Punjab-Haryana High Court
Abdul Qayoom Dar vs State Of Punjab & Anr on 18 January, 2017
Author: A. B. Chaudhari
Bench: A. B. Chaudhari
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRL. MISC. No.M-1618 OF 2011
DATE OF DECISION : 18_JANUARY, 2017
Abdul Qayoom Dar
.... Petitioner
Versus
State of Punjab & another
.... Respondents
CRL. MISC. No.M-3243 OF 2011
Anita Devi @ Anita Kumari
.... Petitioner
Versus
State of Punjab & another
.... Respondents
CRL. MISC. No.M-6025 OF 2011
Sanjay Kumar Sharma
.... Petitioner
Versus
State of Punjab & another
.... Respondents
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
****
Present : Mr. Birjesh Mittal, Advocate for the petitioner(s).
Mr. K. S. Sidhu, Deputy Advocate General, Punjab.
Mr. Saurav Verma, Advocate
for respondent No.2-complainant.
****
A. B. CHAUDHARI, J.
1. In these petitions filed by the respective petitioners under
Section 482 Cr.P.C. there is a prayer for quashing of FIR No.186, dated
07.05.2009 registered under Sections 420, 494 read with Section 120-B
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IPC at Police Station Division No.6 (now Division No.7), Jalandhar and
all consequential proceedings arising out of this FIR.
Facts:
2. The complainant-respondent No.2-Shyam Sunder Kapila
resident of Nottingham, England filed the above said FIR, stating therein
that he was mislead, misrepresented and cheated by all the petitioners
herein. He submits in the FIR that he was mislead to marry Sunita
Kumari from whom he has one son and whereas, as a matter of fact, she
had already performed Nikah with petitioner-Abdul Qayoom Dar and
was not a divorcee from him and thus the petitioner-Abdul Qayoom Dar
committed offence of bigamy inter alia cheating etc. in conspiracy with
other accused persons. The petitioners in these three petitions have put to
challenge the said FIR on the ground that the story mentioned in the FIR
is wholly impossible, improbable and the reading of the FIR do not make
out any offence as mentioned in the FIR. Petitioner-Abdul Qayoom Dar
has taken stand that assuming but not admitting any such marriage was
performed by him, then even according to complainant-respondent No.2,
the same was performed after conversion of Sunita Kumari to Islam. No
offence of bigamy has been committed by him, since Islam permits four
marriages. The petitioners have also raised several grounds in their
petitions.
Submissions:
3. The learned counsel for the petitioners in all these three
petitions has taken me through long drawn FIR filed by complainant-
respondent No.2-Shyam Sunder Kapila and upon reading thereof
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submitted that in the first place no specific role is attributed to the
petitioners. Secondly, according to the learned counsel for the petitioners
reading of the entire FIR itself shows that respondent No.2 indulged in
marrying number of times and producing children when, as a matter of
fact, he was married for the first time in the year 1975 and thereafter he
was on the spree of giving divorce to his wives. According to learned
counsel for the petitioners the luxury enjoyed by respondent No.2 shows
his conduct which no one can afford. The counsel for the petitioners
submits that apart, reading of the entire FIR nowhere shows that any
offence has been made out against any of the petitioners and except
putting their name in the FIR there is absolutely nothing supporting the
allegation that the petitioners have committed any offence. According to
him the FIR is sheer abuse of process of law and made just to harass the
petitioners. The complainant is residing in Nottingham, England while
all the petitioners are required to face prosecution pursuant to the
lodgment of the FIR by the complainant. The counsel for the petitioners,
therefore, prayed for quashing of the FIR and the consequent
proceedings.
4. Per-contra, learned counsel for respondent No.2 vehemently
opposed the petitions and submitted that the validity of the FIR will be
decided by the trial Court and the detailed FIR cannot be quashed at this
stage that too under the inherent power of this Court under Section 482
Cr.P.C. According to learned counsel for respondent No.2 the offences
are clearly made out from the reading of the FIR and, therefore, no
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interference is required to be made by this Court. He, therefore, prays for
dismissal of the petitions.
Consideration:
5. I have heard learned counsel for the parties at length on a
few dates. I have perused the entire record with assistance of learned
counsel for the parties.
