Ayesha & Anr. vs State of JK & Ors.

The petitioners, in this petition filed under Section 561-A of the Code of Criminal Procedure, are seeking quashment of FIR No. 129 of 2016, registered at Police Station, Doda, for the commission of offences punishable under Section 366 of the Ranbir Penal Code (RPC), on the ground, that the respondent Police has, on a false and fabricated story of the relatives of the petitioner No.1 (respondent Nos. 8 and 9 herein), lodged the FIR aforesaid against the petitioner No.2, the legally wedded husband of the petitioner No.1, namely Aijaz Ahmad Sheikh S/o Ghulam Mohammad Sheikh R/o Khayam, Srinagar.

It is stated that the petitioner No.1 has exercised her right with reference to entering into the contract of marriage, being major as born on 10th of March, 1990. She completed her Bachelors'' degree from Jammu University in the year 2011 and, afterwards, completed her B. Ed degree from Jammu University in the year 2012, as well. The petitioner No.1 further states that she has a fundamental right to choose and profess any religion of her choice, and, on being influenced by the Islamic teachings, she embraced "Islam" as her religion in the year 2015. Thereafter, on 23rd of November, 2015, the petitioner No.1 contracted "Nikkah" as per "Islamic Sharia" with the petitioner No.2, Aijaz Ahmad Sheikh S/o Ghulam Mohamad Sheikh R/o Mathi Marmat, District Doda, to which extent the petitioner No.1 has executed a declaration, which was duly attested by the "Notary Public" on 28th day of June, 2016, wherein she has clearly mentioned that she has embraced Islam as her religion and has married the petitioner No.1 (Aijaz Ahmad) out of her free will and choice.

Since the marriage was not of the liking of the respondent Nos.8 and 9, therefore, the respondent Nos. 8 and 9 filed a false and frivolous compliant, based on which FIR bearing No. 129 of 2016 came to be registered at Police Station, Doda, for the commission of offences punishable under Section 366 of the Ranbir Penal Code (RPC).

The petitioners plead that they are being harassed at the hands of respondent Nos. 8 and 9, who are continuously threatening the petitioners with life threats. Hence, in order to secure their life, the petitioner No.1, in person, filed OWP No. 1218/2016 before this Court and the Court, vide order dated 5th of October, 2016, directed the respondents not to harass the petitioner and her husband. It has also been pleaded that the petitioner No.2 had filed a 561-A petition bearing No. 11/2017 at the Jammu wing of the High Court, challenging the impugned FIR, but due to the hostile circumstances at Jammu, same was withdrawn on the 26th day of May, 2017.

The petitioners have enclosed all the documentary evidence in order to substantiate their claim, i.e. the proof of "Date of Birth" of the petitioner No.1 as being 10th of March, 1990, declaration duly attested by "Public Notary", Marriage Agreement, Nikkahnama, order passed by this Court in OWP No. 1218/2016, etc.

Law on the subject is well settled that a major person, being competent to enter into the contract of marriage, cannot, by any stretch of imagination, be stopped from executing such contract, irrespective of caste, creed, color, sex and religion. The petitioner No.1, while exercising her authority with reference to her fundamental right, has chosen the better part.

In the ordinary course, the respondent No. 7, i.e. the Station House Officer (SHO), Police Station, Doda, was, while investigating the matter with reference to the claim put forth by the complainants, only supposed to ascertain as to whether or not such a claim is substantiated by the statement of the prosecutrix (petitioner No.1 herein) recorded in accordance with law. The police authorities have no authority under law to proceed against the legally wedded husband of the prosecutrix.

In the above background, this petition is disposed of with a direction to the respondent No.7, i.e. Station House Officer (SHO), Police Station, Doda, to expeditiously conclude the investigation vis-a-vis the FIR bearing No. 129 of 2016 registered at Police Station, Doda, for the commission of offences punishable under Section 366 of the Ranbir Penal Code (RPC), by, at the first instance, recording the statement of the prosecutrix (petitioner No.1 herein) before the Court of competent jurisdiction. In the event, the prosecutrix (petitioner No.1 herein) supports the claim with reference to having entered into marriage with the accused (petitioner No.2 herein), the investigating authorities, have no option, but to close the FIR in question and file the final report, accordingly.

561-A petition, alongwith all connected MP(s), disposed of in the above terms.