HIGH COURT OF JAMMU AND KASHMIR
491-A No.01/2013 Date of order: 01.02.2019
Champa Devi Vs. Anoop Kumar and anr.
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
For Petitioner(s) : Mr. Ashok Sharma, Advocate
For respondent (s) :
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 491 Cr.P.C., petitioner
seeks setting free the minor male children in the age, group of 6 and 9,
from the custody of respondent Nos.1 and 2.
2. The case of the petitioner is that she was married to respondent No.1 in
the year 2001. It is stated that father of the petitioner had expired before
the marriage of the petitioner and her brothers, who are poor persons
arranged the marriage of the petitioner with respondent No.1 in great
hardships after arranging expenses of marriage. It is further stated that
after some months of the marriage of the petitioner, the respondents
along with one Ram Swaroop S/o Jia Lal started mentally harassing the
petitioner on one pretext or the other by telling the petitioner, that the
petitioner’s brothers had played fraud with them; as she belongs to a
family of paupers and had deprived the respondents of precious items of
dowry such as motorcycle, piece of land etc. and the respondents No.1
was well in a position to marry in a family which was ready to offer
respondents such items in dowry. The petitioner being from a poor and
gentle family bore all such insults for long, but thereafter respondent No.
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1 on the instigation of respondent No. 2 started physically torturing the
petitioner, abusing her and turning out the petitioner from her in-laws
residence. The petitioner on being turned out used to stick outside the
door of her in-laws house and for many days under starvation. It is stated
that in the year 2003, the respondents started demanding a mulching cow.
Thinking that the respondents would mend themselves, the brothers of
the petitioner arranged a cow for Rs.15,000/-. But despite it, the
respondent No.1 did not mend his behaviour and started making more
demands of dowry by telling that they had to construct a house and her
brothers should arrange money.
3. It is further stated that the demands of the respondents did not stop and
they started demanding a motorcycle, transfer of a piece of land in their
favour. It is also stated that on 19.11.2012 when she was turned out of
their house by the respondents, the respondents had threatened the
petitioner that they would kill her with 303 gun; that the petitioner is the
mother of three children, out of them, one female and two others are
males. When the female child now aged about 8 years was born, the
respondents taunted her that she has given birth to a female child to
whom they could not maintain. This necessitated the petitioner to hand
over the female child to her real married sister, so that the female child is
well looked after by her sister. On 19.11.2012 the petitioner was turned
out by the respondents from their residence, and she tried her best to
bring her two male sons in the age group of 6 and 9 years, namely,
Pushap Kumar and Gautam Kumar who clung to her eyeing and
weeping, but the respondents forcibly snatched them from the petitioner
and put both of them in a dark room.
4. It is further contended that 20.01.2012 petitioner lodged a report with the
Police Station, Rajouri, but the police has neither registered a case nor
taken any action and simply proceeded against the respondents under
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Sections 107, 151 Cr.P.C. before the Naib Tehsildar, Executive
Magistrate First Class, Rajouri.
5. Heard learned counsel for the petitioner and perused the material on
6. This petition has been filed in the year 2013 and till today petitioner has
not vigorously prosecuted the same. Further, there is an efficacy legal
and proper remedy under Guardian and Wards Act, is available to the
petitioner; even respondent no.1 is natural guardian of minor children; so
it cannot be said that minors are in illegal confinement of their father.
Even otherwise, more than six years have passed since the date of filing
of this petition and definitely minors, who were in the age groups of 6
and 9 years as per petition, would have grown up now. Therefore, this
petition filed under Section 491 Cr.P.C. is not maintainable and the same
is dismissed. The petitioner is at liberty to file a petition under the
Guardian and Wards Act, before the appropriate Court.
7. Dismissed as not maintainable.
(Sanjay Kumar Gupta)
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