Engagement Of Child Not Offence U/S 11 Of Child Marriage Act: Rajasthan High Court Quashes Criminal Proceedings Against Father

Section 11 of the Act provides punishment for promoting or permitting solemnisation of child marriages while Section 15 of the Act states that notwithstanding anything contained in the CrPC), an offence punishable under this Act shall be cognizable and non-bailable.

Justice Dinesh Mehta observed,

"A perusal of Section 11 of the Act of 2006, makes it abundantly clear that organising marriage is a sine qua non to constitute an offence under the Act of 2006. Engagement of a child in any case does not amount to an offence under Section 11 of the Act of 2006. Admittedly, on the fateful day of 25.02.2020, petitioner's son was getting engaged which cannot be confused with or construed to be a marriage, falling foul to the provisions of the Act of 2006."

Essentially, on 25.02.2020, a function for the engagement of the petitioner's son was going on, when the Investigating Officer approached the place. As per FIR lodged by District Legal Service Authority for the purported offence under Sections 11 and 15 of the Act, there is clear assertion of the engagement ceremony being solemnized and a notice being issued to the petitioner warning him not to hold the marriage of his son.

By way of the present misc. petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has challenged the proceedings pending before the trial Court pursuant to the said FIR registered at Police Station Osian, District Jodhpur (Rural). Notably, as per the FIR, the petitioner had simply organised an engagement ceremony for his son and no marriage had taken place.

The court noted that the complainant and the Investigating Officer knowing it fully well that the function was for engagement have lodged/registered FIR treating the act of arranging engagement ceremony to be an act 'promoting child marriage', completely ignoring the fact that 'contracting child marriage' is a foundational prerequisite.

It is rather unfortunate that the petitioner had to remain behind bars for 3 to 4 days, opined the court. The court added that consequently, the petitioner had been placed under suspension by his employer and he is facing departmental enquiry for an act which by itself does not constitute an offence by any stretch of imagination.

In addition to this, the court observed,

"It is a fit case where this Court should exercise its inherent power under Section 482 of the Code not only because the proceedings are fundamentally void but also in order to eschew abuse of the process of Court and to save the petitioner from unnecessary harassment and drastic consequences. The present misc. petition is thus, allowed. The proceedings of CRO No.293/2020, pending before the Judicial Magistrate, Osian, Jodhpur pursuant to FIR No.0116 dated 27.05.2020, are hereby quashed."

The court directed that a copy of this order should be sent to the Secretary, District Legal Service Authority, Jodhpur.

The counsel for the petitioner pointed out that there is a clear indication of serving a notice to the petitioner enjoining upon him not to contract his son's marriage. He argued that since marriage had not taken place, neither the FIR could be registered for the offences under Sections 11 and 15 of the Act of 2006 nor could the court take cognizance and frame charges against the petitioner. Highlighting petitioner's plight, he informed that the petitioner was arrested and remained behind bars for more than 48 hours before he could be enlarged on bail; as a result he has not only been placed under suspension, but even forced to face departmental enquiry.

The Public Prosecutor was not in the position to establish from the record that the petitioner's son had contracted marriage on 25.02.2020. He, however, argued that organising engagement ceremony amounts to promoting child marriage and thus, petitioner is being rightly tried for the offences under the Act of 2006.

Adv. Hari Singh Rajpurohit appeared for the petitioner while PP Gaurav Singh appeared for the respondent-state.

Case Title: Anop Singh v. State Of Rajasthan, Through Pp

Citation: 2022 LiveLaw (Raj) 153

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