Madras High Court: R. Pongiappan, J., observed that:
“…saptpadi for Hindus is the necessary requirement, which if completed make a marriage valid in the eyes of law provided the parties are of sound mind and don’t fall within the prohibited degrees of relationship with each other.”
Instant appeal was filed to set aside the judgment and conviction passed by Sessions Judge.
Accused was charged for the offences under Sections 366 and 376(1) of Penal Code, 1860.
Analysis and Decision
Bench noted that in respect to alleged marriage, PW 10 who is the victim girl had stated before the trial Court that on the date of occurrence, both herself and the accused ran away from the village and accused tied thali to her. In light of the said evidence, it appeared that the victim girl had also consented for the marriage.
Additional Public Prosecutor appearing for the State contended that since the alleged marriage had happened to the victim was at the age of 15 years and 10 months, the said marriage is not legally valid and also the same has not been solemnised as per Hindu rites and customs.
This Court also found that the girl had not completed the age of 16 years at the time of above-stated alleged marriage for which she consented
Further, the Bench observed that during the time of occurrence, the accused had induced the victim girl to go to Palani and afterwards, he tied a thali, Section 361 of IPC was referred which talks about the “kidnapping from lawful guardianship”.
Applying the abovesaid provision along with Section 366 IPC, Court stated that the victim girl was kidnapped for the purpose of marrying her.
“… a marriage in which either the girl is below 18 years of age, or the boy is below 21 years of age is child marriage.”
Court expressed that in our country, the essential condition for the validity of any marriage is solemnization of the religious ceremonies prescribed by the religion to which the parties belong.
In respect to the instant matter, it was found that the accused and victim girl had not performed the necessary religious ceremonies prescribed by the religion and since the victim girl was of 16 years of age, the alleged marriage with the accused was void.
With regard to alleged forcible sexual intercourse, it was found that victim girl stayed the accused for a considerable period but during that time, she did not seek for help or even try running away from the place, the said attitude of the victim girl proves that the alleged sexual intercourse had happened only with her consent.
Section 375 IPC
As per the definition of Section 375 IPC, since the victim girl had not completed the age of 18 years at the time of occurrence, according to 6th description of the said Section, Court found that the accused had committed an offence of rape.
Therefore trial Court’s finding of charging the accused under Sections 366 and 376(1) IPC was within four corners of law and no infirmity was found in the said findings.
Since both the victim girl and accused got married themselves and separated along with respective spouses, Court modified the sentence as 5 years instead of 7 years under Section 366 IPC and for the offence under Section 376(1) IPC, Court modified the sentence as 7 years instead of 10 years.
Hence, the Criminal Appeal was partly allowed.[Prakash v. State, 2020 SCC OnLine Mad 6025, decided on 30-11-2020]
Advocates who appeared before the Court:
For Appellant: B. Thirumalai for S.Nagarajan
For Respondent: S. Karthikeyan Additional Public Prosecutor