Jammu & Kashmir High Court
Zameer Ahmed & Ors. vs State Of J&K; on 14 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No.959/2016, MP No.1/2016
c/qw
561-A Cr.P.C. No.570/2016, MP Nos.2/2017, 1/2016
Date of decision:- 14.09.2017
Zameer Ahmed & ors. V. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. S.H.Shah Asharafi, Advocate
For the respondent(s) None for the State.
Mr. R.P.Sharma, Advocate for private respondent(s) i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. By virtue of this order, I am deciding two petitions pending before this Court. One petition has been filed under Article 226 of Constitution of India read with section 103 Constitution of J&K State, by petitioners Zameer Ahmad Chogta and Shaista Sidiq for seeking relief of protection to their life on the grounds that they are major and have solemnized the marriage with free will and without any force from anybody; along with the petition, they have annexed photocopy of certificate issued by Dental Care Centre Sopore with regard to age of petitioner no.2, showing her as 18 years. They have also annexed Nikah Nama and Marriage Agreement.
2. This court on 22.6.2016 granted relief of their protection and disposed off the writ petition on the same day. It further appears that mother of petitioner no.2 and two more persons filed LPAOWP no.35/2016 on the ground that girl was minor and they have not been heard. LPA was allowed by Hon'ble Division Bench on 05.10.2016 and mother was directed to be impleaded as party in writ petition and writ petition was revived. Order 561-A No.570/2016, OWP No.959/2016 Page 1 of 11 dated 07.10.2016 would reveal that matter was adjourned for objections; order dated 15.10.2016 would reveal that counsel for mother of petitioner no.2 stated that FIR no.103/2016 dated 13.6.2016 in Police Station Surankote under section 363/109 RPC has already been registered against petitioner No.1 and his family.
3. Then husband -Zameer Ahmed and his family filed a second petition u/s 561-A Cr.P.C seeking quashment of FIR No.103/2016 dated 13.06.2016 registered at Police Station Surankote under Sections 363/109 RPC.
4. It is stated in this petition that the mother and maternal uncle of Shaista Sidiq, daughter of complainant, pressurized Shaista Sidiq to marry some other person against her will and consent with whom Shaista Sidiq did not like to marry and were bent upon to spoil her entire life. So constrained under these circumstances, the wife of petitioner No.1, namely, Shaista Sidiq out of her own free will and consent and without any threat or coercion from any side solemnized her marriage with petitioner No.1 under Muslim Personal Law/Shariat Law which has been a valid marriage under Muslim Personal Law. Thereafter a marriage agreement and affidavit were executed between petitioner No.1 and his wife Shaista Sadeeq and both are living a peaceful married life. It is further contended that annoyed by marriage of petitioner No.1 with Shaista Sidiq, the mother of petitioner No.1 lodged FIR No.103/2016 at Police Station Surankot. Allegations made against the petitioners by the complainant are that petitioner No.1 after developing a conspiracy with the other petitioners have allegedly kidnapped the daughter of the complainant namely Shaista Sidiq from the complainant's house on 12.06.2016. It is further alleged that pursuant to FIR impugned the police of Police Station Surankote i.e respondent No.4 produced the wife of the petitioner No.1, Ms Shaista Sadeeq, before the additional Special Mobile Magistrate, Surankot for recording her statement u/s 164-A Cr.P.C on 14.06.2016. The learned Magistrate recorded the statement of Shaista Sidiq wherein she categorically stated that she was not 561-A No.570/2016, OWP No.959/2016 Page 2 of 11 kidnapped by any person but has out of her own free will and consent married with Zameed Ahmed under Muslim Personal Law and Shariat Law on 11.06.2016 because her parents were pressurizing her to marry with a person whom she didn't like and constrained under these circumstances she was forced to marry with Zameer Ahmed. So, on the basis of her statement (supra) she was handed over by the police to petitioner No.1 in presence of learned Magistrate Surankot. On 26.06.2016 the matter was resolved by a local Panchayat between the petitioners and parents of Shaista Sidiq in which an amount of Rs.10.00 lacs was fixed as Dower (Mehar) out of which Rs.1.00 lakh was deposited in the bank in the name of Shaista Sidiq. It is further stated that the personal law board has given a Fatwa that marriage of petitioner No.1 with Shaista Sadeeq is valid under Muslim Shariat Law. As regards the fact that Shaista Sadeeq has been major and possessed sound mind and sound body and has been above 18 years of age as per the medical certificate issued by the Dental Doctor wherein it has been mentioned that according to the chronological of the order of the teeth has been above the 18 years of age. It has therefore, prayed that FIR No.103/2016 dated 13.06.2016 registered at Police Station Surankote under Section 363/109 RPC may kindly be quashed.
