Jammu & Kashmir High Court - Srinagar Bench
Dated: 7Th Of August vs Union Territory Of Jammu And ... on 7 August, 2023
Serial No. 02
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 91/2023
CM Nos. 3046/2023 & 4366/2023
Dated: 7th of August, 2023.
Rabiya Bashir
... Appellant(s)
Through: -
Mr S. H. Thakur, Advocate.
V/s
Union Territory of Jammu and Kashmir & Ors.
... Respondent(s)
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE
(ORDER)
[Chowdhary-J:]
01. This intra Court appeal, under Clause 12 of the Letters Patent,
has been preferred by the Appellant against the final Order/ Judgment dated
7th of April, 2023 passed by the learned Single Judge in OWP No.30/2017,
whereby and whereunder the said Writ Petition filed by the Writ Petitioner/
Appellant herein stands dismissed.
02. The case of the Writ Petitioner/ Appellant herein is that she
was forced to enter into a wedlock with Respondent No.8, who had already
contracted three marriages. It is alleged that the Respondent No.8 forced the
Appellant to sign the Nikah Nama and marriage agreement, whereafter she
was kidnapped and kept in illegal confinement till 15 th of December, 2016.
The Appellant further alleges that she was sexually exploited by the
Respondent No.8 on the basis of a sham Nikah Nama and marriage
agreement and that, after having satisfied his lust, the Respondent No.8
threw the Appellant out from his house. The Appellant claims to have given
birth to a child and even that child was taken away by Respondent No.8 on
different excuses. According to the Appellant, she has lodged FIR No.
LPA No. 91/2023
CM Nos. 3046/2023; 4366/2023
27/2016 in Women's Police Station, Rambagh, Srinagar for the commission
of offences punishable under Sections 498-A and 406 RPC against the
private Respondents, but no concrete action was taken against them by the
police authorities concerned. It is pleaded that since the Appellant and her
family members were/ are being threatened by the private Respondents and
the police authorities concerned did not take any action in the matter, the
Appellant was constrained to file the Writ Petition.
03. The private Respondents filed Objections before the Writ
Court, stating therein that the Nikah Nama was executed by the Appellant
and Respondent No.8 out of voluntary consent of the parties in accordance
with Muslim Law and that, out of the said wedlock, a male issue was born
on 15th of December, 2016. It was further pleaded that the Respondent No.8
was implicated in a false and frivolous case and he has been granted bail by
the learned trial Court in the said case. It was also stated that after marriage,
the attitude of the Appellant remained hostile towards the Respondent No.8
and his family members, which resulted in a matrimonial dispute between
the parties. The private Respondents also contended that the Appellant has
already filed a Maintenance Petition under Section 488 of the J&K Code of
Criminal Procedure before the court of competent jurisdiction.
04. The official Respondents, in their Reply before the Writ Court,
submitted that, on the basis of the complaint lodged by the Appellant, FIR
No. 27/2016 for the commission of offences punishable under Sections 498-
A and 406 RPC was registered by Women's Police Station, Rambagh,
Srinagar, wherein, after completion of investigation, a charge sheet was laid
against the Respondent No.8 before the Court of competent jurisdiction.
05. The Writ Court, after hearing the parties, dismissed the Writ
Petition filed by the Appellant herein, by holding that the same was devoid
of any merit and gave liberty to the Appellant that in case she feels any
threat at the hands of the private Respondents, she shall approach the police
authorities concerned, who, upon assessing the threat perception, shall
provide adequate security to the Appellant and her family members.
LPA No. 91/2023
CM Nos. 3046/2023; 4366/2023
06. Learned Counsel for the Appellant submitted that the Writ
Court has passed the impugned order without appreciating the controversy
involved in the matter in its right and correct perspective. He has argued
that the official Respondents, despite being approached by the Appellant
many a times, did not choose to redress the grievance of the Appellant by
providing adequate security to her life and that of her family members.
07. We have heard the learned Counsel for the Appellant and have
perused the pleadings on record.
08. The Appellant, in her Writ Petition, had alleged that she was a
post-graduate girl of 28 years and belonged to an educated family. She
claimed to have been trapped by the Respondent No.8, namely, Sahil
Ramzan Pathan alias Showkat Ali Pathan in his web, in league with the
other private Respondents and was forced to marry him, who had already
contracted three marriages. It was also alleged that the Respondent No.8
had exploited the relationship of marriage and, when this fact came to her
knowledge, she was attempted to be murdered; that the Respondent No.8 is
a notorious militant from downtown area of Srinagar and he had kept the
Appellant under illegal confinement till 15th of December, 2016, when she
was shifted to Hospital with the intervention of local Intizamiya Committee
of Masjid Shareef; that due to the atrocities of the private Respondents, the
Appellant and her family was made to shift from different locations of
Rajbagh, Rangreth, Budgam, etc., and she was sexually exploited and then
she was asked to go to her parents, however, the Appellant refused to do the
same as she was, by that time, pregnant and the pregnancy was at the
advanced stage and she was admitted to LD Hospital, where she delivered a
male baby; that the Appellant was left unattended at the Hospital, as such,
she lodged a case at Women's Police Station, Rambagh, Srinagar, vide FIR
No. 27/2016 under Sections 498-A, 406 RPC, which is under investigation.
