Parveen Kouser and anr vs State of J&K and ors

Two petitions- one bearing HCP No. 53/2017 and the other bearing No.38/2018 filed under section 561-A Cr.P.C require to be determined

and decided by this order. The background facts in which HCP No. 53/2017 has been filed before this Court are that the petitioner, in this

petition, namely, Mohd. Farooq contends that he married respondent No.11, namely, Tabassum Bano on 15.11.2017 and this marriage was

solemnized in accordance with the norms of Muslim Personal Law under Shariat Application Act, at Poonch, in presence of the witnesses. The

petitioner has proceeded to state that after the solemnization of the marriage, they lived happily as husband and wife. However, after sometime, the

respondent Nos. 5 to 10 started interfering into their matrimonial life and they threatened to kill the petitioner and respondent No.11. In furtherance

of this design, the respondent Nos. 5 to 10 took away the respondent No.11 from his custody, whereafter the petitioner approached the

respondent Nos. 3 and 4 for entrusting the custody of his wife to him but to his utter dismay he was told by respondent Nos. 5 to 10 that they

want to marry her with some other person which was not accepted by the respondent No.11 and, as such, the petitioner apprehends that the

respondents will kill his wife. In the end, the petitioner pleaded and prayed that the Senior Superintendent of Police, Poonch, i.e, respondent No.3

may be directed to recover respondent No.11 from the illegal confinement of respondent Nos. 5 to 10 and she may be produced before this Court

as he being the husband of the respondent No.11 is worried about her welfare and well being. On the date of the presentation of the petitioner, this

Court issued notice to respondent Nos. 5, 7 and 10 in the first instance, to be served through Police Station, Mandi, i.e, respondent No.4.

During the pendency of the aforesaid petition, the petitioners filed a petition under section 561-A Cr.P.C seeking quashing of proceedings

initiated in an application filed under section 100 Cr.P.C in the case titled Mohd. Farooq v/s Mohd. Shafi and ors. bearing file No.569 pending

before the Court of Learned Sub-Judge Special Mobile Magistrate, Poonch and the order dated 23.01.2018 passed in the aforementioned

petition, primarily, on the ground that Tabassum Bano and Javed Iqbal have entered into a wedlock on 12.07.2017 and the exercise initiated by

respondent No.3, that is the petitioner in HCP No.53/2017 is the outcome of an afterthought and is not sustainable.

Heard and considered.

This Court by order dated 08.02.2018 directed that the statement of Tabassum Bano, i.e, respondent No.11 in HCP No.53/2017, who was in

attendance before this Court, be recorded by the Learned Registrar (Judicial) of this wing of the High Court. The statement of Tabassum Banoo

recorded by the Learned Registrar (Judicial) of this wing of the High Court is that she got married to Javed Iqbal S/o Mohd. Bashir R/o Bedar

Balnoi, Tehsil Mandi, District, Poonch before a period of seven months. Mohd. Farooq, the petitioner in HCP along with his brother, his uncle and

brother-in-law and his relatives abducted her at a time when she was on way to Poonch. They took her to the house of Mohd. Afzal, i.e, uncle of

the petitioner. They confined her there for a period of two days during which Mohd. Afzal thrashed her and his brother Mushtaq Ahmed violated

her sexually. She was locked in a store-room. When her uncle and mother came to know about this episode, on 17.11.2017 they lodged a report

before the authorities of Police Station Mandi, Poonch. On seeing the police authorities, the accused ran away from the spot. She was freed from

the shackles of the accused by the Police authorities. She was taken to the Police Station from where her custody was handed over to her mother

in the view and presence of her relatives. The case titled, Mohd. Farooq v/s State of J&K and others, filed against her (Tabassum Banoo) is false

and frivolous. She has not been confined by the respondents. The petitioner under the garb of the petition filed by him is pressurizing the

respondents to hand over her custody to him. She is the legally wedded and married wife of Javed Iqbal and is living with him happily.

Taking into consideration the statement of Tabassum Bano, there appears to be no merit and substance in the petition of Mohd. Farooq wherein

he has stated that Tabassum Bano is his legally married and wedded wife and that she has been confined by the respondents in their house against

her will and wish. On the face of statement of Tabassum Bano, the Habeas Corpus petition filed by the petitioner entails dismissal and is

accordingly dismissed.

As regards the other petition bearing No.38/2018 filed under section 561-A Cr.P.C, the contention of the applicant in the application, i.e,

Mohd. Farooq v/s Mohd. Shafi sub-judice in the Court of Learned Sub-Judge Special Mobile Magistrate, Poonch is that Tabassum Bano is his

legally wedded and married wife and that the non-applicants have forcibly taken his wife from his custody and have confined her in their house.

The application on the touchstone of the statement of Tabassum Bano appears to be devoid of any truth and substance as she has denied the

contents of the application in entirety. She has knocked the bottom out of the contention of the applicant propounded in the application under

section 100 Cr.P.C that she has been confined by the non-applicants. Therefore, the petition of the petitioner needs to be allowed and accordingly

the proceedings initiated in the application filed under section 100 Cr.P.C titled, Mohd. Farooq v/s Mohd. Shafi pending before the Court of

Learned Sub Judge Special Mobile Magistrate, Poonch bearing file No.569 and the other proceedings emanating therefrom, are quashed. The

Police authorities shall be at liberty to investigate the case, the source of which is the complaint lodged by the uncle and the mother of Tabassum

Bano and bring it to its logical conclusion.

Disposed of along with the connected MPs.