SHAFKAT IQBAL vs STATE OF JAMMU & KASHMIR AND OTHERS

This Habeas Corpus Petition has been filed by the petitioner for production of proforma respondent, Alia alias Komal Mahajan, who, according to

the petitioner, is his legally wedded wife and has been kept in wrongful confinement/unlawful custody by her parents, herein respondents 5 & 6 and

respondents 7 & 8.

Case set up by the petitioner, precisely, is that the petitioner and proforma respondent were in love. They requested their parents for their marriage,

which, however, was rejected by relatives of the proforma respondent. They being capable of understanding their wellbeing/welfare performed Nikah

on 24.01.2017 in accordance with Muslim Law and customs. They also executed marriage agreement on the same day and on the same day proforma

respondent renounced Hindu Religion and embraced Islam at Darul-Uloom Husani Nizamia Raza Nagar, Bathindi Nallah, Jammu. As respondents 5

to 8 were harassing and threatening the petitioner and proforma respondent, a complaint to that effect was filed in the court of Judicial Magistrate,

Samba in which statement of proforma respondent was recorded, who stated that she was major and has solemnized marriage voluntarily and without

any coercion and that respondents 5 to 8 were threatening and assaulting her. As threats and harassment from respondents 5 to 8 did not stop so they

approached this Court in OWP No. 126/2018 seeking police protection for them. That petition was disposed of by this Court on 30. 1. 2018 with a

direction that in case they submit a representation to Senior Superintendent of Police (SSP), Jammu, herein respondent No.2, action shall be taken in

light of law laid down by the Supreme Court in Lata Singh v. State of U.P. and anr, (2006) 5 SCC 475. Petitioner provided copy of the said order to

the SSP, Jammu on 01.02.2018. It is alleged by the petitioner that on the same day his father receive a call from SDPO, Bakshi Nagar, Jammu asking

him to send the petitioner and the proforma respondent to Police Station, Janipur for recording their statements for further action in the matter. They

reached the Police Station where respondents 5 to 8 were already present. On enquiry by the police, the proforma respondent admitted the factum of

marriage and expressed her will to live with the petitioner. Respondents 5 to 8 raised hue and cry, and custody of the proforma respondent was given

to them without any valid reason and petitioner was forced out of Police Station. The Police Officers, herein respondents 2 to 4, had succumbed to the

pressure of some 50 persons present there and had assured the petitioner and his father that within few days after settling of the situation, custody of

petitioner’s wife will be handed over to him. Petitioner has stated further that he made a complaint to SSP, Jammu on 06.02.2018 to take action

against respondents 5 to 8 and to hand over the custody of his wife to him but no action was taken by the SSP. His wife has been kept in illegal

confinement by respondents 5 to 8, alleges the petitioner.Â

This petition coming up on 19.02.2018, this Court, besides issuing notice to respondents, issued a direction to respondent No.2 to produce the

proforma respondent before this Court. She was so produced and is presently lodged in Neha Ghar, Kachi Chawani, Jammu under the order of this

Court. Respondents 5 to 8 question the petitioner’s claim for release of the proforma respondent and challenge maintainability of this Habeas

Corpus petition by him.

Learned Senior Advocate, Mr. Sunil Sethi, appearing on behalf of respondents 5 to 8, submitted vehemently that the alleged marriage/Nikah of the

petitioner with proforma respondent is not illegal only but amounts to commission of a criminal offence by the petitioner and all those associated with

so called conversion of proforma respondent from Hinduism to Islam and the alleged Nikah for the reason that the alleged Nikah contravenes the

Infant Marriage Prevention Act, 1985 (for short, the Act) as the petitioner was less than 21 years in age at that time. Learned counsel pointed out

that in the Nikahnama produced by the petitioner (Annexure A), petitioner’s age is recorded as 18 years and in the Marriage Agreement dated

24.01.2017 his date of birth is shown as 11.04.1998.

Learned counsel then referred to section 2(2) of the Act, which defines ''infant boy'' as a boy who has not completed 21 years of age and submitted

that under sub-section (3) of section 2 marriage of an infant boy means “infant marriage†and under section 4, every person who causes marriage

of an infant girl or an infant boy or who knowingly aids and abets such a marriage is liable to be punished. Learned counsel, thus, submitted that the

alleged Nikah between petitioner and proforma respondent is an offence and no right to claim custody or company of the proforma respondent

accrues to the petitioner on the basis of a marriage performed in contravention of legal provisions. Learned counsel argued also that the alleged Nikah

is illegal also for the reason that the alleged conversion of religion was performed for the purpose of marriage of a non-muslim girl with a muslim boy

and any conversion of religion performed for the purpose of marriage is illegal. Learned Senior Advocate, therefore, concluded that the alleged

marriage being contrary to legal provisions and illegal would confer no right on the petitioner to maintain this petition and claim custody of the proforma

respondent and the petition is liable to be dismissed in limine. Learned counsel cited  judgments of Allahabad High Court in  Smt. Noor Jahan

Begum alias Anjali v. State of U.P. and ors. dated 16.12.2014 and argued that in each of those batch of petitions seeking protection for married

couples, conversion of the girl and Nikah were challenged and the court after finding that alleged conversion was not bona fide or valid had dismissed

the writ petition. Learned counsel cited also Madras High Court judgment in M. Mohamed Abbas v The Chief Secretary, Government of Tamil Nadu

and ors. AIR 2015 Mad 237 and Calcutta High Court judgment in Rahul Amin Sekh v The State of West Bengal and Ors. W. P. No. 8619(W) 2015

dated 16.6.1915.

