Rozia Akhter And Anr. vs State And Ors. on 17 November, 2017

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

561-A Cr.P.C. No. 170-S/2009 MP No.375-S/2009

Date of decision:- 17.11.2017

Rozia Akhter Anr. Vs. State of JK Ors.
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:
For Petitioner/Appellant(s) : None
For respondent (s) : None
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No

1. The petitioner has filed this petition under Section 561-A of the Code of
Criminal Procedure seeking quashment of the impugned FIR No. 128 of
2009, dated 22.11.2009, under Section 366/109 RPC, lodged against
petitioner No. 2 at Police Station Mendhar, Poonch, Jammu.

2. The case of the petitioners is that on 07.11.2009, the petitioner No. 1,
who is of 20 years of age got married to petitioner No. 2, whose age is
about 25 years according to the Muslim Personnel Law and subsequently
on 07.11.2009, the Marriage Agreement dated 07.11.2009 came to be
executed between the petitioners and ever since the petitioners have been
living together as husband and wife and petitioner No. 1 has been
discharging her marital obligations towards the petitioner No. 2 and the
marriage between the petitioners has also been consummated. On
08.11.2009 a Marriage Certificate came to be issued in favour of
petitioners. It is further stated that despite the fact that the petitioner Nos.
1 and 2 got married out of their own free will, choice and without any
compulsion, the said marital bond of Petitioners Nos. 1 and 2 did not go

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down well with the relatives of petitioner No. 1 and in particular the
respondent No. 7 (father of petitioner No. 1) and Respondent No. 8 (
uncle of Petitioner No. 1), owing to the reason that the said respondents
are from Rajput Muslim Dynasty, which is a high caste than the caste of
petitioner No. 2 and Private Respondents are sternly against the inter
caste marriage and furthermore they are hell bent upon marrying the
petitioner No. 1 with some other person against her wishes.

3. It is further stated that the Private Respondents are completely against the
marriage of petitioners and as such they did not take the liking for the
marital bond between the petitioners. The relatives of the petitioner No. 1
turned very hostile towards the petitioner No. 2 and in pursuit of their ill
designs and sinister motives started harassing the petitioners and also
threatened them of very fatal and dire consequences if the petitioners do
not budge in and terminate their marital relationship. Not only this on
07.11.2009 the brother of the petitioner No. 1 namely Mr. Mohammad
Javid along with his friend threatened the petitioners that they would be
killed in case they do not terminate their matrimonial relationship and this
forced the petitioners to file a complaint u/ss 341, 504 and 506 RPC
before the learned Chief Judicial Magistrate, Rajouri. In her preliminary
statement recorded by the learned CJM, at the time of filing complaint,
the petitioner No. 1 has inter-alia categorically stated that she has got
married to petitioner No. 2 out of her free will and accord and in fact the
marriage of petitioner No. 1 with petitioner No. 2 was agreed upon eight
years before.

4. It is also submitted that on various other occasions the private
respondents and many other relatives of petitioner No. 1 scolded the
petitioners and used very derogatory and abusive language against them.
It has been further stated that at the instance of the respondent No. 7, a
completely false, concocted, frivolous and vexatious FIR No. 128 of
2009, dated 22.11.2009, u/s 366/109 RPC came to be lodged at Police

561-A Cr.P.C. No.170-S/2009 Page 2 of 6
Station, Mendhar, Poonch, Jammu against the petitioner No. 2, wherein it
has been inter alia wrongly alleged that the petitioner No. 1 has been
abducted by the petitioner no. 2. In pursuance to the said FIR the officials
respondents and in particular the respondents No. 4, 5 6 have been
harassing the petitioners and have been making serious efforts and
attempts to arrest the petitioners and to subject them to illegal and
unwarranted confinement. The life and liberty of the petitioners has been
severely jeopardized. The petitioners are on the run from their lives and
due to serious threat to their life and liberty at the hands of respondents,
have not been able to enter District Poonch for last many days. The
petitioners are spending their days and nights like nomads for fear of
being apprehended by the concerned police of District Poonch in
pursuance to above referred false and unfounded FIR dated 22.11.2009.
The petitioners have every reason to believe that their lives would not be
spared in case they are caught and apprehended by the private
respondents with the assistance of the official respondents. In spite of
relentless efforts, representations and exhortations made by the relatives
of the petitioner No. 2, the official respondents and in particular
respondents Nos. 4, 5 6 have completely failed and refused to see the
reason in the fact that the petitioner No. 1 has not been abducted by the
petitioner No. 2, while as she on her own and out of her free will and
accord has joined the company of the petitioner No. 2 and has tied nuptial
knot with him in strict accordance with the law and as per the religious
rites, rituals and ceremonies. That the officials respondents and in
particular the respondents No. 4, 5 6 instead of coming to rescue of the
petitioners have proceeded against them by lodging a completely false
and frivolous FIR dated 22.11.2009 against the petitioner No. 2, while as
working hand in glove and in connivance with the private respondents.
The petitioners are forced to leave District Poonch and to take shelter in
Srinagar and there is every probability that the petitioners and in

