in Criminal Law
Asked May 14, 2015

Under age lovers elope - FIR against boy and boy's family

  • 2 Answers

Hi, I would like to get some legal advice regarding my current family situation. As my younger brother (17 years) and her lover (17 years 9 months) ran away 2 days back and the girl family has made a FIR against us under section 361,366 and so on (I m not sure).This is the second instance. They have hired some goons and threaten to kill them and harassing my family.Police also has denied to write an FIR against girl family and told us that your son will be convicted. Now Police are coming to my home and harassing my parents. Thanks,

Answers 2

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Garima Nagpal
It is a common practice that if a girl below 18 years elopes with her lover, her family lodges a FIR under Section 361 for Kidnapping from the lawful guardianship and section 366 of IPC alleging that the girl was forced to marry the boy. However, it is settled law that the boy cannot be convicted under these charges, if the girl had eloped voluntarily and he did not entice or persuade her to do so. WHAT YOU MUST DO IMMEDIATELY: Regarding the FIR, the first thing that you can do is hire a lawyer and file an application before the High Court for quashing of the FIR under section 482 of Cr.P.C. that deals with inherent powers of the High Court whereby even the further investigation by Police may also be stayed by admission of such application as was done in Rajubhai Punjabhai Gamechi v State of Gujarat (criminal Miscellaneous Application no. 10982 of 2009)case by the Gujarat High Court. if the High Court is completely satisfied that the accused had no role to play in her disappearance and she eloped voluntarily, the court may quash the FIR and stay conducting of trial to avoid harassment of the boy and his family, or else it is ordinarily left upon the trial court to adjudicate upon the matter after completion of investigation. Then, you may file for anticipatory bail to avoid jail term u/s 438 of Cr.P.C. WHETHER THE FIR AGAINST THE BOYAND BOY’S FAMILY CAN BE MAINTAINABLE: The elements required for conviction under section 361 of the Indian Penal Code are: (a) that the girl should be a minor (b) should be taken away or enticed out of the keeping of her lawful guardian (c) without her lawful guardian’s consent. The term taking away or enticed has been interpreted a number of times specially with respect to elopement marriages. In this respect, S. Varadarajan v State of Madras, {1965 SCR (1) 243} is a landmark case wherein the Hon’ble Supreme Court distinguished between “taking away” and “allowing a minor to accompany” a person. In cases where the minor left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person, it cannot be regarded as taking away from keeping of lawful guardianship and thus, accused cannot be held guilty of kidnapping. There has to be some kind of inducement or active participation of the accused in formation of intention to leave her guardian’s custody (even if such inducement was made at some prior stage and not immediately prior to minor leaving her guardians’ house). But merely facilitating the fulfillment of her intention by eloping with her or helping her in her design of not returning to her guardian’s place is not taking away. There have been numerous such cases in recent past, wherein the courts have clearly reiterated this opinion. In Sunil Kumar v. State, NCT Delhi [I (2007) DMC 786], Manish Singh v. State, NCT Delhi [I (2006) DMC 1], the Delhi High Court has clearly stated that “If a girl of around 17 years runs away from her parents’ house to save herself from their onslaught and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy.” For section 366 as well, what has to be proved is that the girl was forced to marry or have illicit intercourse and if that action on part of girl was voluntary, the accused cannot be punished. Also, in all such cases of elopement marriages where the boy is charged with kidnapping, forcible marriage or sexual intercourse or even rape, girl’s statement is usually the primary evidence. If the girl states on record that she ran away with her will, and not on the basis of any promise to marry or under any threat or fear on injury, the boy is acquitted of all the charges. You may access such judgements as given in references. Thus, practically speaking, as of now you can try to contact them, and obtain a written statement from the girl that she eloped voluntarily and even if they are produced before magistrate when the police finds them, she cannot be forced to go back to her parents she can choose to live with your family or go to NariNiketan. Infact, Centre through Additional Solicitor General Indira Jaising submitted a report in march 2013 stating that : “It is submitted for the consideration of the Supreme Court that a direction be given that before any FIR is lodged under Section 361, 362 or 366 of IPC in relation to a woman who has attained the age of discretion, the police may be directed to ascertain the wishes of the woman and if she has voluntarily decided to marry a person of her choice, no case under these sections must be recorded on the complaint of the parents.” Since an FIR can be filed against the boy’s family under these sections only if there has been a direct involvement in “taking away” the girl i.e. if anyone of you took her away or forced her to marry the boy, which doesn’t seem to be your case. Thus, your family cannot be charged under these sections and only if there has been any kind of involvement or help on part of your family in their disappearance, then you can be charged only for the abetment of these offences and nothing further. Generally, such FIR is filed against the family only to harass them and pressurize the family only to catch hold of the couple. You can go for quashing of the same in a single application as abovestated. NON- REGISTRATION OF THE FIR AGAINST THE GIRL’S FAMILY BY THE POLICE STATION: Regarding your concern about non-registration of FIR against the girl’s family by the Police Station, you can approach the Superintendent of Police under section 156(3) of Cr.P.C. by giving a written application. If even this does not yield satisfactory result and FIR is not filed or no proper investigation is done, you can approach the Magistrate under section 156 (3) who may direct the filing of FIR and proper investigation as well. Please get in touch with us for hiring a lawyer or any other legal advice on this matter.
Agree Comment 1 Agree over 6 years ago