6. To appreciate the contentions raised by learned counsel for
the rival parties, it will be appropriate to reproduce the entire translated
FIR, which reads thus:
"To The Senior Superintendent of Police, Jalandhar.
Sub:- Application against Sunita Kumari W/o Abdul
Qayoom Dar d/o Puran Chand Sharma r/o 450, East
Park road elicester England, Pin LE5-5 HH, Abdul
Qayoom Dar S/o Late Sh. Mohd. Ramzan r/o 180-A
Subhash nagar Jammu and Sanjay Kumar S/o Sh.
Puran Chand Sharma R/o Rama Krishna Mission
Udhaywala, Jammu, Anita Kumari Sharma W/o Sh.
Sanjay Kumar Sharma r/o Rama Krishan Mission
Udhaywala Jammu for committing fraud. Sir, The
applicant respectfully submits as under:- 1. That
Shyam Sunder Kapila s/o Late Sh. Vasudev Kapila is
residing at No.8 Wallan Street, Nottingham, England
Pin Code NG-7 5ND Hall C/o Smt. Abhilash Katyal
255, New Deep Nagar Civil Lines, Ludhiana. 2.
That from 3.11.1976 the applicant shifted to England
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to settle there permanently and from that date he is
living at England and before it he was residing at H.
No. 58, Green Park Civil Lines, Ludhiana. 3. That
applicant got married with Manju Syal d/o Sh. Shiv
Syal on May 1975 as per Hindu rites at Ludhiana.
After marriage the wife of applicant Manju Syal
lived at England as his wife and out of this wedlock a
son Alwin Kapila was born on 10.04.1976. After
few days of this marriage the applicant got divorce
from his wife Manju Kapila because of difference in
their views at England on 3.1.1979 and after that
applicant contracted Second Marriage with Madhu
Bala Prabhakar d/o Late Sh. Jagat Mittar Prabhakar
R/o Pathankot on 25.04.1982 at Pathankot. After
this Madhu Bala went to applicant's place in
England in March 1983, out of this wedlock two
children one daughter Soham Kapila was born on
3.2.1983 and one son Amit Kapila was born on
10.2.1987 & because of differences between them,
he once again divorced his wife Madhu Bala in
England in July 2000. 4. That in September 2002,
applicant came in India for vacation & to meet his
relatives and for few days he stayed at Pathankot at
Vijay Prabhakaran's house who is uncle of
applicant's wife Madhu Bala by relation. At that
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time Sunita Kumari d/o Sh. Puran Chand Sharma r/o
Jammu was also present there and she told him that
she got married with Sh. Shammi Kapoor S/o Sh.
Amar Singh R/o Kathua but she could not adjust
with him as such from 1989 she is living separately
and will seek divorce from her husband. Applicant
after 2 weeks went to England from India. Sunita
Kumari took his residential address and telephone
number. After his going back to England, Sunita
Kumari wrote letter and made telephone calls to the
applicant. 5. That in March, 2003 applicant came to
India, Sunita Kumari already knew this fact, Sunita
Kumari and her brother Sanjay Kumar Sharma came
at Delhi to receive applicant and from airport they
took him to Jammu and arranged his stay at Aarti
Hotel, Kanak Mandi Jammu. Thereafter Sunita
Kumari and her brother Sanjay Kumar Sharma took
him to their house and introduced him to their
relatives. Sunita Kumari and her brother Sanjay
Kumar Sharma knew this fact that applicant was a
divorcee and wants to remarry. As such Sunita
Kumar expressed her wish to marry him and told that
within few days she will get divorce from Shammi
Kapoor S/o Sh. Amar Singh. Applicant after staying
at India for 18-20 days went back to England and he
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remained in touch with Sunita Kumari and her
relatives through correspondence and telephone
calls. 6. That on November 2003 applicant received
a telephone call from Sunita Kumari that she has got
divorce from Shammi Kapoor on 9.11.2003, now she
is free to remarry. Sunita Kumari and her brother
Sanjay Kumar requested applicant to come to India
& marry her and that marriage shall be solemnized at
Jalandhar. 7. That on 01.12.2003 applicant came in
India and stayed with his brother Prem Kumar
Kapila r/o 6-A, Green Model Town Jalandhar. At
Jalandhar in the presence of Prem Kumar Kapila, his
family members & Friends, Sunita Kumari, her
