Run Away Marriage With Minor- A minor Girl aged 16 years

Run away marriage – A minor Girl aged 16 years 

According to Modi’s Medical Jurisprudence and Taxicology the fusion of the epiphysis differs with the girls of different States of India. Modi has mentioned instances of Bengalis, Punjabis and Madrasis. About the medial epicondyle he is of the view that in the females in U.P. it fused between ages of 14 to 15.

Object of Section 361 I.P.C-

The object of Section 361, I.P.C. is evidently to protect minors from being kidnapped out of the lawful guardianship on the ground that the minor does not now and has not the capacity to know the full import of what she is doing. There may be exceptional cases where a minor below 18 years of age would know and have a much greater capacity to know the full import of what she was doing than a major.’ That a College girl student of second year B.Sc. class, certainly know and had the capacity to know the full import of what she was doing. In fact she had much greater capacity than an ordinary woman above 18 years of age. But on the other hand   the same age of minor girl, belong to backward caste. She was not educated beyond the sixth class.  she could know or have had the capacity to know the full import of what she was doing.

Clear view of Sections of I.P.C regarding Kidnapping and Rape – 

Under Sections 363 I.P.C. and 376, I.P.C. Section 363, I.P.C. provides for a punishment for the offence of kidnapping from lawful guardianship, and Section 376, I.P.C. provides for punishment for the offence of rape. The offence of kidnapping from lawful guardianship has been defined in Section 361, I.P.C. and the offence of rape under Section 375, I.P.C. Section 361, I.P.C. runs as follows.

“361. 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.

Explanation – The words ‘lawful guardian’ in this section include any person lawfully entrusted with the care or custody of such minor or other person.

It would be apparent from the provisions of this section that for this offence the age of the minor female should be below 18 years.

Section 375, I.P.C. runs as follows: –

“375. A man is said to commit ‘rape’ who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: –

First – Against her will.

Secondly – Without her consent.

Thirdly – With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.

Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With or without her consent. When she is under sixteen years of age.

Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape.”

It is apparent from the provisions of Section 375, I.P.C. that the consent of a girl below 16 years of age for sexual intercourse will be immaterial. If she is above 16 years of age and her consent has not been obtained by putting her in fear of death or of hurt or by deception inducing her to believe that the offender is another man to whom she is or believes herself to be lawfully married sexual intercourse committed with her consent would not amount to an offence of rape.

It would thus appear that while the age material under Section 362, I.P.C. is 18 years, it would be 16 years under Section 375, I.P.C. In a case, where is no evidence of deception, coercion or use of force. On the other hand, the girl herself definitely stated that sexual intercourse was committed with her free consent. Since it has not been established that she was below 16 years of age, the conviction of the appellant under Section 376, I.P.C. cannot be upheld.

It has, however, been found to be clearly established that she was below 18 years of age. The learned counsel for the appellant has contended that no offence under Section 363, I.P.C. also has been established because there was no case of enticement and it had not been established that the girl was taken out of the keeping of a lawful guardian. Stress has been laid on the phrase “Whoever takes or entices any minor ” of Section 361, I.P.C. Reliance is also placed on the case Varandarajan v. State of Madras, A.I.R. 1965 SC 942.

Difference between Takes and Entices –

It will be evident that the section uses two different words “takes or entices”. It is thus clear that the Legislature itself contemplated a difference between the meanings of the words “Takes and entices”, and that it is not necessary for taking of a minor out of the keeping of her lawful guardian that there should also be an enticement of the minor. Even if there is no evidence of enticement, and it has been established that the minor has been taken out of the keeping of the lawful guardian and that the minor girl is below 18 years (in the case of a female) an offence of kidnapping has been committed. What we have to see in this case is, whether the girl who has been proved to be below 18 years of age, was taken out of the keeping of the lawful guardian of the minor. It is true that Madholkar, J. speaking for the Supreme Court in Varandarajan’s case created a distinction between taking of a minor and allowing a minor himself to accompany a person. But Madholkar, J. himself went on to say “The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of Section 361 of the Indian Penal Code.

We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joined the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.”

Marriage is Void –

Marriage of a minor child to be void in certain circumstances. – Where a child, being a minor –

(a) is taken or enticed out of the keeping of the lawful guardian; or

(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes

Definitions of Minor as per the Prohibition of Child Marriage Act, 2006 –

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.”