Sir, legally the age of marriage specified under the Hindu Marriage Act is 18 years for women and 21 years for men.[1] There have been number of cases where girls below 18 years of age elope with boys of their choice and wherein an FIR is filed against the boy for kidnapping and his family like in your case and also the boy’s family is harassed. But the Andhra Pradesh High Court in Makemalla Sailoo vs Superintendent of Police Nalgonda District[2] had held that although child marriage is an offence under the Child Marriage Restraint Act, such marriages are not void as per the provisions of both, the Child Marriage Restraint Act as well as the Hindu Marriage Act. Sec 361 of the Indian Penal Code (IPC) which is Kidnapping from lawful guardianship states that “whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” Here in your case although the girl is under 18 years of age but she was not forcefully taken away by the boy, in fact she herself accompanied the boy of her choice. Sec 366 of IPC punishes kidnapping, abducting or inducing a woman to compel her marriage. Bu again in your case the girl was not forced or compelled for marriage; she on her own will accompanied the boy of her choice. In Ravi Kumar v State , Ravi Kumar[3] who was 28 years old and Shikha Sharma who was 16 years and eight months old eloped together and got married on December 8, 2004 at the Arya Samaj Mandir, Delhi. A case of kidnapping was registered against Ravi under section 363 of IPC. Shikha did not want to return to her parent’s home so the magistrate decided to send her to Nari Niketan. Once Ravi was out on bail, Shikha gave a statement that the couple were in love and Shikha had called him and got married out of her own free will. The court observed in this case, that the girl had reached an age of discretion and out of her own choice had accompanied the man of her choice. The initiative had also come from the girl’s side. So, the High Court quashed the FIR against Ravi. In Manish Singh v State, NCT Delhi[4] , the Delhi High Court had ruled that once a girl or a boy attains the age of discretion and chooses a life partner, their marriage cannot be nullified on the ground of minority and that it is not an offence if a minor girl elopes and gets married against the wishes of her parents. If a police officer refuses to register your FIR then you can make an application to the nearest Judicial Magistrate, who will direct the police to register your FIR.[5] You can also file a case in the court for quashing the FIR against your brother and your family. It is also important that you make sure that a statement is taken from the girl wherein she states that she had eloped on her own free will and was not forced or compelled or threatened by your brother. [1] Sec 5 (c) (iii) of the Hindu Marriage Act, 1955 [2] II (2006) DMC 4 AP [3] 124(2005) Delhi Law Times 1 [4] I (2006) DMC 1 [5] Sec 156(3) r/w sec 190 of the Code of Criminal Procedure, 1973
Agree Comment 0 Agrees over 6 years ago

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