Per contra, learned counsel for petitioner, Mr. S. S. Ahmed, Advocate submitted that the Act has no application to the marriage between petitioner

and the proforma respondent in terms of the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007 as petitioner is a Muslim and

proforma respondent has also embraced Islam and their marriage and its validity is governed by Muslim Personal Law. Learned counsel submitted

also that the question raised before this Court through the medium of present petition primarily relates to life and liberty of the proforma respondent

and not the right of the petitioner alone so question relating to the legality of the marriage neither can be raised nor decided by this Court in this

petition. In this regard, learned counsel referred to and produced copy of a DB judgment dated 24.05.2017 of Kerala High Court in W.P. (Crl) No.

297 of 2016 and Order dated 08.03.2018 passed by the Supreme Court in the Special Leave Petition in SLP (Crl) No. 5777 of 2017 against the said

judgment. Learned counsel submitted that the fact situation in W.P. (Crl) No. 297 of 2016 is identical to the fact situation of case on hand.Â

Questions relating to validity of the alleged 'Nikah'/marriage of the petitioner and the proforma respondent and the validity of the alleged conversion

of the proforma respondent from Hinduism to Islam, effect of the contravention of the Act because of infancy of petitioner under the Act and whether

the validity of marriage can be determined in this Habeas Corpus Petition is one aspect of this case. The other aspect, which is more important and

needs to be addressed on priority basis, relates to life and liberty of the proforma respondent, who undisputedly is a major girl, aged 23 years. She

claims to have tied nuptial knot with petitioner and has expressed her will and desire before appropriate forums to live in the company of petitioner as

his wife. She stated so for the first time after the date of alleged marriage in her statement (Annexure B) before the Judicial Magistrate (Munsiff),

Samba on 30.01.2017 in the complaint filed by her against her father and others. She again stated so in OWP No. 126/2018 (supra) filed by both of

them in this Court whereby they sought adequate security to be provided to them. Above all, she has clearly stated so when she was brought before

this Court in this writ petition on 13.03.2018. She was examined by me in the open Court in presence of the counsel appearing on behalf of

respondents 5 to 8 and all her relatives who were present in the Court. It was stated by her that she is 23 years old and has married with petitioner out

of her free will, that she was taken to Police Station, Women Cell, by one SHO and that she wants to go to and live in the house of her husband.Â

In view of the clear and persistent expression of her will and desire by the proforma respondent, this Court cannot but allow her to decide her

lawful destination, which for the time being she has chosen as the company of the petitioner, whom she claims to be her husband and cannot allow any

hurdle or shackle to be caused in pursuing her endeavour. Having read the judgments relied upon on each side, I am inclined to agree with learned

counsel for the petitioner that fact situation of this case is more similar to the fact situation in WP (Crl) No. 297 of 2016 as compared to the judgments

relied upon by learned counsel for respondents 5 to 8. In that case, High Court of Kerala inter alia declared the marriage null and void and handed

over custody of the girl to her father. In the Special Leave Petition, the Supreme Court vide order dated 08.03.2018, allowed the appeal and while

reserving the reasoned judgment, held that “High Court should not have annulled the marriage between appellant No.1, Shafin Jahan and

respondent No.9, Hadiya alias Akhila Asokan in Habeas Corpus Petition under Article 226 of the Constitution of India†and allowed respondent No.9

therein liberty to pursue her future endeavours according to law. Â

In the facts and circumstances of the case and in view of the order dated 08.03.2018 (supra) passed by the Supreme Court, I am inclined to take a

view that adjudication on the questions raised by the learned counsel for respondents 5 to 8 can defer for determination after detailed objections are

filed on behalf of the respondents and, in the meantime, reasoned judgment of Hon’ble Supreme Court in aforementioned case is out.Â

For all that said and discussed above, proforma respondent, Alia alias Komal Mahajan, is allowed to choose and go to a lawful place of her

choice, may it be the company of the petitioner, whom she claims to be her husband, or the house of her parents. She be released from the Neha

Ghar, where she is presently lodged and a direction is issued to respondents 2 to 4 to properly escort her to the place of her choice.

Petitioner shall produce a copy of this order each in the Neha Ghar, Kachi Chawani and in the office of respondent No.2, that is, SSP, Jammu for

information and compliance.

List in the week commencing 9th April, 2018.

Objections in the meantime.