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Consensual love affair not a defence against criminal charge of kidnapping minor girl: SC

A view of Supreme Court of India. File   | Photo Credit: Sushil Kumar Verma

A consensual love affair is not a defence against the criminal charge of kidnapping a minor girl under 18 years of age, the Supreme Court has held in a judgment.

The law deems a minor incapable of giving lawful consent, a three-judge Bench led by Justice N.V. Ramana said.

“Section 361 of the Indian Penal Code (kidnapping from lawful guardianship) bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping,” Justice Surya Kant observed in the recent judgment authored for the Bench, which included Justice S. Abdul Nazeer.

The case concerned a young man found guilty of kidnapping a 15-year-old in 1998 in Gujarat. The man said they were in love and the girl had voluntarily run away with him to get married.

Though he was found guilty of rape by the trial court, the Gujarat High Court, in 2009, acquitted him of the crime, but held him guilty of kidnapping her by enticing her to flee with him.

“Such ‘enticement’ need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping,” the apex court upheld the High Court verdict on January 12.

The court referred to eyewitness accounts that the man had “drawn the prosecutrix out of the custody of her parents”.

“Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated,” Justice Kant noted.

However, the Supreme Court arraigned several mitigating factors against sending the man to jail after a span of 22 years.

It said there was no force used against her. Besides, the man himself was not older than 18 or 19 at the time of the crime, and it was admittedly a love affair. His was a “crime of passion”.

“His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively,” the court said.

Both the parties were now rehabilitated, in their forties, and settled with their own respective spouses and families.

“There was no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today,” the court said.

It reduced the man’s quantum of sentence to the period of imprisonment already undergone.

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Printable version | Mar 4, 2021 10:35:31 PM | https://www.thehindu.com/news/national/consensual-love-affair-not-a-defence-against-criminal-charge-of-kidnapping-minor-girl-sc/article33582012.ece

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