brother Sanjay Kumar Sharma and one girl which
was introduced by Sunita Kumari as her daughter
Anjali Kapoor came & informed that Sunita Kumari
was married to Sh. Shammi Kapoor S/o Amar Singh
Prop. S. K. Clinic, Shastri Nagar, Kathua and out of
this wed lock, two daughters Anjali Kapoor and
Suvidha Kapoor and boy Harshvardhan were born
and that it was her first marriage with Shammi
Kapoor and now on 09.11.2003 she has got divorce
from him through Court and that she has not been
married to anybody else. At that time Sunita
Kumari, her brother Sanjay Kumar Sharma &
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Daughter Anjali Kapoor who was about 17 ½ years
of age and Anita Kumari Sharma w/o Sanjay Kumar
Sharma assured before applicant, his brother Prem
Kumar Kapila his friends that Sunita Kumari has
very good character and she has no relation with any
person and forced him to marry her. On questioning
by Applicant and his brother Prem Kumar Kapila,
Sunita Kumari and her brother Sanjay Kumar
Sharma expressed their apprehension of disturbance
by Sunita's previous husband Shammi Kapoor at
Jammu as such marriage should be solemnized at
Jalandhar. Believing them, applicant consented to
marry Sunita Kumari at Jalandhar. On 3.12.2003
applicant got married with Sunita Kumari at Geeta
Bhawan at Jalandhar as per Hindu rites &
ceremonies & on 4.12.2003 this marriage was
registered in the office of Register of Marriages
Jalandhar, photo copy of the same is attached
herewith. A photo copy of divorce decree of Sunita
Kumari with her husband Shammi Kapoor is also
attached. 8. That after marriage applicant and Sunita
Kumari lived at England as husband and wife.
Applicant called Sunita Kumari & her three children
from first marriage to England & all of them reached
England on 18.03.2004 and on 03.02.2005 one son
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Kanhiya was born out of this marriage. 9. That after
18.03.2004 Sunita Kumari changed and started
quarreling on one pretext as other but applicant used
to tolerate it. That on 1-7-2005, Sunita Kumari left
the house of the applicant & took her three children
of her first marriage and also her son from this
marriage. Before leaving the house, a telephone call
come from India, applicant asked the caller his name
address and reason of tele-call. The caller told that
his name is Abdul Qayoom Dar r/o Jammu and
expressed his desire to talk to Sunita Kumari who is
his wife and her daughters & on questioning, he
replied to applicant that he got married Sunita
Kumari on 14.11.2003 at Jammu after she changed
her religion. When the applicant asked Sunita
Kumari about this, she admitted this fact and also
showed applicant photographs of Abdul Qayoom and
also that she changed her religion to Islam and her
name as Jainab & then got married with to Abdul
Qayoom Dar s/o Mohd. Ramzan by way of Nikah on
14.11.2003. After leaving house of applicant, Sunita
kumari made false complaints before the police of
England against the applicant, harassed him and got
order of court for his eviction from the house. After
this, applicant told the entire story to his brother
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Prem Kumar, resident of Jalandhar & requested his
brother at India to go meet Abdul Qayoom Dar R/o
180-A Subhash Nagar Jammu and inquire about his
marriage. Prem Kumar met Abdul Qayoom Dar who
admitted his extra-marital relation with Sunita
Kumari since 1989 & that they stayed together.
After that she adopted Muslim Religion and entered
in Nikah with him on 14-11-2003. He gave
photocopies of affidavit for changing of Muslim
Religion, copy of Nikahnama, letters, photo
negatives, receipts of telephone, letters written by her
to Sh. Prem Kumar, photocopies of same are
attached herewith and also told that she changed her
name to Jainab & performed Nikah. 10. That Sunita
Kumari married applicant on 3.12.2003 according to
Hindu Custom and before getting married, told
herself Hindu and a divorcee whereas Sunita Kumari
had already changed her religion to Islam on
14.11.2003 and had Nikah with Abdul Qauoom Dar
on 14.11.2003 according to Muslim rites & rituals
and that she had not divorced Abdul Qayoom Dar.
