Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 88 (JK)

Nadiya v. State of J&K

2017-02-27

ALI MOHD.MAGREY, R.SUDHAKAR

body2017
JUDGMENT : Ali Mohd. Magrey, J. 1. Petitioner alleges that the Agreement of Marriage allegedly shown executed on 5th July, 2009, between her and one Samiullah Ganie S/o. Gh. Ahmad Ganie R/o. Nowpora, Bandipora and registered by the Court of Sub-Registrar, Tangmarg on 7th July, 2009, as also Nikahnama shown to have been executed on 5th April, 2009, between the petitioner and the said Samiullah Ganie are based on fraud. Petitioner is seeking quashment of Marriage Agreement as also Nikahnama with further relief, which is extracted as under: a. Quashment of marriage agreement forming Annexure P-1. b. A direction to conduct a full dressed enquiry against the culprits who are behind the scene and an action subsequently against the respondent No. 1 under the relevant provisions of law. c. A direction to the respondent No. 2 to ensure that no threat/harassment is caused to the life and liberty of the petitioner and his family at the hands of private respondent. d. A direction to the respondent No. 2 to lodge an FIR against the private respondent under the relevant provisions of law. 2. This Court in terms of order dated 23.11.2016, taking note of the seriousness of the matter, asked the registry to seek presence of respondent No. 4 with further direction to transmit record of the trial to the learned Principal District and Sessions Judge, Baramulla. The operative portion of the order para 12 is extracted as under: (i) The Registrar Judicial shall forthwith transmit the records to the learned Principal Sessions Judge, Baramulla, who shall ensure prompt and speedy trial of the case by fast tracking it. (ii) In order to ensure the continued attendance of the accused persons before the Court during trial, the learned Principal Sessions Judge is directed to take all possible legal steps contemplated by law to secure their presence. Warrants if issued shall be properly executed by the police authority. (iii) The learned Principal Sessions Judge shall ensure that the case is heard on day to day basis. In the event the Court is constrained to issue warrants, the same shall be got executed through the Sr. Superintendent of Police concerned. If any Police authorities refuse to co-operate or shows lethargy, the matter be referred to this Court for appropriate directions and order. In the event the Court is constrained to issue warrants, the same shall be got executed through the Sr. Superintendent of Police concerned. If any Police authorities refuse to co-operate or shows lethargy, the matter be referred to this Court for appropriate directions and order. (iv) The Principal Sessions Judge, Baramulla, shall submit fortnightly status reports in relation to the progress of the trial of the case to this Court through the Registrar Judicial without fail. The learned Principal Sessions Judge is required to explain the reasons for the delay that has happened so far. (v) The Registrar Judicial is directed to issue notice/summons for appearance of respondent No. 4, either personally or through his counsel, before this Court on the next date of hearing. The notice/summons to be served on respondent No. 4 through the process serving agency of the Principal District and Sessions Judge, concerned and also other modes of service indicating the date of hearing as 19th December, 2016. The timely issue of the Notice/summons and its service shall be ensured by the Registrar Judicial; and (vi) The Registrar Judicial, Srinagar, shall fax a copy of this order to the learned Principal District and Sessions Judge, Baramulla, for his information and compliance. 3. When this matter was called on 16th February, 2017, respondent No. 4 being not present, therefore, Sr. Superintendent of Police, Baramulla was asked to ensure presence of respondent No. 4-Samiullah Ganie before this Court on 27th February, 2017. 4. Today respondent No. 4 as well as his counsel appeared and voluntarily and willingly submitted before the Court that the contents of the marriage agreement shown to be executed between him and the petitioner was factually incorrect, as the petitioner has never signed the aforesaid Marriage Agreement as also the Nikahnama. 