CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.1 of 47 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 03.10.2007 + Crl MC 10078/ in BAIL APPLN. 4746/2006 MASROOR AHMED ... Petitioner versus - STATE (NCT OF DELHI) & Another ... Respondents Advocates who appeared in this case: For the Petitioner : Mr Jitendra Sethi For the Respondent/State : Mr O.P. Saxena For the Complainant : Mr Mohd. Tabrez and Mr Mashi Alam CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in Digest ? BADAR DURREZ AHMED, J 1. This is a very unusual case. The petitioner was originally seeking bail [Bail Appln 4746/2006] in respect of FIR No. 817 dated 12.12.2006 registered at police station Preet Vihar under section 376 of the Indian Penal Code, 1860. The petitioner's bail application filed before the sessions court had been rejected by the learned Sessions Judge by an order dated 20.12.2006. Consequently, an application for bail [Bail Appln 4746/2006] had been filed before this court. During the pendency CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.2 of 47 of the said bail application, in which this court had granted interim bail to the petitioner, the complainant and the petitioner have arrived at a settlement which has been reduced to writing in the form of a compromise deed dated 01.09.2007. By virtue of the said deed, the petitioner and the complainant have decided to settle all their disputes and cases which include the present case as well as cases arising out of FIR No. 637/2006 u/s 498-A/406/34 IPC and FIR No. 79/2007 u/s 506/34 and the maintenance case u/s 125 CrPC pending before the Metropolitan Magistrate, all of which have been initiated by the complainant, and the case arising out of FIR No. 91/2007 at P.S. Tilak Marg u/s 506/34, which has been registered at the instance of the petitioner and in which the complainant herein, Aqil Ansari, Altamash and others are accused. The question of custody of the minor daughter [Sara @ Ushna], aged about 2 years, born out of the wedlock of petitioner and the complainant has also been settled. Because of this settlement/compromise between the petitioner and the complainant as also on merits, this application has been filed under section 482 CrPC for quashing of FIR No.817/2006 u/s 376 registered at P.S. Preet Vihar. The Facts 2. The case is unusual, not because of the circumstances narrated above but, because of the facts which led to the registration of the FIR in CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.3 of 47 question. The complainant, Aisha Anjum, filed a written complaint at the above-mentioned police station on 12.12.2006. In her written complaint, she stated that her marriage was solemnised with the petitioner on 2.4.2004 in accordance with Muslim rites. She further stated that out of this marital relationship a daughter was born to her. She alleged that the petitioner and his family members threw her out of the house on account of non-fulfillment of dowry demands for which she had already complained to the crime against women cell. It was then alleged that the petitioner had filed a case for restitution of conjugal rights and on 13.4.2006, from the court itself, she went with her husband to their matrimonial home. It is further alleged in the written complaint that after her return to her matrimonial home her husband committed rape on her upto 19.4.2006 because she had later come to learn that he had already given her talaq earlier and that he had lied in court that she was still his wife and on this misrepresentation he had taken her home. She further submitted that the petitioner's family members also knew about the talaq but they participated in the fraud committed against her. It is further alleged that on 19.4.2006 a second nikah was performed which came to light only when she obtained a duplicate copy of the nikahnama. She alleged that the petitioner had unlawful relations with her during that time as he was not her husband then. She further stated that had she known, at CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.4 of 47 that point of time, that he was not her husband and that he had already given her talaq, she would never have agreed to have conjugal relations with him. She alleged that her consent was taken by playing a fraud upon her and that the petitioner, in the guise of being her lawful husband, had unlawful relations with her by deceitful means. She reiterated that had she known of the truth at that point of time she would never have given her consent. She therefore requested that legal action against the petitioner and other accused persons be taken under sections 376/34 IPC. 3. It is an admitted position that the complainant and the petitioner got married on 2.4.2004 and that they lived together till 8.4.2005. On that date, according to the complainant, she was thrown out of the house on account of non-fulfillment of dowry demands. But, according to the petitioner, the complainant left their house without informing him and of her own will. On 