561-A Cr.P.C. No.170-S/2009 Page 1 of 6 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 J&K & 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 561-A Cr.P.C. No.170-S/2009 Page 2 of 6 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 3 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 4 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 5 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 6 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