Before marriage to the applicant Sunita Kumari,
Sanjay Sharma who is the real brother of Sunita
Kumari had also told Sunita Kumari a Hindu and a
divorcee on 1-12-2003 whereas at that time Sunita
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Kumari was not a Hindu, she was a Muslim and was
already married to Abdul Qayoom Dar, so, Sunita
Kumari, Sanjay Kumar Sharma and Abdul Qayoom
Dar had together told a lie and by deceiving the
applicant, got Sunita Kumari married to him on 2-12-
2003 by telling that Sunita was Hindu when the fact
was that she was neither Hindu nor divorcee at that
time and she was the wife of Abdul Qayoom Dar at
that time. 11. That had applicant knew the true fact
that Sunita Kumari is neither Hindu nor divorcee, he
would have never married her. 12. That Sunita
Kumari and her brother Sanjay Kumar Sharma who
has performed all ceremonies for her sister according
to Hindu custom and gave his sister's hand in the
hand of applicant had deceived him and hidden the
truth from the applicant about Sunita's marriage with
Abdul Qayoom Dar. 13. That Sunita Kumari and her
brother Sanjay Kumar Sharma have concealed the
truth from the applicant and convinced him that she
had taken divorce from Shammi Kapoor and is
Hindu and made the applicant to agree to perform
marriage & cheated him. Sunita Kumari, Abdul
Qayoom Dar & Sanjay Sharma had together
deceived the applicant and gold and rupees 5 lac
lying in State Bank of Ludhiana and Bank of India
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Chandigarh in the account of the applicant were
taken away by Sunita Kumari & her brother Sanjay
Sharma also took the cheque (honored) signed by the
applicant and Gold 10 Tolas by deceiving the
applicant. It is requested that legal action be taken
against Sunita Kumari w/o Abdul Qayoom Dar S/o
Late Sh. Mohd Ramzan D/o Puran Chand Sharma,
R/o 450, East Park road, Liester England, Pin Code -
LE5-5HH, Abdul Qayoom Dar s/o Late Sh. Mohd
Ramzan R/o 180-A Subhash Nagar Jammu and
Sanjay Kumar Sharma s/o Sh. Puran Chand, R/o
Rama Krishna mission Udhaywala Jammu, Anita
Kumari Sharma w/o Sh. Sanjay Sharma R/o Rama
Krishna Mission Udhaywala Jammu. I shall be
thankful to you Sd/- applicant Sham Sunder Kapila
s/o Late Sh. Vasudev Kapila r/o No.8 Wallan Street
Nottingham England Pin Code NG7 5ND Hall C/o
Smt. Abhilash Katyal, 255 New Deep Nagar, Civil
Lines Ludhiana."
7. A careful perusal of the above FIR shows that respondent
No.2 shifted to England in the year 1976 and had married Manju Syal
daughter of Shiv Syal in May, 1975. After birth of some children he
divorced her on 03.01.1979. Thereafter, he contracted second marriage
with Madhu Bala Prabhakar daughter of Jagat Mittar Prabhakar on
25.04.1982 from whom he had two children; one daughter and one son.
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He also divorced Madhu Bala Prabhakar in England in July, 2000. Then
he decided to marry Sunita Kumari in respect of whom the present matter
arose. Sanjay Kumar Sharma petitioner in CRM-M No.6025 of 2011 is
the brother of Sunita Kumari while Anita Devi @ Anita Kumari who is
the petitioner in CRM-M No.3243 of 2011 is wife of Sanjay Kumar
Sharma.
8. Upon reading of the FIR, it is clear that the complainant
came to India in September, 2002 with a view to marry for the third time.
He was knowing that Sunita Kumari had married with one Shammi
Kapoor of Kathua. She had a divorce with Shammi Kapoor on
09.11.2003. Thus the complainant then performed marriage with Sunita
Kumari who already had children from her fist marriage with Shammi
Kapoor. Thus respondent No.2 with open eyes and after making due
enquiry about her divorce with Shammi Kapoor, married Sunita Kumari.
