M A I N   N E W S

Nishan’s fate hinges on Shruti’s word
May escape trial under stringent laws if victim stands by him, say experts
Saurabh Malik/TNS

Chandigarh, October 24
The knot Nishan Singh tied with trouble by marrying a minor may not turn into a noose, if Shruti stands by her man. Their marriage may be "voidable", as Shruti is a minor; and their case may be covered under the Child Marriage Restraint Act and the Prohibition of Child Marriage Act. But the provisions of both the Acts are not too stringent.

Otherwise also, Section 361 of the Indian Penal Code, dealing with the kidnapping of a minor from her lawful guardian, may not be applicable to their case, if Shruti keeps insisting she went with Nishan Singh on her own.

Age of marriage

In India, a male cannot marry below the age of 21 and female cannot tie the knot below the age of 18. The age has even been specified under the Hindu Marriage Act. But under the Hindu law, child marriage is valid.

The law in this regard became clear in 2006 with the enactment of the Prohibition of Child Marriage Act, wherein such marriages were made voidable at the option of the minor spouse.

The courts have also held that marriage contracted with a female of less than 18 years of a male of less than 21 years of age would not be a void marriage, but voidable one. A voidable marriage is a valid marriage, till it is “avoided”. If one of the parties does not petition for annulment of marriage, it will remain valid.

Penal provisions

Marriage below the specified age can lead to penal consequences. The Prohibition of Child Marriage Act, 2006, says: “Whoever, being a male adult above 18 years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to 1 lakh rupees or with both.

The punishment is even milder under Section 3 of the Restraint Act. It says: “Whoever, being a male above 18 years of age and below 21, contracts a child marriage, shall be punishable with simple imprisonment which may extend to 15 days, or with fine which may extend to Rs 1,000 or with both. The Acts make it clear that an accused may even get away by just paying the fine.

Kidnapping law

Punjab and Haryana High Court advocate SK Garg Narwana says Section 361 of the IPC too may not be attracted in the case. Quoting the Section, Narwana says: “Whoever takes or entices any minor under 16 years of age if a male, or under 18 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”.

But, if Shruti says she left her father’s protection voluntarily, and was neither "taken" away or "enticed", Section 361 is not attracted. His assertion is substantiated by a ruling in “S. Varadrajan versus State of Madras” case reported in AIR 1965 SC 942. It has been held in the case: “Where facts indicate that a girl left her father’s protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out.”

Defining rape, Section 375 of the IPC says a man is said to have committed “rape” when, among other things, he has established a physical relationship with or without the girl’s consent, if she is under 16.

Section 366A also deals with inducing, forcing or seducing a minor girl under the age of 18 years into to “illicit intercourse”. Interpreting the provisions of law without commenting on the merits of the Shruti case, Additional Solicitor-General of India Mohan Jain says it’s for the victim to come forward and level allegations of rape in any case.

No one can come out with the charge on the victim’s behalf; not even her parents. Even if the girl is pressurised into levelling the allegations, she can always come to the rescue of the accused during the trial by going back on her statement and refusing to identify him as rapist.

Medical test

Shruti so far has refused to get herself medically examined. Narwana says legally speaking she cannot be compelled to go in for a medical examination, as she is not an accused in the case. The law takes its own course, but there is no denying the fact that Shruti as a complainant can change the route to take Nishan Singh away from the prison bars.