Allahabad High Court
Smt. Salma And Anr. vs State Of U.P. And 2 Others on 23 November, 2015
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 38
Case :- WRIT - C No. - 63627 of 2015
Petitioner :- Smt. Salma And Anr.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Atul Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Mithal,J.
1. Heard learned counsel for the petitioners, learned standing counsel appearing for the State of U.P.
2. The petitioners have invoked the writ jurisdiction of this Court for a direction upon the respondent No.2 to provide protection and security to them as respondent no.3 with the Police help is interfering in their peaceful living.
3. Learned counsel for the petitioners contends that both of the petitioners are major and have married according to Muslim rituals. In support of their age and marriage they have enclosed photostat copies of the Adhar Card and Nikahnama dated 08.11.2015. A certificate of Kazi, Muzaffarnagar has been filed to support the genuineness of the marriage.
4. Learned counsel for the petitioners further contend that the marriage between the petitioners have been certified by the Kazi Muzaffarnagar, U.P. appointed under the Kazis Act 1880.
5. The aforesaid Act authorizes the State Government to appoint Kazi for any local area after consulting the principal Mohammadan residents of that area. The aforesaid Act vide Section 4 clearly lays down that no Kazi appointed under the Act shall be deemed to have been conferred with any judicial or administrative powers and that it is not necessary to have the presence of a Kazi or Naib Kazi at the celebrations of any marriage or the performance of any rite or ceremony.
Section 4 of the Act is reproduced herein below :-
" 4.Nothing in Act to confer judicial or administrative powers; or to render the presence of Kazi necessary; or to prevent any one acting as Kazi - Nothing herein contained, and no appointment made hereunder, shall be deemed -
(a) to confer any judicial or administrative powers on any Kazi or Naib Kazi appointed hereunder; or
(b) to render the presence of a Kazi or Naib Kazi necessary at the celebration of any marriage or the performance of any rite or ceremony ; or
(c) to prevent any person discharging any of the functions of a Kazi."
6. A plain reading of the provisions of the Act clearly demonstrate that it is an enactment authorizing the State Govt. to appoint a Kazi for a local area and nothing more. It does not envisages to vest any powers either administrative or judicial upon the Kazis so appointed under the Act.
7. The Act does not gives any power to a Kazi to certify any marriage. In view of the above, the certificate of marriage dated 08.11.2015 issued by the aforesaid Kazi has no authenticity in law.
8. Notwithstanding the above, as the petition is supported by the joint affidavit of both the petitioners and they are otherwise prima-facie of marriageable age and have performed Nikahnama according to Muslim Rites and Customs, let notice be issued to respondent no.3.
9. List for admission/final disposal on the return of notice.
10. In the meantime, without expressing any conclusive opinion regarding marriageable age of both of them, validity of their marriage or the genuineness of the marriage certificate produced or the change of their religion, the concerned police authorities are directed to ensure that they are not put to any threat or torture and that their married life is not disturbed by any one, provided they apply for registration of their marriage in accordance with the provisions of the Uttar Pradesh Hindu Marriage Registration Rules,1973/The Special Marriage Act,1954 within a period of one month from today and file the certificate of registration of marriage before the Court on affidavit, within two months from today, failing which, the interim protection granted herein-above shall automatically cease to operate.
11. It is made clear that filing of this petition or this order would not be treated as proof of valid marriage between the petitioners and that it would not affect any investigation, if any, pending before the police authorities in connection with their age or marriage.
Order Date :- 23.11.2015 / RKM
