Vimal Kumar Mishra vs State of M.P

The present petition has been filed by the petitioners herein challenging the order framing charges dated 28-07-2017 passed by the Ist

Additional Sessions Judge, Betul in Sessions Trial No. 400180/16 ( State of M.P through Police Station Sarni District Betul Vs. Vimal Kumar

Mishra and others).

By the said order, the trial court has framed charges against the petitioners herein under Sections 498-A and 306 of IPC. Aggrieved by the said

order, the present criminal revision has been preferred.The petitioner No. 1, is the husband of the deceased and the petitioner No. 2 and 3 are the

father-in-law and mother-in-law respectively of the deceaased Nisha Mishra.

The case of the prosecution is that the marrige of the petitioner No.1 took place with the deceased in the year 2007. After the marriage of the

deceased, she stayed with her parents for seven years and the ''gauna'' ceremony took place in the year 2014. At the time of marriage, the

deceased was 15 years of age. She is stated to have committed suicide on 26-01-2016 by hanging herself. The police had filed the charge-sheet

against the petitioners herein for the offence under Section 304-B and 498-A/34 of IPC. The learned trial court upon appreciation of evidence,

came to the conclusion that as over seven years had passed since the performance of the marriage which was in the year 2007 and the deceased

committed suicide in the year 2016 i.e, almost 9 years after the marriage, the offence under Section 304-B is not made out. However, on the same

facts, the learned trial court held that an offence under Section 306 of IPC is made out and therefore, framed charges against the petitioners as

stated hereinabove.

Learned counsel for the petitioners has taken this court through the statements of the father, mother and brother of the deceased and has

impressed upon this court that no offence under Section 498-A and 306 of IPC is made out against the petitioners by their statement.

Learned counsel for the State on the other hand has submitted that the learned trial court has wrongly ommitted the offence under Section 304-

B of IPC as ''gauna'' of the deceased with the petitioner No. 1 had taken place in the year 2014 and the deceased died two years thereafter. He

has argued that the period of limitation for the purpose of Section 304-B would be counted from the date of ''gauna'' because before that she was

living separately from the petitioner No. 1. In this regard, he has drawn the attention of this court to a card of the ''gauna'' ceremony which he has

stated is similar to a marriage ceremony itself. On the basis of the said invitation card, learned counsel for the State has tried to impress upon this

court that the marriage actually took place in the year 2014.

Per contra, learned counsel for the petitioners has submitted that in the said card, nowhere is it written that the invitation was for a marriage.

There is no ceremony of ''saptapadi or feras mentioned anywhere in the said invitation card. The marriage between two hindus is governed by

Hindu Marriage Act,1955. Section 7 of the Hindu Marriage Act, states unequivocally that where between the parties, the practice of saptapadi is

followed, the marriage is complete upon the 7th step being taken. Learned counsel for the State has submitted that 2014 would be the date for

reckoning the marriage, as the deceased was a minor at the time of marriage in the year 2007. Section 5 of the Hindu Marriage Act, clearly states

that a boy must be 21 years of age and girl 18 years of age to solemnise a marriage under the Act. However, where such a marriage is taken

place, the legislature was conscious of the fact that in several rural areas of the country marriages between the children are common but, however

to ensure that it does not result in illgitimacy of the children or the marriage itself, provided in Section 12 of Hindu Marriage Act, an option for an

aggrieved party to have the marriage declared as void through a court of competent jurisdiction.

As regards the date of marriage, the same is not in dispute as the father, mother and brother of the deceased themselves have stated that the

marriage was performed in the year 2007. Therefore, the learned trial court has rightly arrived at the conclusion that Section 304-B would not be

applicable in this case. However, as regards offence under Section 498-A, the statement of the father, mother and brother of the deceased prima

facie discloses the offence under Section 498-A and the contradictions therein are the subject matter of a trial. Under the circumstances, the

charge of offence under Section 498-A has rightly been framed and the same is sustained.

As regards offence under Section 306 of IPC, the learned trial court has framed charge under Section 306 only because it was of the view that

the offence under Section 304-B is not made out. The reasonings and approach of the learned court below is erroneous. There must be specific

allegations in the 161 statement, which reflects that the cruelty was of such an intensity or that the circumstances created by the petitioners was

such, that besides committing suicide, the deceased had no other option. The allegations in the 161 statement do not prima facie satisfy the

ingredients of Section 107 of IPC of abetment of the offence.

Under the circumstances, the offence under Section 306 of IPC is not made out against the petitioners and the charge framed under Section 306

of IPC is set aside. The impugned order dated 28-07-2017 stands modified to that extent and the petitioners shall stand trial for the offence under

Section 498-A.