He then went to England with Sunita Kumari and started residing with
her in England. Not only that he called her three children from the first
marriage, to England and started living with them. He has a son Kanhiya
from Sunita Kumari born on 03.02.2005. Thereafter, according to
complainant, Sunita Kumari had quarrel with him and left his house
along with her children. It is further stated in the FIR that he had
received telephone call made by a person from Indian. When he asked
the name of the caller the name was told as Abdul Qayoom Dar resident
of Jammu who allegedly stated that he had married with Sunita Kumari
on 14.11.2003 at Jammu upon changing her religion to Islam. Thereupon
the complainant instructed his brother Prem Kumar to find out the
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position and that then Prem Kumar met Abdul Qayoom Dar who
admitted his extra-marital relation with Sunita Kumari since 1989 and
that they stayed together and further that on 14.11.2003 Sunita Kumari
had performed Nikah with him (Abdul Qayoom Dar). It is further stated
in the FIR that Abdul Qayoom Dar also gave photocopies of affidavit for
changing to Islam namely Nikahnama, photos, etc. to Prem Kumar.
9. The allegations which are borne out from the FIR are that
Sanjay Kumar Sharma brother of Sunita Kumari, knew the fact that
complainant wanted to marry for the third time and therefore he
approached him. The allegations against Anita Devi @ Anita Kumari
wife of Sanjay Kumar Sharma, is that she and her husband had assured
the applicant that Sunita Kumari has a very good character and she had
no relation with any person and forced the complainant to marry Sunita
Kumari.
10. Insofar as Abdul Qayoom Dar, is concerned, the only
allegation is that the complainant received phone call from India and
caller told his name as Abdul Qayoom Dar, and stated that he is the
husband of Sunita Kumari. The next allegation is that Prem Kumar, his
brother on verification got photocopies of the documents about
Nikahnama, change of religion etc.
11. Now, insofar as Sanjay Kumar Sharma, is concerned, it
would be appropriate to highlight the allegations against him in the FIR,
which I quote hereunder:
"Thereafter Sunita Kumari and her brother Sanjay
Kumar Sharma took him to their house and
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introduced him to their relatives. Sunita Kumari and
her brother Sanjay Kumar Sharma knew this fact that
applicant was a divorcee and wants to remarry."
12. Insofar as Anita Devi @ Anita Kumari wife of Sanjay
Kumar Sharma is concerned, following are the allegations:
"At that time Sunita Kumari, her brother Sanjay
Kumar Sharma & Daughter Anjali Kapoor who was
about 17 ½ years of age and Anita Kumari Sharma
w/o Sanjay Kumar Sharma assured before applicant,
his brother Prem Kumar Kapila his friends that
Sunita Kumari has very good character and she has
no relation with any person and forced him to marry
her."
13. The allegations against both Sanjay Kumar Sharma and his
sister Sunita Kumari, as mentioned at the end of the FIR, are reproduced
hereunder:
"13. That Sunita Kumari and her brother Sanjay
Kumar Sharma have concealed the truth from the
applicant and convinced him that she had taken
divorce from Shammi Kapoor and is Hindu and
made the applicant to agree to perform marriage &
cheated him. Sunita Kumari, Abdul Qayoom Dar &
Sanjay Sharma had together deceived the applicant
and gold and rupees 5 lac lying in State Bank of
Ludhiana and Bank of India Chandigarh in the
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account of the applicant were taken away by Sunita
