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2009 DIGILAW 298 (JK)

Mohd. Farooq v. Gulshan Wani

2009-06-05

SUNIL HALI

body2009
1. Through the medium of the present criminal revision, the petitioner has challenged order dated 04.08.2007 passed by the learned Sub Judge, Reasi whereby complaint filed under Sections 494/497/120-B RPC has been dismissed. 2. The facts of the case are that a complaint came to be registered before the Court of learned Sub Judge, Reasi by the complainant-petitioner, wherein it is stated that accused-respondent No.1 has entered into marriage with the petitioner on 25.02.2007 in accordance with Shuriat and during the subsistence of marriage, she solemnized another marriage with respondent no.2 on 07.05.2007. It is unlawful for a Mohammandan women to have more than one husband at a same time. The second marriage by a woman, who has her husband alive and has not been divorced by him, is void. The respondents 3 to 5 have conspired in the commission of second marriage between respondents 1 and 2. The complaint was got enquired upon under Section 202 Cr.P.C. through Sub Divisional Police Officer, Mahore, who reported that after recording the statements of the witnesses of both the sides and keeping in view the documents produced in support thereto, he has come to the conclusion that the question with regard to validity of Nikhanama dated 25.02.2007 and Nikahanama dated 07.05.2007 needs deep probe by the civil/marriage court to ascertain their validity. 3. At the time of first Nikhanama Mst. Gulshan Wani-respondent No.1 was minor of 17-1/2 years of age, whereas in the subsequent Nikahana, she was major and was capable of taking a decision. It is further stated that under the Muslim Personal Law, the petitioner also approached the Mufti-e-Azam of the State and on presentation of the facts before the Personal Law Board of the State, it issued a Fatwa against respondents 1 and 2 for having contracted second marriage while the first marriage was in existence. The learned trial Court after hearing the complainant dismissed the complaint vide Order dated 04.08.2007, which is subject matter of challenge in the present petition, as indicated above. 4. The petitioner states that following vital and important questions of law are necessary for adjudication of the present revision:- "(a) Whether the second marriage is valid under Personal Law? (b) Whether the Muslim women can have plurality of husbands when first marriage subsists? (c) Whether the respondents are liable to be prosecuted under Section 494 RPC? 4. The petitioner states that following vital and important questions of law are necessary for adjudication of the present revision:- "(a) Whether the second marriage is valid under Personal Law? (b) Whether the Muslim women can have plurality of husbands when first marriage subsists? (c) Whether the respondents are liable to be prosecuted under Section 494 RPC? (d) Whether Sub Judge Reasi could dismiss the complaint without discussing the whole evidence recorded by the Inquiry Officer?" 5. Learned counsel for the petitioner submits that the learned trial court has taken into consideration the statement made by respondent no.1 alone before the Inquiry Officer. The same has not been appreciated in its right perspective. It is stated that there was no evidence suggesting that first marriage was not consummated. The learned trial court has taken note of repudiation of Marriage Act 1999 and its provision thereto when there was no evidence regarding repudiation of the marriage. It is further stated that the conclusion arrived at by the learned trial court that a Muslim girl of 17-1/2 years of age if married to someone, can repudiate the marriage after six months is misconceived. It is thus stated that learned trial court has not appreciated the facts made in the complaint that the second marriage is prohibited both under Personal Muslim Law as well as under Section 494 RPC. It is further stated that Fatwa with regard to two marriages was issued by the competent authority which has neither been discussed nor even looked into by the learned trial court. It is thus stated that the learned trial court has wrongly dismissed the complaint. 6. The respondents were put on notice on 10.09.2007 but no one has put in appearance to contest this petition. 7. I have heard learned counsel for the petitioner and perused the record. 