Ghulam Mohd Najar vs Ghulam Ahmad Najar

Bashir A. Kirmani, J.—Claiming to be the husband of one Mst. Rafiqa and alleging that she had been confined alongwith her minor child by

one Ch. Ahmed Najar, the first respondent herein, applied to judicial magistrate (Munsiff Baramulla) for issuance of a warrant u/s 100 Cr.P.C for

securing presence of the lady before him. Vide order dated 5.6.2007 the Magistrate issued warrant as applied for in the name of SHO Police

Station Handwara, directing him to produce said Mst. Rafiqa and the minor child before him on 7th June 2007. Matter appears to have been

finally concluded vide magistrate's order dated 11.06.2007 wherein while opining that the lady was wedded to respondent aforesaid and residing

with him as such the question of confinement much less amounting to an offence could not arise at all and disposed of the proceeding accordingly.

Aggrieved thereby, the petitioner, invoking jurisdiction of this Court u/s 561-A Cr.P.C has sought intervention in the matter.

Before proceeding ahead, it would be appropriate to notice that the provision invoked saves the power of this Court to make orders for giving

effect to lawfully passed orders and to prevent abuse of the process of court, or to provide protection against an unlawful order or secure justice in

a particular case. Currently however nothing of the sort is being asked for particularly because with issuance of warrant u/s 100 Cr.P.C and

subsequent orders passed by the magistrate the process of court in the matter has already come to a logical end, without any apparent abuse. As

regards injury under an unlawful order, or apprehension of injustice it would be appropriate to notice the statement of concerned lady purporting to

have been recorded by the magistrate below wherein while saying that she was earlier married to petitioner but later her brothers married her with

respondent with whom she was presently living though not with complete liberty-not explained further she has not alleged confinement. The

statement read in totality reveals two noticeable features; First, that allegedly the lady had not been divorced by first husband when her second

marriage with respondent was contracted, and secondly that despite the so called limited liberty whatever it means, she was doubtless residing with

respondent as his wife. Both these things taken together can either constitute an offence of biandry or a civil matrimonial dispute, to the total

exclusion of any element of confinement which fact by itself agitates against indulgence in the matter by this Court.

Accordingly, the petition appearing to be unfounded is dismissed. Copy of this order be communicated to the magistrate below.

Disposed of.