09. It was further alleged that the Appellant was neglected by
Respondent No.8 and his other family members and the Appellant and her
family were threatened and due to the said threats, the Appellant and her
family were forced to shift their residence from Bemina, Srinagar to
LPA No. 91/2023
CM Nos. 3046/2023; 4366/2023
Sumbal, Safapora, Ganderbal in their native village. It was alleged that the
official Respondents did not take any action in the matter and also did not
provide protection to her and her family members, whereas the private
Respondents did not allow the Appellant to move out from her locality as
they demanded to pay them Rs.40.00 lacs, which illegal demand cannot be
satisfied by the Appellant and her family.
10. Through the medium of the Writ Petition the Appellant had
prayed to command the official Respondents to take immediate appropriate
measures to ensure the safety of the life of the Appellant and her family and
their property, which is at stake at the hands of the private Respondents and
proceed against the private Respondents in accordance with law and file a
Compliance Report before the Court, with a further prayer to quash the
Nikah Nama dated 9th of September, 2015 and the marriage agreement
dated 10th of September, 2015, as being product of a fraud, deception,
means of exploitation and sham documents and that the official
Respondents be directed to take strict action against the private Respondent
No.8, along with other Respondents who were involved in the
manufacturing of these fake documents.
11. The learned Writ Court, after hearing both the sides, has
observed that the case registered at the instance of the Appellant as
complainant, after investigation, had culminated into the charge sheet
against the Respondent No.8 which is seized by the competent Court and it
will not be permissible in law to usurp the powers of the learned Magistrate
to prejudge the issue involved. As regards the other contention of not
providing maintenance to the Appellant, it has been recorded that the
Division Bench of this Court, while deciding an appeal filed against interim
Order dated 29th of January, 2022, has noted that the execution Petition
regarding execution of maintenance Order passed by the learned Judicial
Magistrate (Judge Small Causes), Srinagar is pending and liberty had been
given to the Executing Court to proceed with the execution and bring it to a
logical conclusion within a period of four months, therefore, the
maintenance part of the grievance of the Appellant had also been taken care
of and no further directions are required to be passed in the Writ Petition.
LPA No. 91/2023
CM Nos. 3046/2023; 4366/2023
With regard to the challenge thrown to the Nikah Nama and the agreement
of marriage by terming the same as sham documents, based upon fraud, it
was observed that the question whether or not these documents are result of
fraud or deception becomes a disputed question of fact, which cannot be
gone into in Writ jurisdiction and that the same can be challenged by way
of a civil Suit before the appropriate forum. Addressing the main contention
of the Appellant with regard to her protection and that of her family
members, the Writ Court has left it open to the Appellant to approach the
concerned police authorities and it has been held that if there is any
necessity for grant of police protection, the police can, after assessment of
threat perception to the Appellant, provide adequate security to the
Appellant and her family.
12. The learned Counsel for the Appellant, to a pointed query from
the Court as to what was bad in the impugned Order and what has been left
unaddressed by the Writ Court, could not justify any of his contentions,
except reiterating the plea that despite moving to the official Respondents,
they have not provided sufficient protection to the Appellant and her
family, however, the learned Counsel has not been able to narrate any
incident with regard to any criminal activity committed against the
Appellant by the Respondent No.8 or any other private Respondents,
whereupon the action was not taken by the official Respondents.
13. In the light of the above analysis, the learned Writ Court, in
our opinion, has dealt with the matter in its right perspective, addressing all
the issues raised in the Petition filed by the Appellant and those urged at the
bar. It is pertinent to note here that at the instance of the Appellant, the
official Respondents had already registered FIR which has culminated into
a charge sheet and same is stated to be pending determination before the
Court of Magistrate. The maintenance and its execution proceedings are
also pending before the Court of Magistrate, as such, that aspect has also
been taken care of under the legal provisions.
14. Insofar as disputing the Nikah Nama and marriage agreement,
allegedly executed on behalf of the Appellant and Respondent No.8, is
LPA No. 91/2023
CM Nos. 3046/2023; 4366/2023
concerned, same are purely disputed questions of fact, which cannot be
gone into under Writ jurisdiction and, therefore, it has been rightly observed
by the learned Writ Court that the Appellant can seek this remedy before
the appropriate forum of civil Court.
15. With regard to the main question of providing protection is
concerned, the Writ Court has left it open to the Appellant to approach the
concerned police authorities with her grievance and the police had been
directed to provide her and her family protection as required in view of the
threat perception.
16. The Appellant, in our opinion, has all the fora available to seek
the redressal of her grievances which cannot be gone into by the Writ
Court. In that backdrop, the Writ Court has passed the order impugned in a
lucid and reasoned manner and same, thus, does not call for any
interference in this intra Court appeal.
17. Viewed in the context of what has been said and done
hereinabove, we do not find any illegality or perversity in the impugned
final Order/ Judgment passed by the learned Single Judge, as would warrant
its interference from this Court in appeal. Accordingly, the Letters Patent
Appeal is dismissed, along with the connected CM(s).
18. Before parting with this Order, it is reiterated by this Court that
in case any complaint/ representation is moved by the Appellant, the
concerned Superintendent of Police shall address the grievance of the
Appellant with regard to any threat to the safety of her life or her family and
take appropriate measures for their protection, after assessing threat
perception.
(M. A. CHOWDHARY) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
August 7th, 2023
"TAHIR"