22.10.2005, the complainant gave birth to a baby girl (the said Sara @ Ushna, who is now about 2 years old). It is alleged by the petitioner that towards the end of October 2005, his brother-in-law and his sister attempted to arrange for the return of the complainant to her matrimonial home. But, this was in vain. It is further alleged by the petitioner that upon hearing of the failure of this mission, he became very sad and extremely angry and in this mental CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.5 of 47 condition, in the presence of his brother-in-law and another man, he uttered the words giving talaq to his wife (the complainant) approximately three times or even more. According to the petitioner, he forgot about this incident and continued to make efforts for the return of his wife. Admittedly, the factum of the purported talaq was not communicated to the complainant. 4. On 23.3.2006, the petitioner, wanting the return of his ‗wife‘, filed a suit for restitution of conjugal rights in the court of the Senior Civil Judge, Delhi. In paragraph 1 of the plaint, the petitioner stated that the complainant was married to the petitioner on 2.4.2004 at Delhi and was ―still the wife” of the petitioner. The purported talaq of late October 2005 was not mentioned in the plaint. On 13.4.2006, statements of the complainant and the petitioner were recorded in the said suit for restitution of conjugal rights. The complainant stated:- ―I am ready to join the company of the plaintiff/ husband and from the court I am going to my matrimonial home with my husband.‖ The petitioner made the following statement:- ―I have heard the statement of defendant. I am ready to take the defendant/ my wife to my home. My suit stand[s] satisfied and I do not want to pursue the present matter. My suit may be disposed of as satisfied.‖ CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.6 of 47 On the basis of these statements, on 13.4.2006 itself, the learned Civil Judge passed the following order:- ―It is stated that matter has been settled between the parties and defendant is ready to join the company of the plaintiff. Statement of parties recorded. In view of the same suit of the plaintiff is disposed of as satisfied. File be consigned to Record Room.‖ 5. The complainant returned with the petitioner to their matrimonial home on 13.4.2006 from court itself. Thereafter, another remarkable event allegedly took place. As mentioned in the FIR, a second nikah was performed between the petitioner and the complainant on 19.4.2006. Which, according to the complaint, the complainant got to know only upon receiving a duplicate copy of the nikahnama from the Qazi who performed the ceremony. According to the petitioner, the second nikah was necessitated because after the settlement of 13.4.2006, he was reminded by his brother-in-law that he had already divorced the complainant by way of a triple talaq in october 2005. Faced with this situation, the petitioner, who did not want any illegitimacy in his marital status, allegedly sought an opinion from a mufti on 16.4.2006. The mufti reportedly gave a fatwa on 17.4.2006 that three talaqs pronounced in one sitting would be regarded as one talaq-e-rajai and, consequently, the petitioner could have taken back the complainant within the iddat period of three months. But, as that period had elapsed, the petitioner and the CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.7 of 47 complainant could renew their matrimonial relationship only by performing a fresh nikah. According to the petitioner, it is because of this fatwa that the second nikah was performed on 19.4.2006 which, according to the petitioner, was witnessed by the complainant's brother (Shahid Naeem) who also signed as a witness on the nikahnama (as also the compromise deed dated 01.09.2007). It was, of course, earlier alleged by the complainant that the factum of the nikah was not in her knowledge and came to light much later, before the CAW cell. According to her, signatures were taken on the pretext that the documents had to be filed in court as a formality. 6. After her return to the matrimonial home on 13.04.2006, the complainant continued to reside with the petitioner. Once again, there was discord between them and the petitioner pronounced talaq (again) on 28.08.2006. On 30.8.2006, the petitioner left the matrimonial home. Since then, she is residing at her parental home. On 6.9.2006, she filed a complaint before the crime against women cell. It is further alleged by her that during the inquiry it came to light that the petitioner had given her talaq earlier also (ie., in October, 2005). According to the complainant, on 3.10.2006 when the petitioner appeared before the CAW cell, he disclosed that he had already given the ‗first‘ talaq to the CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.8 of 47 complainant in October 2005. It is then, according to the complaint, that the complainant came to know for the first time that a fraud had been played upon her and that the petitioner had sexual intercourse with her during 13.4.2006 and 19.4.2006 when, in law, he was not her husband. However, she filed her written complaint only on 12.12.2006 with regard to the alleged rape committed during 13.4.2006 and 19.4.2006. The FIR under section 376 IPC was registered on the same date (12.12.2006). 