Anversinh alias Kiransinh Fatesinh Zala v. State of Gujarat (2021)

This is the modern statement of the rule, and it is the one to cite for the proposition that students most often get wrong: where the girl is under eighteen, her consent is no defence to a charge of kidnapping from lawful guardianship, however genuine the affair.

It also does something the older cases do not. Having held the law to be inflexible on guilt, the Court then used sentencing to do justice in a case of a young couple of the same social class, and it distinguished, in terms, the cases in which an adult misuses power, wealth, status or age against a child. That contrast is the material for the best paragraph an answer on this head can contain.

On the night of 14 May 1998 a father returned from work to learn that his eldest daughter, sixteen years old, had not come home. She had studied to Class VII and worked as a maid. A watchman at her workplace said she had missed her second shift and had last been seen coming out of a vacant bungalow with the appellant, who had then left for his village with her. A police complaint was registered on 16 May; the two were traced to a farm and brought back on 21 May 1998. Her school record put her date of birth at 8 February 1982.

In her deposition she said she had been caught on her way to work, taken by auto-rickshaw to a bus stand and transported to the appellant's village, repeatedly raped and pressed to marry him. In cross-examination she admitted being in love with the appellant, having had consensual intercourse with him earlier, and having met him outside her home before; it also emerged that during the alleged abduction she sat with other passengers while he sat in front, that she spent a week in his village, and that they went to work together and lived as husband and wife. The investigating officer admitted that her earlier statement had spoken of a relationship of a month's standing and of the two running away together after being caught by a guard, and had not alleged that she was forcibly seized.

The Sessions Court convicted the appellant of rape and of the kidnapping offences. The High Court set aside the rape conviction but upheld the kidnapping charges and the sentence of five years' rigorous imprisonment.

1. The conviction for kidnapping was upheld. The plea that, there being a consensual affair, the girl joined him voluntarily could not be accepted, given the unambiguous language of the statute and the admitted fact that she was below eighteen. The consent of the minor is no defence to a charge of kidnapping.
2. The sentence was reduced to the period already undergone, and the appellant was set free.

1. The ingredients. There must be an act of enticing or taking, in addition to the child's minority and the care or keeping of a lawful guardian. Enticement need not be direct or immediate in time and can be effected by subtle actions such as winning over the affection of a minor girl.

1. What is not enough. The mere recovery of a missing minor from the custody of a stranger does not by itself establish kidnapping; where the prosecution fails to prove that the removal was committed by or at the instigation of the accused, guilt cannot be brought home.

1. Why it was enough here. Besides the girl being recovered from his custody, the appellant admitted intercourse and an intention to marry her, and the witnesses established enticement and that he had induced her to come to a designated place to accompany him. Nor was it his case that he had no active role. There was also little to suggest that she was aware of the full purport of her actions or had the maturity to take care of herself: she was young and not much educated.

1. Sentencing, separately. Several factors relevant to punishment were not relevant to guilt: no force, no pre-planning, no weapon and no vulgar motive; the appellant was himself only about eighteen or nineteen, at the precipice of majority, so that his actions at an impressionable age were to be treated with hope of reform; more than twenty-two years had passed, both parties having settled with their own families; the crime was one of passion with no antecedents and a very low risk of recidivism; and, unlike the cases in which an older or wealthier man works on a child, there was no grotesque misuse of power, wealth, status or age, the two belonging to a similar social class, so that but for her age they might have married. The offence here was mala prohibita rather than mala in se, and an equitable sentence was called for. The Court nevertheless restated the general principle that undue sympathy in imposing an inadequate sentence harms the justice system, and that the sentence must be commensurate with the gravity of the offence, having regard to the victim and to society at large.

It opens the consent question. Where a problem gives you a girl below eighteen who went willingly, state this case: consent is irrelevant, only the guardian's consent takes the case out of the section, and enticement may be subtle and remote in time. Then use its sentencing passage to show how the law distinguishes the predatory adult from the young couple, contrasting it with the case of the industrialist who worked on a schoolgirl for over a year.

It disposes of the defence of a consensual love affair, and the argument that recovery of the girl from the accused's company proves the offence without more.

It does not decide anything on the rape charge, which had been set aside, and it lays down no rule that sentences in this class of case are to be reduced; the reduction rested on the particular facts. Note also that the age of the minor is the fact that decides the case, so the proof of age — school records, a birth certificate — is where such a prosecution is won or lost, which is the practical link to the argument for compulsory registration of marriages and of births.