HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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S.B. Criminal Misc. Bail Application No. 7706/2020

Chhela Ram S/o Mangi Lal, Aged About 23 Years, Village Meharwas, P.S. Jayal, District Nagaur. (Presently Lodged In District Jail Nagaur).

----Petitioner

----Respondent

Versus

State of Rajasthan through PP

For Petitioner(s) : Mr. Raghuraj Sharma through VC. For Respondent(s) : Mr. Laxman Solanki, PP.

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

06/08/2020

In wake of onslaught of COVID-19, as an abundant caution, hearing of the cases shall be only through video conferencing.

The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in judicial custody in connection with F.I.R. No. 40/2020, Police Station Jayal, District Nagaur, registered for the offences under Sections 363, 366 and 376 of the Indian Penal Code.

Learned counsel for the petitioner appearing through video calling stated that as per the birth certificate of the victim Ms. "N", placed on record and the other documents, the victim Ms. "N" was major on the date of marriage, i.e., 14th May, 2020. Learned counsel also stated that the affidavit executed between the petitioner and the victim Ms. "N" with regard to marriage and the coloured photographs of the marriage including the visual

photographs have also been submitted along the present bail application. Learned counsel further stated that in view of the affidavit and the photographs, as referred above, the victim Ms. "N" is the legally wedded wife of the petitioner. Learned counsel stated that the FIR in question has been filed by the father of the victim Ms. "N". With these submissions, learned counsel prayed that the benefit of bail may be granted to the accused-petitioner.

On the contrary, learned Public Prosecutor, while opposing the bail application of the accused-petitioner, stated that during the course statements given by the victim Ms. "N" under Sections 161 Cr.P.C. and 164 Cr.P.C., she has supported the story of the prosecution. Learned Public Prosecutor also stated that the petitioner and the victim Ms. "N", both belong to the same 'Gotra' and, therefore, the alleged marriage is not valid.

In reply to the above submission of the learned Public Prosecutor, learned counsel for the petitioner has relied upon a judgment of Hon'ble the Supreme Court rendered in the case of Shakti Vahini Vs. Union of India & Ors., reported in (2018) 7 SCC 192. Learned counsel has drawn attention of this Court towards page No. 205, para No. 204, which reads as under:-

"2.4 Sagotra marriages are not prohibited by law, whatever may be view in olden times. The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispel any doubts in this regard. The Act expressly declared the validity of marriages between the Hindus belonging to the same "gotra" or "pravara" or different sub-divisions of same caste. The Hindu Marriage Act does not prohibit sagotra or intercaste marriage."

Heard and considered the arguments advanced by the learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

This Court is of the opinion that as per the documentary evidence available on record, the victim Ms. "N" was major on the date of marriage and as per the affidavit executed between the petitioner and the victim Ms. "N" and upon perusal of the coloured photographs, it appears that they are legally wedded husband and wife. This Court is further of the opinion that prima facie, as per the judgment, as referred above, cited by the learned counsel for the petitioner, the petitioner and the victim Ms. "N" are the legally wedded husband and wife, even if both belong to the same "gotra".

Having regard to the facts and circumstances of the case, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted.

Consequently, the bail application is allowed. It is ordered that the accused-petitioner - Chhela Ram S/o Mangi Lal, arrested in connection with F.I.R. No. 40/2020, Police Station Jayal, District Nagaur, shall be released on bail provided he furnishes a personal bond of Rs.50,000/- and two surety bonds of Rs.25,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.

(DEVENDRA KACHHAWAHA), J.

57-Mohan/-