SEEDLING SCHOOL OF LAW & GOVERNANCE 2020-21

BEFORE THE HON'BLE

SESSION’S COURT, JAIPUR

STATE OF RAJASTHAN
(COMPLAINT)
V.
XYZ
(RESPONDENT)

CASE CONCERNING IN RELATION TO SECTION 363, 366 AND 376 OF

INDIAN PENAL CODE, 1860

MEMORIAL ON BEHALF OF COMPLAINT

SUBMITTED TO SUBMITTED BY
MR. YATISH PACHAURI Monika Sharma

ASST. PROF. (SSLG) LLB

3rd SEMESTER

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 TABLE OF CONTENTS

Index of Authorities.......................................................................................................................3

Statute Referred.........................................................................................................................

Books Referred..........................................................................................................................

Statement of Jurisdiction..............................................................................................................4

Statement of Facts..........................................................................................................................5

Issue Raised………………………................................................................................................7

Argument advanced……………………………………………………………………………..8

Prayer...........................................................................................................................................10

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 INDEX OF AUTHORITIES

STATUE REFFERED

 THE INDIAN PENAL CODE,1860

 THE CRIMINAL PROCEDURE CODE,1973
 CHILD MARRIAGE RESTRAINT ACT, 1929

BOOKS REFFERED

 Indian Penal Code -7th edition -K D Gaur

 The Indian Code-8th edition -Prof .T.Bhattacharyya

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STATEMENT OF JURISDICTION

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 In accordance with section 2091 of The Criminal Procedure Code,1973 the complaint hereby
respectfully come under the above mention article to this honorable Session’s Court.

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Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the
accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session,
he shall-
(a) 1 commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject
to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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 STATEMENT OF FACTS

 On 01-09-2020 at about 17.15 hours when the wife of the complainant returned from
the market purchasing vegetable, she could not find her daughter at home.
 On enquiring from one Ganga, she came to know that the accused had come to their
house and had a talk with their daughter.
 Thereafter, the accused went towards the market and after some time, Prosecutrix
also went towards the market.  
 The complainant inquired from the shop of the uncle of the accused and he was told
that the accused and the Prosecutrix had gone towards Indira gandhi Nagar Jaipur
Rajasthan Bus Stand.
 The complainant rushed to the Indira Gandhi Nagar bus stand, but could not find
the accused or the Prosecutrix there.
 It is also the case of the prosecution that the son of the uncle of the accused told that he
had seen the accused and the Prosecutrix at the Indira gandhi Nagar bus stand some time
ago. But the Prosecutrix could not be traced.
 The F.I.R to the said effect was registered by the complainant on 05-09-2020 with Indira
gandhi Nagar police station.
 Two days after the said complaint, the accused along with Prosecutrix surrendered
himself before the police on 07-09-2020.Thereafter, necessary panchanama came to be
drawn and statements of the accused and Prosecutrix were recorded.
 They were also sent for medical examination because the age of the prosecutrix was less
than 16 years of age as per the complainant.
 Clothes of the accused and Prosecutrix were seized in the presence of panchas and were
sent for analysis to FSL, Hyderabad.  The investigation revealed sufficient evidence
against the accused. This led to his formal arrest on 30-11-2020. 
 In his statement, the accused stated that he was innocent. His defense was that he and
Prosecutrix were in love with each other and had tied a nuptial knot with each other, with
the free consent of the victim. But It was primarily on the ground that the Prosecutrix was
less than 16 years of age on the date of the incident i.e.01-09-2020. Marriage between
them was solemnized as per Hindu rite on 09-03-2020 at Indira gandhi Nagar, Jaipur
Rajasthan which was got registered as well. 
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 The accused produced memorandum of marriage depicting registration of marriage,
issued by the marriage Registrar, Indira gandhi Nagar, Jaipur Rajasthan. The accused,
thus, maintained that a false case was filed against him. 

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 ISSUES RAISED

 ISSUE1 :WHETHER IMPLICATED AND CHARGED UNDER SECTION

363, 366 AND 376 OF IPC SHALL BE VALID OR NOT .

 ISSUE2 :WHETHER MARRIGE BETWEEN THEM SHALL BE VALID OR

NOT.

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 STATEMENT OF ARGUMENT ADVANCED

I. WHETHER IMPLICATED AND CHARGED UNDER SECTION 363, 366 AND

376 OF IPC SHALL BE VALID OR NOT.

Section 363 of Indian Penal Code states the punishment for kidnapping.Whoever kidnaps any
person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.
According to section 366 of IPC Whoever kidnaps or abducts any woman with intent that she
may be compelled, or knowing it to be likely that she will be compelled, to marry any person
against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it
to be likely that she will be forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of
abuse of authority or any other method of compulsion, induces any woman to go from any place
with intent that she may be, or knowing that it is likely that she will be, forced or seduced to
illicit intercourse with another person shall be punishable as aforesaid.
Section 376 states the Punishment for rape.—Whoever, except in the cases provided for by sub-
section (2), commits rape shall be punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for life or for a term which may
extend to ten years and shall also be liable to fine unless the women raped is his own wife and is
not under twelve years of age, in which cases, he shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or with both: Provided that the
court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than seven years.Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he
is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman
in his custody as such public servant or in the custody of a public servant subordinate to him; or