7. The prosecution case is that the sexual intercourse which allegedly took place between the petitioner and the complainant during 13.4.2006 and 19.4.2006 constituted rape under section 375 IPC as the complainant had been deceived into believing that the petitioner was still her husband on 13.4.2006, when the order in the suit for restitution of conjugal rights was passed. It is contended that the petitioner knew of the talaq, yet, he misrepresented that the complainant was still his wife and the complainant, believing this, returned to her matrimonial home. Her consent to re-establish the conjugal relationship was, therefore, based upon a fraud played by the petitioner and his family members. 8. It is pertinent to mention that the petitioner‘s bail application was dismissed by the learned Additional Sessions Judge on 20.12.2006 CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.9 of 47 holding that the petitioner had not disclosed the factum of talaq, either to the complainant or to the court, in his suit for restitution of conjugal rights. It was further held that-- ―Pronouncement of triple 'talak' amounts to talaq-ul- Biddat which became irrevocable and it does not lie in the mouth of the applicant to say that the complainant was his wife. As far as case of re- marriage is concerned, there should be an intermediate marriage with some other person, consummation of marriage and then divorce and thereafter applicant can marry the complainant. Therefore, second marriage on 19.4.06 nowhere answers religious tenets of the parties. Consent, given by the complainant from 13.4.2006 till 19.4.2006, was a tainted consent, which can not be termed as free consent by her.‖ These observations in respect of muslim law as applicable in India are not correct. The foundation of the prosecution case as also the decision of the learned sessions judge is that the marriage stood dissolved by the purported triple talaq of October, 2005. On the contrary, as indicated below, the ‗foundation‘ is illusory and is not supported by the facts stated in the complaint considered in the light of the principles of muslim law as applicable in India. This would be clear from the discussion below. The compromise, Sections 320 and 482 CrPC 9. But, before that, let me deal with the issue of exercise of power under section 482 CrPC. The learned counsel for the petitioner CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.10 of 47 contented that this was a fit case for exercise of the power under section 482 CrPC so as to quash the said FIR No.817/2006 and all proceedings emanating from it. The learned counsel for the complainant also requested that in view of the settlement/compromise the said FIR be quashed. The complainant, who was also present, endorsed the submissions of her counsel and stated that she was not interested in pursuing the case. Consequently, the learned counsel for the petitioner submitted, there was absolutely no chance of a conviction. However, the learned counsel for the State submitted that the offence u/s 375 was not compoundable under section 320 CrPC and, therefore, the case cannot be extinguished merely because the complainant and the accused have settled. The learned counsel for the petitioner rejoined by submitting that the power under section 482 is not limited by section 320 CrPC and, in any event, even on merits this was a fit case for quashing as the offence of rape is not made out. He submitted that upon a proper application of muslim law, the talaq purportedly given by the petitioner to the complainant in October, 2005 would have to be held as invalid. Consequently, at the relevant time (ie., 13.04.2006 to 19.04.2006) the petitioner and the complainant would be husband and wife. Therefore, CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.11 of 47 no case of rape can at all be made out in view of the exception1 to section 375 IPC. 10. Section 482 CrPC provides that: ―Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or other wise to secure the ends of justice.‖ The provision saves the inherent and plenary power of the High Court to do justice. The fact that section 320 CrPC does not in any way abridge the scope and amplitude of the power of the High Court for quashing an FIR, even in respect of an offence which is otherwise not compoundable, for securing the ends of justice, is no longer open for debate. In B.S. Joshi v. State of Haryana: (2003) 4 SCC 675, the Supreme Court held: ―We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.‖ 1 ―Exception. —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.