Allahabad High Court
Shamim @ Naseem @ Naimullah vs State Of U.P. And 2 Others on 12 August, 2013
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 54
Case :- APPLICATION U/S 482 No. - 23018 of 2013
Applicant :- Shamim @ Naseem @ Naimullah
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- A. Kumar Srivastava,Upendra Kumar Mishra
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Bala Krishna Narayana,J.
Heard learned counsel for the applicant and learned A.G.A.
The applicant by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 06.05.2013 passed by Additional Chief Judicial Magistrate, Kushi Nagar, in Case Crime No. 165 of 2012 under Sections 363 and 366 I.P.C. P.S. Kotwali Hata, District-Kushi Nagar, by which he has sent opposite party no. 3 namely Sandhya @ Aaisha Fatima to Nari Niketan, Gorakhpur.
Learned counsel for the applicant submitted that Sandhya @ Aaisha Fatima, opposite party no. 3 is the legally wedded wife of the applicant and as per her medical report, keeping in view the two years relaxation which can be given on either side, she is major.He further submitted that the opposite party no. 3 is living with the applicant as his wife and has also been blessed with a male child. He further submitted that since the opposite party no. 3 has married the applicant on her own will, against the wish of her father Hori @ Harbans Pratap, opposite party no. 2, as such he has implicated the applicant in Case Crime No. 165 of 2012 under section 363 and 366 I.P.C. which has been instituted against him on the basis of the First Information Report lodged by the opposite party no. 2 .
Learned counsel for the applicant further submitted that the opposite party no. 3 is major and legally wedded wife of the applicant, yet, the learned Magistrate has by the impugned order passed on the application moved by the opposite party no. 2 under section 91 Cr.P.C., after she refused to go with her father and insisted on living with the applicant, sent her to Nari Niketan Gorakhpur. He lastly submits that in view of the above, the impugned order can not be sustained and is liable to be quashed.
In compliance of the order of this Court dated 16.06.2013 the prosecutrix Sandhya @ Aaisha Fatima appeared before this Court. She was identified by learned counsel for the applicant and Smt. Meena Upadhyaya, constable, who has produced the prosecutrix before this Court.
Upon query being made from her by the Court, she states that her age is more than 18 years and she wants to live with her husband.
From her physical appearance, the prosecutrix appears to be major and in the opinion of the Court she is intelligent enough to take a decision with regard to her welfare. There is no dispute about the fact that the applicant and opposite party no. 3 Sandhya @ Aaisha Fatima have been blessed with a male child.
For the aforesaid reasons I, am of the view, that there is no justification for keeping the opposite party no. 3 in Nari Niketan in pursuance of the impugned order which is apparently illegal.
Accordingly, this application is allowed. The order dated 06.05.2013 passed by Additional Chief Judicial Magistrate, Kushi Nagar, in Case Crime No. 165 of 2012 under Sections 363 and 366 I.P.C. P.S. Kotwali Hata, District-Kushi Nagar, is quashed.
The opposite party no. 3 Sandhya @ Aaisha Fatima is free to go with her husband as per her wish.
Order Date :- 12.8.2013
deepak