Kumari & her brother Sanjay Sharma also took the
cheque (honored) signed by the applicant and Gold
10 Tolas by deceiving the applicant."
14. Insofar as Abdul Qayoom Dar, is concerned, following are
the allegations against him:
"Before leaving the house, a telephone call come
from India, applicant asked the caller his name
address and reason of tele-call. The caller told that
his name is Abdul Qayoom Dar r/o Jammu and
expressed his desire to talk to Sunita Kumari who is
his wife and her daughters & on questioning, he
replied to applicant that he got married Sunita
Kumari on 14.11.2003 at Jammu after she changed
her religion. When the applicant asked Sunita
Kumari about this, she admitted this fact and also
showed applicant photographs of Abdul Qayoom and
also that she changed her religion to Islam and her
name as Jainab & then got married with to Abdul
Qayoom Dar s/o Mohd. Ramzan by way of Nikah on
14.11.2003. After leaving house of applicant, Sunita
kumari made false complaints before the police of
England against the applicant, harassed him and got
order of court for his eviction from the house. After
this, applicant told the entire story to his brother
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Prem Kumar, resident of Jalandhar & requested his
brother at India to go meet Abdul Qayoom Dar R/o
180-A Subhash Nagar Jammu and inquire about his
marriage. Prem Kumar met Abdul Qayoom Dar who
admitted his extra-marital relation with Sunita
Kumari since 1989 & that they stayed together.
After that she adopted Muslim Religion and entered
in Nikah with him on 14-11-2003. He gave
photocopies of affidavit for changing of Muslim
Religion, copy of Nikahnama, letters, photo
negatives, receipts of telephone, letters written by her
to Sh. Prem Kumar, photocopies of same are
attached herewith and also told that she changed her
name to Jainab & performed Nikah."
15. From the perusal of the above allegations qua Sanjay Kumar
Sharma and Anita Devi @ Anita Kumari, are concerned, it is clear that
Sanjay Kumar Sharma knew the fact that respondent No.2 was divorcee
and therefore, he wanted to marry his sister with him. He was also told
that Anita Devi @ Anita Kumari and Sanjay Kumar Sharma assured the
complainant that Sunita Kumari had very good character and she had no
relations with any one and forced him to marry her. Lastly, the
allegations are that all of them thus cheated him.
16. Insofar as Sanjay Kumar and his wife Anita Devi @ Anita
Kumari are concerned, in my opinion, there is absolutely no allegation
against them in the FIR constituting the offences under Sections 420, 494
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and 120-B IPC. In that view of the matter, qua Sanjay Kumar and his
wife Anita Devi @ Anita Kumari, obviously the FIR against them will
have to be quashed.
17. Insofar as Abdul Qayoom Dar, is concerned, the allegations
have already been highlighted by me in the above paragraphs. Apart
from that the allegation against Abdul Qayoom Dar is that respondent
No.2-complainant received telephone call from India and caller gave his
identity as Abdul Qayoom Dar and that the caller stated that he was
married to Sunita Kumari by Nikahnama and she is his wife. In view of
the allegations as alleged by the complainant in the FIR, merely except
the caller telling his name as Abdul Qayoom Dar to complainant, there is
no material and that is not sufficient to prosecute him for the offences for
which the instant FIR was registered.
18. As to the delivery of the copies of documents of Nikahnama,
letters, photo negatives etc. by Abdul Qayoom Dar to Prem Kumar
brother of respondent No.2-complainaint, the petitioner Abdul Qayoom
Dar has categorically given in the petition the following explanation,
which I quote hereunder:
"10. ..... xxx..... That the petitioner thereafter
verified from the o/o The Registrar of Nikah Auqaf
Department islamia Jammu regarding the
authenticity of the said NikahNama. To his shock
and surprise, the petitioner was informed by the
concerned authority that there was no such entry in
the Nikah Aqaf Department Islamia Jammu
pertaining to the registration of marriage between
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Sunita Kumari with the petitioner Abdul Qayoom
Dar and at Serial No. 31 of Register No.50 & that the
marriage between Ali Hussain s/o Rahim Baksh &
Kulsum Bibi D/o Mohd. Din which was solemnized
on 19.02.2004 has been registered Serial No.31 of
Register No.50, translated copy of the same is
appended as ANNEXURE P-6. Thus the said
NikahNama (P-5) furnished by
complainant/respondent No.2 to the police
authorities was thus forged and fake.
11. That further the petitioner also inquired &
checked up from Ghulam Mohd. Whose name was
mentioned on the fake NikahNama to the effect that
he had got solemnized the marriage between Abdul
Qayoom Dar and Sunita Kumari (Zainab-changed
Muslim Name). That the said Sh. Ghulam Mohd.
Has given an affidavit dated 20.09.2010 duly attested
by the Executive Magistrate First Class, Budhal,
District Rajouri (J&K) that he has never signed as a
witness/solemnizer on the NikahNama, copy of the
affidavit is appended as ANNEXURE P-7.
