had not completed the majority age of 18 years at the time of the marriage proposal or at the time of the solemnization of the marriage. The 2[nd] respondent has now already completed the majority age of 18 years quite some time ago and the 1[st] petitioner and 2[nd] respondent are now blessed with a child born in the said wedlock. In the light of these aspects, this Court has no hesitation to hold that the continued prosecution in relation to the impugned criminal proceedings would amount to the abuse of the process of court and would result in great hardships and injustice. Moreover, future of the 2[nd] respondent will be more affected and also, the parents of not only the 1[st] petitioner but even that of the 2[nd] respondent have been arrayed as the accused in the instant case. The 2[nd] respondent has filed Annexure-C affidavit dated 8.4.2018 stating that she has no grievances as against the petitioners, who are none other than her husband and family members on both sides and that the continued prosecution measures in this case would cause serious hardships and difficulties in her family life and that it is only now of interest that the impugned criminal proceedings to be quashed. Accordingly, this Court is of the considered view that the matter would requires serious interdiction at the hands of this Crl.MC.No.2459 OF 2018 9 Court. In that view of the matter, it is ordered that the impugned Annexure-A FIR in Crime No.1161/2017 of Kilimanoor Police Station, Thiruvananthapuram District, in which the petitioners have been arrayed as accused and all consequential proceedings emanating therefrom will stand quashed and set aside. 11. The petitioners will produce certified copies of this judgment along with the copies of the memorandum of this W.P.(C.) with all the exhibits before the Judicial First Class Magistrate Court – III, Attingal as well as the investigating officer concerned for necessary information. With these observations and direction, the above Criminal Miscellaneous Case will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS Crl.MC.No.2459 OF 2018 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE FIR IN CRIME NO 1161/2017 OF KILIMANNOOR POLICE STATION ANNEXURE V COPY OF THE MARRIAGE CERTIFICATE DATED 6/9/2016 ISSUED FROM SREE THAMPURATTIPARA DEVI TEMPLE, CHENIKUZHY ANNEXURE C AFFIDAVIT OF SETTLEMENT OF SECOND RESPONDENT.**