5. During pendency of this petition, mother filed an application for arraying her as respondent being complainant in FIR. She was made party and she filed objections on 27.02.2017, respondent No.5 has filed objections wherein it is stated that the petitioners are accused in FIR No.103/2016 under Sections 363/109 RPC dated 13.06.2016. They have been avoiding arrest due to which the investigation of the case of kidnapping of minor daughter of respondent No.5 has not been conducted by the Police Station Surankot. There is no ground to seek quashment of the FIR and the investigation. It is also stated that the daughter of respondent No.5 namely Shaista Sidiq is minor as per the date of birth certificate issued by the J&K State Board of School Education, Jammu. Her date of birth is 09.09.1999.
561-A No.570/2016, OWP No.959/2016 Page 3 of 11Being a minor the alleged consent for the marriage is irrelevant and unacceptable. The minor cannot have maturity and understanding about consequences. The minor daughter has been subjected to forcible and illegal kidnapping for the purposes of compelling her to marry with petitioner No.1 with the aid, help and abetment of other petitioners. The age proof through the document of date of birth is clearly made out. The offences against petitioners/accused are clearly established. They are not entitled to any protection under law and have no right to seek the invocation of inherent powers as the offences are not only against the respondent No.5 but also the society at large. Reference is made to the reported judgment of the Hon'ble High Court of Gujarat reported in criminal Law Journal 2016, page 4881. The excuse to the solemnization of the marriage under Muslim Personal Law is an illegal exercise and an affront to the law of the and as the minor is not capable of the discretion of entering into marriage. The assertion of the minor having the age of discretion is misconceived in light of the statutory provisions for the offence u/s 363/366 RPC. The provisions of Section 363 RPC clearly provide that the offence is complete if the minor is taken away or enticed away from the lawful custody without the consent of the guardian with such promise to marry etc. the alleged Nikahnama and affidavits are a nullity in the eyes of law and cannot be relied upon in mitigating the offences committed by the petitioners. They are not entitled to any protection/discretion to stop the investigation land the process of law against them. The provisions of Section 361 RPC are as under:
"361. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under (sixteen years) of age if a male, or under (eighteen years) of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or personal of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship"561-A No.570/2016, OWP No.959/2016 Page 4 of 11
6. The punishment is provided u/s 363 RPC as under:-
"363. Punishment for kidnapping Whoever kidnaps any person from J&K State or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extended to (seven years), and shall also be liable to fine"
7. It is further contended that the FIR is correct and requires investigation and further trial of the accused persons so that they are brought to book for the offences committed by them. The accused have no right to keep the minor in their custody. Her detention is illegal and the police is required to recover her and handover to respondent No.5 who is the mother and natural guardian. It is further contended that the alleged certificate of Dental Doctor is not worth consideration at this stage. It is illegal, incompetent and a nullity in the eyes of law. Under law any agreement allegedly made by a minor is a nullity and void ab initio. The Infant Marriages Prevention Act, Svt. 1985 (1928 AD) prevented infant marriages in the State of Jammu and Kashmir in which the infant girl has been denied to mean a girl who has not completed the age of 18 years. Under the Act punishment for causing the marriage of an infant girl has been provided. The petition filed by the accused is a mala fide one. The petitioners are not entitled to any protection from the Hon'ble High Court because in that eventuality police protection will be granted to a fugitive of law. It is also contended that the order dated 22.06.2016 passed in OWP No.959/2016 was obtained by misrepresenting the facts and concealing the registration of FIR No.103/2016 by Police Station Surankote against the petitioners under Sections 363/109 RPC. This order was set aside by the Hon'ble Division Bench of this Court in LPA(OW) No.35/2016 and the matter was remanded to the Hon'ble Writ Court vide order dated 05.10.2016. It is therefore, prayed that the petition be rejected and dismissed with costs and appropriate directions be passed to the investigating agency to arrest the accused, release the victim from their custody and all of them involved in the commission offences u/s 363/109 561-A No.570/2016, OWP No.959/2016 Page 5 of 11 RPC be arrested and brought to book so that the justice is dispensed with in accordance with law.
