The Bombay high court held in a recent order that if a girl – even if she is a minor but has attained the “age of discretion” – leaves her parents or guardians voluntarily, knowing “the full import of what she was doing”, the boy she eloped with cannot be accused of having kidnapped her.
The court was hearing a petition filed by a Mumbai resident who wanted the court to quash a kidnapping charge the police invoked against him.
Sagar Shivaji Tambe had been accused of kidnapping by his partner’s parents. According to his plea, he and the girl eloped in 2015 as their families were against their relationship. At the time the girl was 17 years and nine months old. They waited until she was 18 before getting married. However, the girl’s family had filed a police complaint against Tambe and he was arrested. However, he argued that because the girl had willingly eloped with him and the two had waited to attain majority before getting married, they had not broken the law at any stage. His wife repeated this in her testimony.
The prosecution, however, argued that though the couple’s marriage was legally valid, the girl was a minor when the two eloped and thus Tambe had taken her from her parents illegally.
The court, however, ruled that although the girl had not attained majority at the time, she had reached the “age of discretion to understand her own welfare, which must be a paramount consideration for granting of her custody”.
Courts usually consider a person aged 16 years or older to have attained the age of discretion, which means they are capable of understanding the consequences of their actions and taking a well-thought-out decision.
The court added said that in cases such as these, where there is a conflict between provisions concerning ‘age’ and ‘consent’, the latter should get priority.
“We are of the view that the offence of abduction is not made out since the girl had consented to accompany the petitioner. They are now happily married. She has stated before us that she has left her parental home on her own. We are satisfied that she was aware of the decision which she was taking and was capable of understanding the consequences of her action,” the court said.