561-A Cr.P.C. No.170-S/2009 Page 3 of 6
particular the petitioner No. 1 if apprehended by the private respondents
or their relatives their life would not be spared. It has been further stated
that the Hon’ble Court in a number of similar cases has been pleased to
issue orders/directions, thereby quashing similar FIRs therein and
providing protection to the petitioners therein. It has been stated that
because the respondents being a ‘State’ or its ‘instrumentalities’ under
Article 12 of the Constitution of India have to act in a just, fair and
reasonable manner and is precluded from acting illegally, arbitrarily and
the act of the respondents of lodging a false and fabricated FIR dated
22.11.2009 against the petitioner No. 2 and the inaction of the
respondents of not providing protection to the person of the petitioners so
as to live a peaceful domestic and marital life, is in a gross violation of
petitioners’ Constitutional and statutorily guaranteed rights and is thus
illegal, unwarranted and not in the large interest of the public and if left
as such would result in serious and grave miscarriage of justice. Because
of law prosecution can be launched only when the foundation therefore is
shown to exist and not otherwise. As demonstrated hereinabove that all
the essential ingredients of offence of kidnapping punishable under
Section 366 RPC are totally lacking in the police case, therefore, it is
evident and manifest that the impugned FIR dated 22.11.2009 has been
lodged against the petitioner No. 2 without any warranty of law and as
such the law justice demand that to secure the ends of justice, the
impugned FIR lodged against the petitioner No. 2, be quashed under the
appropriate order of this Hon’ble Court. It has been further stated that as a
matter of compliance with the Constitutional mandate enshrined in
Article 14 and 21 of the Constitution of India, guaranteeing the
petitioners equality before the law, equal protection of the law and
protection to the life and liberty, the respondents are obliged and
obligated upon to provide protection to the person of petitioners so as to
live a normal and peaceful life like husband and wife as they have been

561-A Cr.P.C. No.170-S/2009 Page 4 of 6
living under eminent and impending threat to their life and liberty.
Because of the illegal action of the respondents in refusing to recognize
the marital status of the petitioners is absolutely unjustified, unwarranted
and uncalled for. Here it would be very pertinent to take a considerate
view of the ratio as laid down by the Hon’ble Supreme Court in Lata
Singh versus State of U.P. and Anr., AIR 2006 SC 2522, wherein it has
been observed that if any boy or girl who is a major undergoes marriage
with a woman or man who is a major, the couple are not harassed by any
one nor subjected to threats or acts of violence, anyone who gives such
threats or harasses or commits act of violence either himself or at his
instigation, is liable to be taken to task by instituting criminal proceedings
by the police against such person and further stern action is taken against
such persons as provided by lawThis petition was filed before the High
Court of Jammu Kashmir at Srinagar Wing on 14.12.2010 and it was
transferred to the Jammu and Kashmir High Court, Jammu Wing.

5. From the last date of hearing no one was present and today also no one is
present on behalf of the parties to the petition. This FIR No. 128/2009 has
been registered on 22.11.2009 and at present eight years has passed.
Along with the petition, photocopy of the Marriage Agreement and
photocopy of Nikahnama has been annexed. Even statement of petitioner
No. 1 recorded before Chief Judicial Magistrate, Rajouri has also been
attached in which she has stated that she has married with petitioner No.

2.

6. As no one is coming for the last seven years and so this Court is of the
view that the parties would have amicably settled their dispute and thus,
the petition has become infructuous. Further, there is ample of evidence
on record that petitioners have married each other; so if there is any FIR
No.128 of 2009, dated 22.11.2009, under Section 366/109 RPC,
is pending till now that can be brought to its logical conclusion by

561-A Cr.P.C. No.170-S/2009 Page 5 of 6
concerned police, after got recording the statement of prosecutrix/
petitioner no.1 u/s 164-A
Cr.P.C.

7. This petition is disposed of accordingly.

(Sanjay Kumar Gupta)
Judge
Jammu
17.11.2017
Pawan

561-A Cr.P.C. No.170-S/2009 Page 6 of 6

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