8. Heard learned counsel for the parties and have perused the case file and documents annexed thereto.
9. The case of Zameer Ahmed and Shasita Sidiq, petitioners, is that they have married each other vide Nikah Nama as per personal law and Shariat on 14/6/2016 in presence of respectable witnesses; the photocopy has been attached, which verifies this fact; Shasita Sidiq is daughter of respondent- mother. It is further their case that they have executed agreement of marriage and separate affidavit before Notary Public Chadoora; that they are living peacefully with their free will and consent. It is further the case of petitioners that complainant pressurized Shaista Sidiq to marry some other person against her will and consent, whom Shaista Sadeeq did not like to marry and were bent upon to spoil her entire life; that annoyed by marriage of petitioner No.1 with Shaista Sidiq, the mother of petitioner No.2, lodged FIR No.103/2016 at Police Station Surankot. That pursuant to FIR impugned, the police of Police Station Surankote i.e respondent No.4 produced the wife of the petitioner No.1 Ms Shaista Sidiq before the Additional Special Mobile Magistrate, Surankot for recording her statement u/s 164-A Cr.P.C on 14.06.2016. The Magistrate recorded the statement of Shaista Sidiq wherein she categorically stated that she was not kidnapped by any person but has out of her own free will and consent married with Zameed Ahmed under Muslim Personal Law and Shariat Law on 11.06.2016 because her parents were pressurizing her to marry with a person whom she didn't like and constrained under these circumstances she was forced to marry with Zameer Ahmed. So, on the basis of her statement (supra) she was handed over by the police to petitioner No.1 in presence of learned Magistrate Surankot. On 26.06.2016 the matter was resolved by a local Panchayat between the petitioners and 561-A No.570/2016, OWP No.959/2016 Page 6 of 11 parents of Shaista Sadeeq in which an amount of Rs.10.00 lacs was fixed as Dower (Mehar) out of which Rs.1.00 lakh was deposited in the bank in the name of Shaista Sidiq. It is further stated that the personal law board has given a Fatwa that marriage of petitioner No.1 with Shaista Sadeeq is valid under Muslim Shariat Law.
10. The only stand of respondent-mother is that her daughter has been kidnapped in intervening night of 11/12 June 2016; that date of birth of her daughter was 09.09.1999 as per State Board of School Education record, so she was minor.
11. Petitioners, Husband Zameer Ahmed and his wife Shasita Sidiq, were called in open Court on 18th and 19th of August 2017; Shasita Sidiq openly stated that she has married with Zammer and is living with him peacefully with her own consent and they both are happy. The Writ petition filed by Zameer Ahmed and his wife Shasita Sidiq is supported with affidavit
12. The occurrence of kidnapping as alleged is dated 11/12 June 2016 and date of birth of girl is 09.09.1999, so she was 17 years and about 9 months. Parties are Muslim by religion.
13. In 2011 (5) RCR (CRIMINAL) 700 in case titled Dharamvir alias Sabhi Vs. State of Punjab & ors., it is held as under:-
"8. Now the question for consideration before this Court is whether offence under Sections 363/366-A IPC is made out against the present petitioner or not? Nowhere it has come on record that Sonia was kidnapped by the petitioner, whereas she got married with the petitioner as per her free will but the marriage was solemnized against the wish of parents of Sonia. Respondent No.3 was 18 or less than 18 years of age at the time of marriage is also disputed question of fact. Admittedly, she is more than 17-1/2 years of age as mentioned by the complainant. Similar issue came up before the Hon'ble Delhi High Court in Rukshana and another v. Government of NCT and others 2007 (3) R.C.R. (Criminal) 542, wherein the following observations have been made:561-A No.570/2016, OWP No.959/2016 Page 7 of 11
"A minor girl around 17 years fell in love with a boy- Her father threatened to kill her- Fled away with boy and married him to escape from onslaught of father-No offence made out. If a boy and girl love each other, it is no offence under IPC- No matter the girl was minor.
A. Indian Penal Code, Sections 363, 365 and 366A Prosecutrix (minor girl) aged 16 years 6 months) fell in love with accused- Both ran away and married and begot a son- Both living a blissful married life- FIR under Sections 363, 364-A and 365 IPC quashed in interest of accused, prosecutrix and child- Relief could not be denied only because prosecutrix was minor. Vivek Kumar alias Sanju and another V. State and another Crl.M.C. No.3073-74/2006 decided on 23.02.2007 relied. B. Indian Penal Code, Sections 363, 365-A and 366- Minor girl (around 17 years) fell in love with a boy- Father threatened to kill her and wanted to marry her elsewhere- The girl fled away with boy and married him to escape from onslaught of father and relatives- Boy and girl not guilty of offence-Held:-
"Right to life and liberty are guaranteed by Constitution is equally available to minor- If minor girl ran away from the protection from parents to save herself from the onslaught of her father or relatives and joints her lover or runaway with him is no offence either on part of girl or on the part of boy with whom she run away and married. Vivek Kumar alias Sanju and anther Vs. State and another Crl.M.C. No.3073-74/2006 decided on 23.02.2007 relied.