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(c) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a woman’s or children’s insti-
tution takes advantage of his official position and commits rape on any inmate of such jail,
remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position
and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to fine: Provided that the
Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment of either description for a term of less than ten years.
In the present case according to the facts it can be said that the age of the girl is below 16 years
of age and and the investigation revealed sufficient evidence against the accused.so the accused
is liable to charged under section 363, 366 and 376 of IPC.
The learned trial court, referring the judgement of the supreme court in State of Rajasthan v.
Noore Khan2, Gurucharan Singh v. State of Haryana3 and Virendra Singh v. State of
Haryana4 in which it has been laid down that sexual intercourse by a man with a woman with or
without her consent when she is under the age of 16 years amounts to rape, rightly concluded
that because the victim was below the age of consent, therefore, her consent is not material. In
Rasool v. State5 it has been held that the consent of minor is immaterial for the offence u/s
363 IPC and it is only the consent of the lawful guardian that takes away the case from the
purview of section 363 IPC. From the statement of the victim and the accused himself, it was
very much established that the accused took the victim with him from the lawful guardianship of
the informant. The fact is established that the accused-appellant took the victim who was under
the age of 16 years out of lawful guardianship of the informant and this he did in order to compel
her to marry with him and for illicit intercourse, as such the offence under section
363 and 366 IPC was established. Sexual relation being the admitted fact by the accused himself,
looking to the age of the victim which was below 16 years. It is also established that he
committed rape with victim.

2
AIR 2000 SC 1812
3
AIR 1972 SC 2661
4
2007 Cri. LJ 2459 (P&H)
5
1976 Cri. LJ 363 (ALL)
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 II. WHETHER MARRIGE BETWEEN THEM SHALL BE VALID OR NOT.

It needs to be pointed out that the Child Marriage Act, 1929 has been enacted to eradicate the
evil of child marriage and it applies to all religion. It provides that child marriage means a
marriage to which either of the contracting parties is a child and a child means in case of male,
under 21 years in age and in case of female, under 18 years in age. It provides punishment for
such male above 18 years in age contracting marriage with a female below 18 years in
age. Section 5 of the Act provides punishment for a person solemnising a child marriage. The
liability of such person under criminal law is that of the abettor. The offence is cognizable for
certain purpose and the Code of Criminal Procedure applies thereto. The court can take
cognizance of any offence under the Act before the expiry of one year. In this instant case the
age of the victim has been established to be below 16 years whereas the age of the accused is
more than 21 years at the time of incident. The court is constrained to observe that such persons
must be treated to be abettors within the meaning of the Child Marriage Restraint Act.
Sometimes, it is seen that marriage certificate is also issued in the name of temple or committee
etc. It is observed that if such marriage has been solemnized with a female child below the age of
18 years and such persons or institutions of whatever religion have not assured themselves with
regard to the age of the victim child, criminal law will apply to them and investigating agencies
should also investigate the offence in the light of the Child Marriage Restraint Act.
As a result of the ineffectiveness of Child Marriage Restraint Act, 1929, a new legislation to
replace it was enacted in the form of Prohibition of Child Marriage Act, 2006. The Act envisages
preventing child marriages with enhanced punishments of rigorous imprisonment for two years
and/or fine of INR 1 lakh. It defines a child to mean a male below 21 years and female below 18
years. A minor is defined as a person who has not attained the age of majority as per the Majority
Act. There are provisions for maintenance of the girl child. The husband is liable to pay the
maintenance in case he is a major. In case the husband is a minor, his parents would be liable to
pay the maintenance. The legal status of a child marriage is voidable at the option of the parties.
However, if the consent is obtained by fraud, deceit or if the child is enticed away from his
lawful guardians and if the sole purpose is to use the child for trafficking or other immoral
purposes, the marriage would be void. The Act also provides for the appointment of a Child
Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness
regarding the same.
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The Delhi High Court in Lajja v State6 held that the PCMA prevails over personal laws. The
same was reiterated by Karnataka High Court in Seema Beghum v State7 In 2015, the Madras
High Court declared that PCMA applies to every community.
With the above mention facts and cases it can be said that the marriage between them is not
valid. Because it does not complete essentials of valid marriage and the age of the girl is below
16 years according to the present facts in the case. The marriage is done according to Hindu
Marrige Act but the Prohibition of Child Marriage Act prevails and it states that valid age of
marriage of girl is 18 years and the male is above 21 years.

6
WRIT .p. no. 338 (2008)
7
WRIT Petition No. 75889
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 PRAYER

In the light of issues raised, authorities cited and arguments advanced, the counsel on
behalf of the complaint humbly requests the court to adjourn and declare that:

1. The implicated and charged under section 363,366 and 376 shall be valid.

2. The marriage between them shall be invalid.

Any other order it deems fit in the interests of justice, equity and good conscience

Counsel for Complaint

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