5. When asked, respondent No. 4 further submitted that he is ready to put an undertaking before the Court to this effect and file the same in the shape of an affidavit. Respondent No. 4 filed an affidavit recorded in urdu and translated by Advocate Mr. M.M. Iqbal, on the asking of the Court reads as follows: "Before the Hon'ble High Court of Jammu and Kashmir At Srinagar In the case of: Nadiya Versus State & Ors. In the matter of: Affidavit in OWP No. 231/2010 I, Samiullah Ganie S/o. Gh. Respondent No. 4 filed an affidavit recorded in urdu and translated by Advocate Mr. M.M. Iqbal, on the asking of the Court reads as follows: "Before the Hon'ble High Court of Jammu and Kashmir At Srinagar In the case of: Nadiya Versus State & Ors. In the matter of: Affidavit in OWP No. 231/2010 I, Samiullah Ganie S/o. Gh. Ahmad Ganie R/o. Nowpora Bandipora do hereby solemnly affirm and declare on oath as under: That the Nikahnama dated 5th of April, 2009 & Marriage agreement dated 5th of July, 2009 is in question before this Hon'ble Court through the medium of above titled writ petition. That no marriage either in accordance with Muslim personal law Annexure P-1 & Annexure P-2 in writ petition is invalid both in law and facts. That I confirm the statements made by Tanveer Ahmad did not sign with disputed Nikahnama/Marriage Agreement. The I, Samiullah Ganie/2Deponent unconditionally apologies for the pain caused to the petitioner/Nadiya. That I undertake and assure not cause any hindrance to her in any manner in the future. That the petitioner/Nadiya has not to signed the disputed Nikahnama and Marriage Agreement and I take responsibility for my irrational act. That I will accord to respect her femininity and take responsibility for my irrational and illegal act. DEPONENT Verification: Verified that the averments made hereinabove are true and correct to the best of my knowledge and nothing has been concealed therein. DEPONENT" 6. The original affidavit in urdu signed in the presence of witnesses is taken on record. 7. The contents of the aforesaid affidavit reveal that the respondent No. 4 has caused to affirm the agreement without knowledge of petitioner and the petitioner has not signed the Marriage Agreement as also Nikahnama. It is further stated in the affidavit that Tanveer Ahmad has also not signed the marriage agreement and the Nikahnama as witness. Accordingly, respondent No. 4 has conceded that the Nikahnama and the Marriage Agreement dated 5th July, 2009 is a nullity and invalid in law. He stated that he has respect for petitioner and her family and that he has offended the petitioner by his irrational act. It is also evident from his submission that the petitioner-Nadiya did not confirm to marriage with Samiullah Ganie at any point of time and, therefore, it is a case of false Nikahnama document as well as false and fabricated Marriage Agreement. 8. It is also evident from his submission that the petitioner-Nadiya did not confirm to marriage with Samiullah Ganie at any point of time and, therefore, it is a case of false Nikahnama document as well as false and fabricated Marriage Agreement. 8. In view of the stand taken by the said Tanveer Ahmad and respondent No. 4, as reflected in the affidavit, it is evident that petitioner has neither executed the alleged marriage agreement nor appeared before the Sub-Registrar, Tangmarg, to sign the fabricated contract of Marriage Agreement. It is a case of false document created by the respondent No. 4. The case, on the face of it, is a admitted case of fabrication of Marriage Agreement and the signature of the petitioner has been forged. The Nikahnama is a nullity and invalid in law. 9. In view of the submission on oath made by the respondent No. 4, in the presence of his advocate who also endorses the valid statement of Samiullah Ganai, it is evident that there was no valid Marriage Agreement executed on 5th July, 2009 and there was no valid Nikahnama in the eyes of law. We therefore, hold that there is no valid Marriage Agreement between the petitioner and Samiullah Ganie. The Nikahnama is false and a nullity in law. The Marriage Agreement executed on 5th July, 2009 and registered before Sub-Registrar, Tangmarg on 7th July, 2009, is set-aside and shall stand deleted. 10. Copy of the order passed today by this Court shall be send to Sub-Registrar, Tangmarg for correcting the record forthwith on receipt of this order. Copy of the corrected proceeding to be given to the petitioner and to the registry for record. 11. Accordingly, the instant writ petition is allowed in the above terms. A copy of the urdu affidavit signed by Samiullah Ganai to be given to petitioner Nadiya as also the order of this Court. 12. Rest of the proceedings before the Trial Court shall proceed as per law. 13. In view of the above order, Mr. Mushtaq Ahmad, Head Constable, who appeared before this Court in terms of previous Court order, is hereby relieved.