8. A complaint stood filed before the Sub Judge, JMIC, Reasi by the petitioner against the respondents under Sections 494/497/120-B RPC. The allegations contained in the complaint were that during the subsistence of first marriage, respondent no.1 contracted second marriage with respondent no.2. The complaint was supported by a Nikanama which was registered by Masjid Aslmia, Jammu. The learned Magistrate referred the complaint to the SDPO, Mahore for inquiry under Section 202 RPC. The allegations contained in the complaint were that during the subsistence of first marriage, respondent no.1 contracted second marriage with respondent no.2. The complaint was supported by a Nikanama which was registered by Masjid Aslmia, Jammu. The learned Magistrate referred the complaint to the SDPO, Mahore for inquiry under Section 202 RPC. After recording the statements of the witnesses of both sides, it was concluded that the question with regard to the validity of Nikhanama executed on 25.02.2007 and Nikhanama executed on 07.05.2007 needs deep probe by the civil court in order to ascertain the validity of the marriage. It is further revealed from the report that age of the girl was 17-1/2 years at the time when first Nikhanama was executed, while Nikhanama dated 07.05.2007 shows that she was major. On this report being submitted by the SDPO, Mahore, the learned Magistrate dismissed the complaint after passing a detailed order. 9. While dismissing the complaint, the following things have been enumerated in the order:- (a) That at the time of first Nikanama she was less than 18 years, while as at the time of second marriage she was of 18 years. The first marriage was not consummated; (b) That under the Dissolution of Muslim Marriage Act, 1999, a Muslim wife can repudiate the marriage that has been solemnized during her minority on attaining the age of 18 years, provided that the marriage has not been consummated; (c) That in absence of decree of Dissolution from the competent court whether first marriage was contracted by respondent no.1, the same is required to be decided by the civil court. 10. It is under these circumstances, the present revision petition has been filed. 11. The power of the Magistrate to issue process is not automatic unless sufficient material is available on the file to proceed in the matter. The findings of the trial court indicated hereinabove clearly reveal that it has passed the order without discussing the material accompanying the complaint. At this stage, the only question required to be seen is whether there is sufficient material on the basis of which the process could be issued. The findings of the trial court indicated hereinabove clearly reveal that it has passed the order without discussing the material accompanying the complaint. At this stage, the only question required to be seen is whether there is sufficient material on the basis of which the process could be issued. The complaint and inquiry report of the SDPO, Mahore clearly reveal the following things :- (a) That the first marriage is admitted; (b) That the second marriage is admitted; (c) That the Fatwa is admitted; and (d) That the statements of witnesses of both sides have been examined. 12. The contents of the complaint clearly reveal that the second marriage has been contracted by respondent no.1 during the subsistence of first marriage. The power of repudiation after attaining the age of 18 years was required to be proved before the first marriage could be repudiated on this ground. There was no proof of repudiation. The trial court has put the cart before the horse by stating that repudiation has to be confirmed by the civil court before the issuance of process. It was not a case of repudiation of marriage, but a case where it was alleged that respondent no.1 during the subsistence of first marriage had contracted second marriage which was required to be looked into by the learned trial court. 13. The trial court concluded that the respondent no.1 was below the age of 18 years at the time of first marriage and was major when she contracted the second marriage. It has relied upon the statement of respondent no.1 alone. The statement of respondent no.1 in respect of age was not conclusive as it was required to be proved either by procuring school leaving certificate or by conducting ossification test by a Doctor. 14. While examining the report of the Investigating Officer, the learned Magistrate has not made any mention of the statement of the complainant and other witnesses recorded in support of his contention, but he solely relied upon the statement made by respondent no.1 before the Investigating Officer. The learned trial court has returned the findings as if it had concluded the trial without actually putting the accused on trial. This conclusion is based upon surmises and conjectures. In my opinion, there was sufficient material available with the learned Magistrate to proceed in the matter which he has failed to do. 15. The learned trial court has returned the findings as if it had concluded the trial without actually putting the accused on trial. This conclusion is based upon surmises and conjectures. In my opinion, there was sufficient material available with the learned Magistrate to proceed in the matter which he has failed to do. 15. I, therefore, allow this revision petition and set aside the order dated 04.08.2007 passed by the learned Sub Judge, JMIC, Reasi and direct the learned Magistrate to pass fresh order after examining the material placed by the complainant. 16. Let complainant through his counsel appear before the learned trial court on 02.07.2009.