C. Indian Penal Code, Sections 363, 365-A and 366 A minor girl (17 years) falling in love with a boy-This is no offence under IPC. Vivek Kumar alias Sanju and another V. State and another Crl.M.C. No.3073-74/2006 decided on 23.02.2007 relied."
9. Moreover, it is clear from the documents placed on record that the petitioner solemnized marriage with respondent No.3 as per her wish and consent and presently also she is residing with petitioner and both are leading their happy married life and she has no objection in quashing of FIR as is clear from the Affidavit dated 17.8.2009 which is annexed as Annexure P-5 with the petition.
11. For the reasons recorded above and having regard to the observations made by the Hon'ble Delhi High Court in Rukshana's 561-A No.570/2016, OWP No.959/2016 Page 8 of 11 case (supra), no offence under Sections 363 and 366-A IPC is made out against the present petitioner and, therefore, the petition is allowed; the criminal proceedings arising out of FIR No.168 dated 18/8/2009 under Sections 363/366-A IPC registered at Police Station Sadar Phagwara, District Kapurthala as well as all subsequent proceedings arising therefrom are quashed."
14. In case titled 'Gulsahan Bano & anr. v. UT Chandigarh and others' in CRM No.M13537 of 2010, date of decision 1.7.2010, it has been held that as per Muslim Law a Muslim girl is capable of giving in marriage if she attained the age of puberty i.e 9 years under both Sunni and Shia Law. According to school certificate, her date of birth is 14.7.1994, so she was more than 15 years on that date.
15. In case titled Mrs.Tahra Begum v State of Delhi WP (CRL) 446/2012 decided on 9.5.2012, it is held as under :-
4. This Court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age WP (CRL) 446/2012, Crl. M.A. 3701/2012 Page 2 of 18. The Patna High Court in the case of Md.Idris vs. State of Bihar & Ors, 1980 Crl.L.J. 764 observed that, "Whether respondent No. 5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Artcle 251 of Mulla's Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, In absence of evidence, on completion of the age of 15 years. Even in Tyabji's Muslim Law under Artcle 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Artcle 268 of Mulla's Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man of the woman as his wife. Article 90 of Tyabji's Muslim Law also says that a marriage Is to be presumed 561-A No.570/2016, OWP No.959/2016 Page 9 of 11 on the acknowledgment of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian."
This Court, in Vivek Kumar @Sanju and Anjali @Afsana vs. The State and another, (Crl.M.C.No. 3073-74 of 2006, decided on 23.02.2007) observed that, "There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade WP (CRL) 446/2012, Crl. M.A. 3701/2012 Page 3 them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No. 2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner No. 2. Her father slapped her and told that her action would malign the religion and bring danger to the religion. He even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off her daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of girl or on the part of boy with whom she ran away and married."
16. In present case also, Shaista Sidiq has appeared before Court (JMIC) for recording her statement u/s 164-A Cr.P.C, where she has stated that she has married with Zameer Ahmed with her own consent as her mother wanted to marry her with someone against her will and consent. She has also stated 561-A No.570/2016, OWP No.959/2016 Page 10 of 11 that she is living with her husband peacefully. Similarly before this court she has stated at bar that she has married with petitioner Zameer Ahmed and is living happily with him
17. In view of what has been discussed above, Petition u/s 561-A Cr.P.C.
No.570/2016 stands allowed as no case in FIR No.103/2016 dated 13.06.2016 registered at Police Station Surankot under Sections 363/109 RPC is made out against petitioners. Resultantly, FIR No.103/2016 dated 13.06.2016 registered at Police Station Surankot under Sections 363/109 RPC, is quashed.
18. Similarly OWP No.959/2016 also stands allowed as both the petitioners after solemnizing marriage out of their free will and without any fear or coercion, are living happily together as husband and wife.
19. Both petitions stand disposed of accordingly.
(Sanjay Kumar Gupta) Judge Jammu 14.09.2017 Vijay 561-A No.570/2016, OWP No.959/2016 Page 11 of 11