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2013 DIGILAW 1953 (RAJ)

Shahin Naz v. State of Rajasthan Anr.

2013-11-08

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioners challenging the order dated 3.9.2010 passed by the learned Special Judge, Special Court, SC/ST (Prevention of Atrocities) Cases, Jodhpur in revision, whereby the order dated 18.5.2010 passed by the learned Addl. Civil Judge (J.D.) and Judicial Magistrate, First Class No. 8, Jodhpur in Criminal Case No. 16/2010 taking cognizance against the petitioners for the offences under Sections 494 and 120-B I.P.C. was affirmed. 2. Learned counsel for the petitioners at the outset did not press the misc. petition filed on behalf of the petitioner No. 1 - Smt. Shahin Naz. 3. Accordingly, the misc. petition filed on behalf of the petitioner No. 1 - Smt. Shahin Naz is dismissed as not pressed. 4. So far as the remaining petitioners are concerned, it is contented that the petitioner No. 1 - Sarft. Shahin Naz and the respondent complainant No. 2 were involved in matrimonial litigation in the Court of the learned Judge, Family Court, Jodhpur. Learned counsel for the petitioners referred to the proceedings of that Court under Section 125 Cr.P.C., wherein, the respondent No. 2 specifically pleaded that he had divorced the petitioner No. 1 - Smt. Shahin Naz by pronouncing the word `talaq' three times. Learned counsel submits that as the petitioners Nos. 2, 3 and 4 are illiterate persons and belong to Muslim community, they were under the bona fide belief that once the husband pronounced `talaq' three times, then, the marriage would be deemed to have been dissolved under their Personal Law. Learned counsel submits that it is in this background that the petitioners Nos. 2, 3 and 4 participated in the second marriage contracted by the petitioner No. 1 - Smt. Shahin Naz. He submits that the petitioners Nos. 2, 3 and 4 were not aware of the finding recorded by the learned Judge, Family Court, Jodhpur in the order dated 6.9.2008, wherein, the learned Judge, Family Court, Jodhpur observed that merely by pronouncing the word `talaq' three times, it cannot be assumed that there was a valid divorce between the petitioner No. 1 - Smt. Shahin Naz and the respondent No. 2 Mohammad Rafiq. Learned counsel thus submits that so far as the respondents Nos. 2, 3 and 4 are concerned, their prosecution for the offences under Sections 494 and 120-B I.P.C. is uncalled for. Learned counsel thus submits that so far as the respondents Nos. 2, 3 and 4 are concerned, their prosecution for the offences under Sections 494 and 120-B I.P.C. is uncalled for. He thus prays that the orders impugned deserve to be quashed to the extent of petitioners Nos. 2, 3 and 4. 5. Per contra, learned Public Prosecutor as well as Shri Iqbal Sherani learned /counsel for the respondent complainant No. 2 Mohd. Rafiq vehemently opposed .he submissions advanced by learned counsel for the petitioners. Learned , counsel for the complainant submits that the petitioners Nos. 2, 3 and 4 are dose relatives of the petitioner No. 1 Shahin Naz. He submits that they were &veil aware of the proceedings going on between the parties in the Family Court. file has referred to the decision dated 6.9.2008 passed by the learned Judge, family Court, Jodhpur, wherein, the Family Court held that there was no valid divorce between the respondent No. 2 and the petitioner No. 1 - Shahin Naz. He submits that it is an admitted position that the petitioner No. 1 - Shahin Naz married once again during her subsisting marriage with the respondent No. 2 and, therefore, no interference is warranted in the orders passed by the learned subordinate Courts. 6. Heard and considered the arguments advanced at the bar, perused the orders passed by the learned subordinate Courts as well as the record of the case. 7. The circumstances around which the case revolves are peculiar. The marriage between the spouses Shahin Naz and Mohd. Rafiq had fallen apart and latrimonial litigation was initiated way back in the year 2003. The respondent o. 2 gave a registered notice to the petitioner No. 1 - Shahin Naz on 16.2.2003, therein, it was specifically mentioned that he was divorcing the petitioner No. 1 Shahin Naz by pronouncing the word talaq' three times in the presence of the witnesses Asraf Ali and Abdul Sattar. In the evidence recorded before the learned Judge, Family Court, Jodhpur, the respondent No. 2 Mohd. Rafiq istified on oath on 10.2.2005 that he had divorced the petitioner No. 1 - Shahinaz in the presence of Abdul Sattar, Asraf Ali and Kabir Khan. He took a specificance in his cross-examination that he had divorced the petitioner No. 1 shahin Naz and, therefore, there was no question of taking her back to the atrimonial home. Rafiq istified on oath on 10.2.2005 that he had divorced the petitioner No. 1 - Shahinaz in the presence of Abdul Sattar, Asraf Ali and Kabir Khan. He took a specificance in his cross-examination that he had divorced the petitioner No. 1 shahin Naz and, therefore, there was no question of taking her back to the atrimonial home. The Personal Law which prevailed at that time was to the feet that an oral or a registered communication of divorce to the lady by saying of word `talaq' three times would be sufficient to sever the matrimonial ties. 8. In this background, the petitioners Nos. 2, 3 and 4 who are the illiterate Persons were genuinely entitled to entertain a belief that the respondent No. 2 3d divorced the petitioner as per the Personal Law applicable to the parties. i.e., learned Judge, Family Court, Jodhpur held in his order dated 6.9.2008 that divorce pronounced by the respondent No. 2 and the registered notice sent him were not sufficient to terminate the marriage. The respondent No. 2 is previously taking undue advantage of this finding for prosecuting the accused in is case. Un-disputedly, the petitioners Nos. 2, 3 and 4 were not the parties to the proceedings under Section 125 Cr.P.C. 9. In this view of the matter, this Court is of the opinion that inspite of the ending recorded by the learned Judge, Family Court, Jodhpur in the order dated 9.2008 merely by the fact that the petitioners Nos. 2, 3 and 4 participated in the second marriage of the petitioner No. 1 Shahin Naz, they cannot be held to conspirators for the offence of bigamy. They are indeed entitled to the defence of the genuine belief that Mohd. Rafiq had divorced Shahin Naz by pronouncing `talaq' thrice. 10. Thus, this Court is of the opinion that the proceedings of the Criminal Case No. 16/2010 titled as `Mohd. Rafiq v. Smt. Shahin Naz & Ors. to the extent of petitioners Nos. 2, 3 and 4 are grossly illegal and amount to an abuse of the process of the Court and the same deserve to be quashed to their extent. 11. Resultantly, the misc. petition is partly allowed. The proceedings of the Criminal Case No. 16/2010 titled as `Mohd. Rafiq v. Smt. Shahin Naz & Ors. pending in the Court of the learned Addl. 11. Resultantly, the misc. petition is partly allowed. The proceedings of the Criminal Case No. 16/2010 titled as `Mohd. Rafiq v. Smt. Shahin Naz & Ors. pending in the Court of the learned Addl. Civ Judge (J.D.) & Judicial Magistrate, First Class No. 8, Jodhpur for the offences under Sections 494 and 120 - B I.P.C. to the extent of the petitioners Nos. 2, 3 and 4 are hereby quashed. Stay petition is also disposed of.Record be sent back forthwith.Petition partly allowed. *******