‖ CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.12 of 47 In an earlier decision in the case of State of Karnataka v. L. Muniswamy: (1977) 2 SCC 699, the Supreme Court explained the expanse of the powers of the High Court in the following words:- ―In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court‘s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.‖ After referring to the said decision in Muniswamy (supra), the Supreme Court in B. S. Joshi (supra) observed as under: ―… What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.13 of 47 members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the ―negative‖. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. 11. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre2 it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings. 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.‖ (underlining added) Thus, in matrimonial matters which take on a criminal hue, it would be quite in order to quash an FIR where the parties have settled and decided to bring to an end all their disputes. Apart from freeing the husband and 2 (1988) 1 SCC 692 CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.14 of 47 wife and their families from the rigours of long drawn legal battles, genuine settlements also reduce the burden on courts and the entire prosecution machinery from pursuing cases which would ultimately see a dead end. The ultimate chance of conviction is bleak, if at all, in such cases as the complainants would not support any of the imputations made in the complaint. A prompt an early end to such cases would certainly secure the ends of justice. Of course, since the powers of the High Court are plenary, the High Court must exercise them with circumspection. On merits: submission that the offence u/s 375 IPC is not made out 11. The settlement between the petitioner and the complainant would in itself have been sufficient for this court to exercise its inherent powers to put to an end the FIR in question as also proceedings emanating from it. This is so because I am of the view that the parties have genuinely settled all their disputes and have decided to part with each other in terms of the compromise which brings to an end bitter legal matrimonial battles. The present case being one of them. It is also worth keeping in mind that the petitioner and the complainant have a daughter, who shall always remain their daughter even though they no longer remain as husband and wife. CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.15 of 47 Apart from this, it was also stressed by the learned counsel for the petitioner (and, not opposed by the learned counsel for the complainant) that on merits also no case for rape was made out. The learned counsel for the petitioner, submitted that- (1) The alleged triple talaq of october 2005 did not result in a divorce in law. The talaq was invalid. And, it was not even communicated to the complainant. He relied upon the following decisions:- (i) Riaz Fatima & Anr v. Mohd Sharif : 135 (2006) DLT 205; (ii) Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan: 2002 (3) Mh.L.J. 602 (FB); (iii) Dilshad Begum Ahmadkhan Pathan v. Ahmadkhan Hanifkhan Pathan & anr: Criminal Revision Applications 313 & 314/1997 decided on 17.1.2007 (Bombay High Court); (iv) Shamim Ara v. State of U.P.: AIR 2002 SC 355. (2) Consequently, the complainant continued to be the petitioner's wife. Therefore, there was no question of any rape during 13.4.2006 and 19.4.2006 inasmuch as a ―wife‖ is excepted under section 375 IPC itself. CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.16 of 47 (3) In any event, the triple talaq pronounced in a single sitting could, at best, be regarded as one talaq and therefore the second nikah performed on 19.4.2006 was permissible and valid under muslim personal law. (4) Consequently, consent can well be presumed for sexual acts prior to the nikah of 19.4.2006. Reliance was placed on State of Andhra Pradesh v. P Narasimha & anr: 1994 SCC (Cri) 1180. Five questions 12. Several questions impinging upon muslim law concepts arise for consideration. They are :- (1) What is the legality and effect of a triple talaq ? (2) Does a talaq given in anger result in dissolution of marriage? (3) What is the effect of non-communication of the talaq to the wife? (4) Was the purported talaq of October 2005 valid? (5) What is the effect of the second nikah of 19.4.2006 ? CRLMC 10078/07 in BAILAPPLN 4746/06 Page No.17 of 47 Certain Muslim Law Concepts: 13. Before I examine these questions it would be necessary to set out certain concepts of muslim law (shariat) which are oft ignored. Islamic jurisprudence (fiqh) has developed from four roots (usul al-fiqh):- (1) The Quran; (2) the hadis3 or sunna; (3) Ijma4; and (iv) Qiyas5. Employing these usul al-fiqh, the ulema (the learned) conducted a scientific and systematic inquiry. This is known as the process of ijtihad. Through this process of ijtihad sprung out various schools of law each of which owed its existence to a renowned master6. For example, the jurisprudence (fiqh) developed by Abu Hanifah