12. That the petitioner also places on record an
affidavit dated 17.01.2011 of Shah Mohd., s/o Bag
Ali, r/o Village korla Jagir who is IMAM Masjid,
Subhhash Nagar, Jammu, copy of the same is
appended as ANNEXURE P-8, to the effect that he
has been rendering services as IMAM Masjid,
Subhash Nagar for last more than 10 years & also
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performing the marriage ceremonies of the Muslim
community who wish to get their marriage registered
before Marriage Committee Auqaf Islamia Jammu
and that he had performed the marriage ceremony of
Muslim couple namely Ali Hussain s/o Rahim Baksh
with Smt. Kulsum Bibi D/o Mohd. Din on
19.02.2004 as per Marriage certificate bearing Serial
No.31 and the marriage certificate bearing Serial
No.31 dated 15.11.2003 of Auqaf Islamia Jammu is
fake, forged & is not issued.
13. ....xxx....xxx.... xxx....xxx.... xxx....xxx....
14. ....xxx....xxx.... xxx....xxx.... xxx....xxx....
15. That the impugned FIR No.186 dated 07.05.2009
U/S 420, 494 and 120B IPC registered at police
Station Division No.6 Jalandhar deserves to be
quashed by this Hon'ble High Court on the following
grounds:-
(i) That the petitioner is a Muslim by religion and the
Muslim Law in India confers upon a Muslim the
existence and recognition of the institution of
Polygamy i.e. a Muslim can have more than one wife
at a time. Thus Section 494 of IPC as registered in
the FIR against the petitioner is not applicable at all
pursuant to the fact that the petitioner is a Muslim
and the Muslim Law confers a right to have more
than one wife at a time.
(ii) That the complainant/respondent no.2 in his FIR
has alleged that Sunita Kumari who is a Hindu by
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religion after her divorce with her first husband
Shammi Kapoor on 9.11.2003 has converted to Islam
and remarried the petitioner Abdul Qayoom Dar on
14.11.2003 i.e. just after 5 days of getting divorce
from her first husband. ....xxx....xxx....xxx....xxx."
19. From the above clarification tendered by Abdul Qayoom
Dar in his petition, which has not been countered by respondent No.2-
complainant, it is crystal clear that no offence can be said to have been
made out against petitioner-Abdul Qayoom Dar as well.
20. Learned counsel for respondent No.2 concluded that the
offence of bigamy has been committed by petitioner-Abdul Qayoom Dar.
However, I find that there is not even any allegation in the FIR that
Abdul Qayoom Dar had performed marriage after performance of
marriage of Sunita Kumari with respondent No.2.
Conclusion:
21. To sum up, the entire FIR and its allegations do not make
out any offence against the petitioners in any probability. Consequently,
the FIR deserves to be quashed so also the consequential proceedings
taken up pursuant thereto. In the result all these petitions must succeed.
Hence I make the following order:
ORDER
22. The CRL. MISC. No.M-1618 OF 2011, CRL. MISC. No.M-3243 OF 2011 and CRL. MISC. No.M-6025 OF 2011 are allowed, on merits.
23. The FIR No.186, dated 07.05.2009 registered under Sections 420, 494 read with Section 120-B IPC at Police Station Division No.6 21 of 22 ::: Downloaded on - 08-07-2017 12:00:57 ::: CRL. MISC. No.M-1618 OF 2011, CRL. MISC. NO.M-3243 OF 2011 & CRL. MISC. NO.M-6025 OF 2011 -22- (now Division No.7), Jalandhar filed against petitioner-Abdul Qayoom Dar in CRL. MISC. No.M-1618 OF 2011, petitioner-Anita Devi @ Anita Kumari CRL. MISC. No.M-3243 OF 2011 and petitioner-Sanjay Kumar Sharma in CRL. MISC. No.M-6025 OF 2011, along with all consequential proceedings pursuant thereto, stand quashed and set aside.
24. No orders as to costs.
18 JANUARY, 2017 (A. B. CHAUDHARI)
'raj' JUDGE
Whether speaking/reasoned: Yes No
Whether Reportable: Yes No.
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